Sohail Bacha v Ngaanyatjarra Health Service

[2018] FWC 2445

[2018] FWC 2445

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sohail Bacha
v
Ngaanyatjarra Health Service
(U2018/1171)

COMMISSIONER SIMPSON BRISBANE, 22 MAY 2018

Application for an unfair dismissal remedy – jurisdictional objection – applicant earned over high income threshold – applicant covered by the Aboriginal Community Controlled Health Services Award 2010 – jurisdictional objection dismissed

Background

[1] This matter concerns an application pursuant to s.394 of the Fair Work Act 2009 (the Act) by Mr Sohail Bacha who alleges that the termination of his employment from Ngaanyatjarra Health Service (NHS) was unfair.

[2] Mr Bacha filed his application with the Fair Work Commission (the Commission) on 6 February 2018. NHS filed its Form F3 Employer Response on 13 February 2018 where it raised a jurisdictional objection on the basis Mr Bacha earned more than the high income threshold, which is currently $142,000. There is no dispute that Mr Baca earned more than the high income threshold.

[3] Mr Bacha initially submitted that he was covered by the Health Professionals and Support Services Award 2010 (HPSSA)therefore giving the Commission jurisdiction to determine the matter in accordance with s.382(b)(i).

[4] The matter was listed for Conciliation on 5 March 2018 which was unsuccessful. The matter was then referred to my chambers.

[5] I listed the matter for a Directions Hearing on 19 April 2018. I raised with the parties that Mr Bacha may have been covered by the Aboriginal Community Controlled Health Services Award 2010 (ACCHSA). I directed the parties to file any submissions and or witness statements in relation to whether Mr Bacha was covered by either the ACCHSA or the HPSSA by Friday 27 April 2018. The parties consented for the issue of jurisdiction to be dealt with on the papers.

[6] Submissions filed also raised a separate issue as to whether an application Mr Bacha made to the Anti-Discrimination Commission meant that that this application should be dismissed because of the multiple actions provisions in s.725 to s.732 of the FW Act.

[7] Subsequent to the filing of submissions I requested that the representative of Mr Bacha provide me a copy of the Rules of NHS referred to in its written submissions.

Legislation

Section 382 of the Act provides:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

Aboriginal Community Controlled Health Services Award 2010

Is the NHS covered by the ACCHSA?

[8] NHS submitted that part 3 of the ACCHSA defines an Aboriginal community controlled health service as being incorporated Aboriginal organisations, initiated and based in an Aboriginal community:

      “3. Definitions and interpretation

[Varied by PR997772, PR503658, PR546118]

3.1 ln this award, unless the contrary intention appears:

Aboriginal community controlled health services are incorporated Aboriginal organisations, initiated and based in an Aboriginal community. They are governed by a representative Aboriginal Board of Management which is elected by the local Aboriginal community. They deliver holistic and culturally appropriate health and well-being services to the Aboriginal community which controls them.”

[9] NHS submitted that it is excluded from the definition as the NHS was not initiated nor based in an Aboriginal community. NHS submitted it was initiated in the township of Alice Springs and is based and continues to be based in Alice Springs. Whilst the service does provide health services to Aboriginal communities on the Ngaanyaljarra lands in Western Australia, it itself is not an 'Aboriginal community controlled' health service.

[10] NHS submitted it relies on external funding, the provision of external specialist and other clinical services on a fly-in/fly out basis. The NHS relies on 80% of public grant funding for its income.

[11] NHS submitted therefore that Mr Bacha was not employed by an employer covered by ACCHSA and his work and duties completed were not for an employer covered by ACCHSA and therefore is not covered by ACCHSA.

[12] Mr Bacha submitted the NHS is an Indigenous Corporation registered with the Office of the Registrar of Indigenous Corporations (“ORIC”) assigned the registration number ICN 557. He submitted the primary object of the Corporation is to alleviate the poverty, sickness, misfortune and disability, suffering, distress and helplessness amongst Yarnangu, the Aboriginal people of the Ngaanyatjarra Lands. Mr Bacha submitted the primary object is to be achieved by managing and operating a Yarnangu owned and controlled health service on the Ngaanyatjarra Lands. MR Bacha submitted the ACCHSA applies to NHS.

