1
Fair Work Act 2009
s.604—Appeal of decision
Inna Grabovsky
v
United Protestant Association of NSW Ltd T/A UPA
(C2014/6273)
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
SENIOR DEPUTY PRESIDENT DRAKE
COMMISSIONER MCKENNA SYDNEY, 29 OCTOBER 2014
Appeal against decision [2014] FWC 5634 of Deputy President Booth on 20 August 2014 in
matter number C2014/3313 - s.739 application for Commission to deal with dispute in
accordance with dispute settlement procedure in enterprise agreement - jurisdictional
objection to arbitration of workload matters - enterprise agreement provides for arbitration
of workload matters only where agreed by parties - no agreement by employer - no arguable
case of appealable error - permission to appeal not granted.
[1] This is an application for permission to appeal and, if granted, an appeal by Mrs Inna
Grabovsky (the applicant) against a decision by Deputy President Booth given on 20 August
2014.1 In the decision, the Deputy President upheld a jurisdictional objection by the
applicant’s employer, United Protestant Association of NSW trading as UPA (the
respondent), to the Fair Work Commission (the Commission) arbitrating in relation to a
dispute concerning staff workloads.
[2] In the appeal proceedings, Mrs Grabovsky was represented by her husband, Mr Igor
Grabovsky. The respondent was granted permission to be represented by Ms J. Paingakulam
of counsel. Written outlines of submissions were filed by the applicant on 25 September and
17 October 2014, and by the respondent on 14 October 2014. In the hearing on 22 October
2014, the parties were given an opportunity to speak to the written submissions.
[3] The background to the dispute between the parties is referred to in the decision of
Deputy President Booth. Briefly, the applicant has been employed since 2004 as a part-time
care service employee at one of the respondent’s residential aged care facilities. Since August
2013 the applicant has been absent from work and there is a continuing dispute between the
parties as to her entitlements to sick leave and workers’ compensation payments.
[4] In March 2014, the applicant lodged an application pursuant to s.739 of the Fair Work
Act 2009 (the Act) for the Commission to deal with a dispute in relation to her employment in
accordance with the dispute settlement procedure in clause 42 of the Aged and Home Care,
1 Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA [2014] FWC 5634.
[2014] FWCFB 7533
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 7533
2
NSWNA and HSU East Multi-Enterprise Agreement 2011-2014 (the Agreement). The dispute
concerned the applicant’s classification, payment for undertaking higher duties, workload and
alleged adverse action taken by the respondent against her.
[5] The referred dispute came before the Deputy President for conciliation and, after
conciliation failed, the matter was to be listed for arbitration. The respondent objected to the
proposed arbitration in relation to some of the disputed matters on the basis that the
Agreement does not provide the Commission with power to arbitrate with respect to
workloads other than with the agreement of the parties.
[6] The relevant clauses of the Agreement are clause 33 which deals with Workload
Management and clause 42 which provides for Grievance and Dispute Resolution Procedures.
For present purposes, it is sufficient to refer to the following parts of those clauses.
[7] Under clause 33 the parties to the Agreement acknowledge the responsibility to
maintain a balanced workload and recognise the adverse effects that excessive workloads may
have on employees and the quality of care. The clause sets out procedures for the resolution of
workload issues within each facility and provides in clause 33.4:
“33.4 If the issue is still unresolved, the employee/s may advance the matter through
Clause 42 - Grievance and Disputes Resolution Procedures. Arbitration of workload
management issues may only occur by agreement of all parties.”
[8] Clause 42 sets out the general grievance and dispute resolution procedures and
provides for the reference of disputes to the Commission as follows:
“42.5 If a dispute is unable to be resolved at the workplace, in accordance with
subclause 42.4, a party to the dispute may refer the matter to FWA or other appropriate
statutory tribunal.
42.6 The parties agree that FWA shall have the power to do all such things as are
necessary for the just resolution of the dispute including:
(a) mediation, conciliation and, with the exception of disputes arising under
clause 33 – Workload Management, arbitration; and
(b) arbitration, for disputes arising under clause 33 – Workload management,
only with the agreement of the parties.”