[13] I have considered the respective submissions, and also referred to in the information available on the Office of the Registrar of Indigenous Corporations website referred to in the submissions of Mr Bacha, and the Consolidated Rule Book of the NHS and the Ngaanyatjarra Council (Aboriginal Corporation) ICN:101. I am satisfied from the material before me including the history of the NHS, how it is governed and the services it delivers that the NHS is an employer falling within the coverage of the ACCHSA.

Is Mr Bacha covered by the ACCHSA?

[14] NHS submitted that if Mr Bacha was covered by the ACCHSA then he would have fallen under the highest worker grade being an Aboriginal health worker grade 4 and would have performed a senior co-ordinating role in respect of Aboriginal Health Workers within an Aboriginal community controlled health service. NHS submitted Mr Bacha did not coordinate Aboriginal health workers and did not work within an Aboriginal community controlled health service. The position is described as follows:

“8.1.4 Aboriginal Health Worker Grade 4 means:

(a) A person who performs a senior co-ordinating role in respect of Aboriginal Health Workers within an Aboriginal community controlled health service. An Aboriginal Health Worker with either a Diploma of Aboriginal and/or Torres Strait Islander Primary Health Care (Practice) or Diploma of Aboriginal and/or Torres Strait Islander Primary Health Care (Community) or other qualifications or experience deemed equivalent by the Aboriginal community controlled health service will be classified at this grade.

(b) An Aboriginal Health Worker required by State or Territory legislation to maintain registration as a condition of their employment who holds a either Diploma of Aboriginal and/or Torres Strait Islander Primary Health Care (Practice) or Diploma of Aboriginal and/or Torres Strait Islander Primary Health Care (Community) or equivalent will be classified as no less than a Grade 4 Level 2 Aboriginal Health Worker and their classification descriptor will be Aboriginal Health Worker Practitioner Grade 4 Level 2.

It is desirable that staff at this grade should have Aboriginal knowledge and cultural skills-level 2.”

[15] NHS conceded that Mr Bacha’s 16 months of experience in his role at NHS may amount to the desirable aboriginal knowledge and cultural skills; however submitted his duties were not clinical as he was not registered in Australia by the Australian Health Practitioners Registration Authority (AHPRA). Furthermore, it submitted Mr Bacha did not have registration or qualifications as an Aboriginal Health worker at any time before or during his employment with NHS.

[16] NHS submitted the 'Position Description' statement refers to the ACCHSA and that this inclusion was an administrative oversight.

[17] NHS submitted Mr Bacha was not covered by the ACCHSA.

[18] Mr Bacha submitted that it is arguable that following the purported restructure of NHS, that his duties would best be described at the lower Grade 6 level (in the Administration Steam) in the ACCHSA.

“B.2.6 Grade 6

(a) Positions at this grade may manage the operations of an organisational element usually under limited direction. Positions at this grade undertake various functions, under a wide range of conditions to achieve a result in line with the goals of the health service. Immediate subordinate positions may include staff in a technical or professional structure, in which case supervision may involve the exercising of technical or professional skills or judgment.

(b)Positions at this grade are found in a variety of operating environments and structural arrangements. The primary areas may be:

(i) Managing the operations of a discrete organisational element usually under limited direction;

(ii) Under limited direction in relation to priorities and work practices provide administrative support to a particular program or activity; or

(iii) Providing subject matter, expertise or policy advice, to senior employees, the Chief Executive Officer, or the Board of Management including technical or professional advice, across a range of programs or activities undertaken by the health service.

(c)Positions at this grade would be expected to set and achieve priorities, monitor work flow and/or manage staffing resources to meet objectives.

It is desirable that staff at this grade have Aboriginal knowledge and cultural skills - level 2.”

[19] Grade 7 and Grade 8 are set out below:

“B.2.7 Grade 7

(a) Positions at this grade, under limited direction, usually manage the operations of an organisational element, or undertake a management function, or provide administrative, technical, or professional support to a particular program or activity, across a range of administrative or operational tasks to achieve a result in line with the goals of the health service.

(b) Positions at this grade may undertake a management function involved in the administration of a program or activity within an organisation. This includes the provision of advice or undertaking tasks related to the management or administration of a program or activity, service delivery or corporate support function, including project work, policy, technical, professional or program issues or administrative matters. Liaison with other elements of the organisation, government agencies, state and local authorities and community organisations can be a feature.

(c) Positions at this grade may represent the health service at meetings, conferences and seminars. In some circumstances the supervisor or subordinates may be, or include staff in technical or professional structures, in which case supervision is for administrative purposes only. In all other circumstances, supervision may involve the exercise of technical or professional skill or judgment.