[9] The Deputy President considered the provisions of the Agreement and the Act and
relevant authorities relating to the principles of interpretation and the powers of the
Commission.2 The Deputy President concluded that:
“These decisions of the Commission have made it clear that the Commission may only
exercise the powers given to it by the parties to the agreement and that an enterprise
agreement can be approved by the Commission notwithstanding the agreement
requires consent for the Commission to settle some or all matters by arbitration. The
2 Ibid at [15]-[30].
[2014] FWCFB 7533
3
submissions made on behalf of Mrs Grabovsky are at odds with both of these
propositions and accordingly must fail.”3
[10] The Deputy President upheld the respondent’s jurisdictional objection to the
Commission arbitrating in respect to workloads. The other parts of the dispute were listed for
arbitration by the Deputy President at a hearing scheduled for 17 November 2014 and
directions were issued for the filing of submissions and evidence. After the appeal was
lodged, a stay was ordered in regard to the further proceedings before the Deputy President.4
[11] In the appeal proceedings, the applicant raised three main matters. These concerned
the representation of the respondent as a corporate entity, the exclusion of the workload issues
from the scope of the arbitral proceedings and the provision of payslips.
[12] We consider that only the workload management question is properly before us in the
appeal. We note that the representation issue has been resolved, at least in part, by the
provision to the applicant of a copy of the Form F53 Notice of Representative Commencing
to Act dated 13 March 2014. This form was signed by the respondent’s General Manager and
authorised the representation of the respondent by Ms McConville. The notice was filed in the
initial proceedings although Mr Grabovsky submitted he had not previously seen the notice.
In relation to the issue regarding the provision of pay slips, we note the rulings given in
transcript by the Deputy President on 30 June 2014 and that the Commission does not have
jurisdiction under ss.536 and 546 of the Act to make the orders sought by the applicant.
[13] It is clear from the Agreement (see clause 33.4 and clause 42.6(a)) that there must be
agreement by the parties before arbitration of a dispute about workload management issues
can be effected. The respondent has indicated that it does not consent to the Commission
arbitrating any dispute concerning workload management issues. It is also clear from the
relevant provisions of the Act that the Commission may arbitrate only in relation to a dispute
under a dispute resolution procedure in an enterprise agreement where it is expressly
authorised to do so.5
[14] It has not been shown in the appeal that the relevant provisions of the Agreement are
unlawful, either within the meaning of s.194 of the Act or because of any conflict with the
provisions of the Work Health and Safety Act 2011 (Cth).
[15] An appeal under s.604 of the Act may be pursued only with the permission of the
Commission. Section 604(2) requires the Commission to grant permission to appeal if it is
satisfied that it is in the public interest to do so.
[16] We do not consider that the applicant has in the present matter demonstrated an
arguable case as to appealable error in relation to the decision of the Deputy President. The
Deputy President correctly interpreted the relevant clauses of the Agreement and correctly
determined that there was no power in the Commission to arbitrate with respect to the
workload issue given the objection by the respondent.
3 Ibid at [30].
4 Transcript of proceedings before Justice Boulton, Senior Deputy President, 23 September 2014, at PN86.
5 See ss.595, 738 and 739, especially ss.595(3) and (5), s.738(b), and s.739(3) and (4).
[2014] FWCFB 7533
4
[17] Further, it has not been demonstrated that there are any matters raised by the appeal
such that it would be in the public interest to grant permission to appeal.6
[18] Accordingly, we have decided not to grant permission to appeal in this matter. We
have also decided to set aside the stay order made on 26 September 20147 so that proceedings
before the Deputy President relating to the other matters in dispute between the parties may
proceed.
SENIOR DEPUTY PRESIDENT
Appearances:
I. Grabovsky on behalf of the applicant.
J. Paingakulum of counsel with S. Puxty, solicitor, for the respondent.
Hearing details:
2014.
Sydney:
22 October.
Printed by authority of the Commonwealth Government Printer
Price code A, PR556961
6 See s.604(2) and the consideration of the meaning of “public interest” in GlaxoSmithKline Australia Pty Ltd v Makin [2010]
FWAFB 5343 at [26] - [27].
7 PR555913.