It is desirable that staff at this grade have Aboriginal knowledge and cultural skills—level 2.

B.2.8 Grade 8

Positions at this grade will be the Chief Executive Officer of an Aboriginal community controlled health service other than those classified at Grade 7 who reports to and is responsible for the administration of the health service to the Board of Management and to whom heads of programs or activities within the health service report and are responsible.

It is desirable that staff at this grade have Aboriginal knowledge and cultural skills—level 3.”

[20] There were competing views from reading the material filed about whether the organisational structure had been changed before the termination of Mr Bacha, and thus impacting on what classification would have covered him at the time of his termination. If that matter needed to be determined in order to decide the jurisdictional objection it would in all likelihood have been necessary, despite the mutual agreement of the parties to have the objection determined on the papers, to hear evidence on that issue.

[21] I have determined however that it is unnecessary to hear evidence on that disputed issue because I am satisfied that the ACCHSA covers Mr Bacha, and its breadth of coverage makes it unnecessary to consider his level of seniority at the time of termination. It is clear from the employment contract Mr Bacha was offered and he accepted in 2016 that his role was ‘Population Health Manager’. The contract’s own terms were contradictory in that clause 4 of the contract said he would be employed at Level 4, paypoint 4 of the HPSSA, and clause 6 repeated that the relevant Award was the HPSSA, however the position description at attachment A of the contract described the award coverage as being under the ACCHSA.

[22] Without setting out in detail the contents of the position description, it is apparent the role had senior managerial responsibility. He was notified of a subsequent contract variation on 20 June 2017 that again described his role as being under the HPSSA and not the ACCHSA.

[23] Clause 13 of the ACCHSA states that classification definitions are set out in Schedule B. Schedule B includes separate streams for Aboriginal Health Workers, Administrative, Dental and Ancillary. I agree with the NHS submission that Mr Bacha is not covered by the any of the classifications in the Aboriginal Health Worker stream. The NHS does not however in its submission address the Administrative Stream of the ACCHSA.

[24] Mr Bacha’s submission refers to Level 4 in the HPSSA and Level 7 in the ACCHSA. The Administrative Stream in the ACCHSA could just as easily be titled the Administrative and Management Stream as it is clear the classification stream is intended to cover all levels of management up to and including the Chief Executive Officer who reports to the Board as set out in Level 8. Given I have found the NHS is covered by the ACCHSA there is no question that the Administrative Stream extends to cover Mr Bacha at his level of management and responsibility.

[25] Whilst it is unnecessary for me to address the issue, for completeness, even if I were to be wrong and the ACCHSA did not have coverage of the NHS, I am persuaded that Mr Bacha would still be award covered because Level 4 of the HPSSA would apply to him, as his contract said it did.

[26] NHS referred to the case of Cubillo v North Australian Aboriginal Family Violence Legal Service 1 (Cubillo) where it was held that a "modern award" did cover a high-level manager and therefore gave jurisdiction to the Commission to hear the matter. NHS submitted however this case is distinguishable as the Award in that case specifically expressed that high level management was a part of the highest level employee classifications.2

[27] Mr Bacha submitted that whether the Award applied to him turns on the terms of the Award itself and its application to his duties and responsibilities at the time of dismissal. Mr Bacha referred to Schedule B at B.2.4 of the HPSSA which defines a health professional for the purposes of inclusion under the Award as follows:

       “Health Professional-level 4

A health professional at this level applies a high level of professional judgment and knowledge when performing a wide range of novel, complex, and critical tasks, specific to their discipline.

An employee at this level:

● has a proven record of achievement at a senior level;

● has the capacity to allocate resources, set priorities and ensure budgets are met within a large and complex organisation;

● may be responsible to the executive for providing effective services and ensuring budget/strategic targets are met;

● supervises staff where required; and

● is expected to develop/implement and deliver strategic business plans which increase the level of care to customers within a budget framework.”

[28] Mr Bacha conceded that he was one of the Senior Management Team, but maintained his argument about having his level of seniority reduced after the restructure. Whilst NHS argued that the position of Population Health Manager does not appear in Schedule C I am inclined to the view his role would have fallen within the meaning of a ‘Health Information Manager’ described in Schedule C of the HPSSA.

[29] NHS submitted the words ‘must not’ at s143(7) creates an obligation under the Act prohibiting the Award from including and therefore covering the class of employees being high level managers. NHS referred to the case of Ralfe and Minister for lmmigration and Border Protection (Citizenship) 3 to support this submission.

[30] NHS referred to the case of ln Carpenter v Corona Manufacturing Pty Ltd (2002) 122 lR387, a Full Bench decision of the Australian lndustrial Relations Commission that found:

“ln our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed.”

[31] NHS submitted Mr Bacha’s position description states that the purpose of the Manager Population Health (MPH) role is the management of all comprehensive health services provided by NHS on the Ngaanyatjarra lands. The MPH is responsible for ensuring that health services delivery is effective, performance targets are met and that services are delivered the Malparara way (i.e. the synergy from working together).

[32] NHS submitted the mandatory selection criteria at page 2, paragraph 4 of the position description statement requires a tertiary qualification within a recognised health profession and current professional registration. This requirement was imperative as the Applicant was ultimately responsible for clinical operations and clinical staff.

[33] NHS submitted that by way of comparison, the conditional term 'specific to their discipline' in Schedule B B.2.4 of the HPSSA relates to the area of expertise or experience in a health role. It submitted Mr Bacha was not required to perform any duties related to his ‘discipline of general practitioner’. Nor was he registered in Australia to perform any duties under any health discipline. NHS submitted the principal purpose of the Applicant's role was to manage health professionals and services and was not to perform any duties specific to his discipline, that being a general practitioner. Therefore, the Mr Bacha’s role does not fall within the HPSSA's own definition of a Health Professional for the purposes of the Award.

[34] Mr Bacha submitted that throughout the transition from one organisational structure to the next, his job description and pay level remained the same. This is consistent with clause B.2.4 of the Award which makes specific reference to the application of high level professional judgement and knowledge to tasks “specific to their discipline” and that Schedule C contains a List of Common Health Professionals. The duties being performed by the Applicant at the time of dismissal fell within the recognised health professional discipline of Population Health Manager which would fit as a Schedule C category of List of Common Health Professionals. His role is also consistent with his Masters Degree qualification in Health Service Management completed at Griffith University in Queensland.

[35] I have had regard to the decision in Cubillo referred to by NHS. Similarly to the facts in that matter, it is apparent the HPSSA was intended to be a modern award covering managers at a senior level, and I am also satisfied the specific role of Population Health Manager falls within the scope of the Health Professional Stream. I am inclined to the view Mr Bacha’s position, even prior to the disputed restructure would have been covered by the HPSSA. For the reasons set out above even if Mr Bacha was not covered by the ACCHSA, I am satisfied his role would have been covered by the HPSSA without needing to have regard to the disputed question about whether a restructure had diminished his classification level.

Anti-Discrimination Commission Application

[36] NHS raised an issue about Mr Bacha having lodged a complaint to the Anti-Discrimination Commission (NT) (ADC) on 5 March 2018 asserting that his dismissal was based on race. It submitted Mr Bacha’s ADC application has not been withdrawn or failed for want of jurisdiction at this time.

[37] NHS noted that even though Mr Bacha’s s.394 application predated his ADC application, given the reasoning in the Full Bench Decision of Du v University of Ballarat 4(Du), and having considered ss.725 and 732 of the FW Act, and the FW Bill Explanatory Memorandum, it submitted that whilst the complaint to the ADC remains on foot, the application under section 394 of the Act should be dismissed.

[38] I do not accept the position of NHS on this point. In Du, the applicant’s application to the Fair Work Commission was made after their application to the Victorian Equal Opportunity and Human Rights Commission, which is the reverse of the circumstances here. It is also debatable as to whether the application made to the ADC falls within the multiple applications provisions of the FW Act, however given the order of filing, the jurisdictional argument pertains to the ADC matter, not the FWC matter, and does not prevent Mr Bacha’s unfair dismissal application proceeding.

CONCLUSION

[39] On the basis of my conclusions above the jurisdictional objection must fail and is dismissed.

[40] The matter will be listed for a Directions Hearing on Thursday 24 May 2018 to determine a program for the substantive matter.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR606739>

 1   Cubillo v North Australian Aboriginal Family Violence Legal Service (U2011/8817) 2011 FWA 6818.

 2 Ibid at [33].

 3   Ralfe and Minister for lmmigration and Border Protection (Citizenship) [2016] AATA 898 (14 November 2016).

 4   Du v University of Ballarat [2011] FWAFB 5225 at [60].