1
Fair Work Act 2009
s.604 - Appeal of decisions
Inna Grabovsky
v
United Protestant Association of NSW Ltd t/a UPA
(C2015/3729)
VICE PRESIDENT HATCHER SYDNEY, 5 JUNE 2015
Appeal against decision [2015] FWC 2504 of Vice President Lawler at Sydney on 10 April
2015 in matter number C2014/3313.
[1] This decision reproduces in edited form the decision and reasons which were stated on
transcript at the conclusion of the hearing conducted in relation to this matter on 14 May
2015.
[2] On 29 April 2015, Ms Inna Grabovsky filed a notice of appeal in respect of a decision
issued by Vice President Lawler on 10 April 20151. The appeal notice, amongst other things,
seeks that the decision under appeal be stayed. The decision was issued arising out of an
arbitration conducted in accordance with the dispute resolution procedure in the Aged and
Home Care, NSWNA and HSU East Multi-Enterprise Agreement 2011-2014.
[3] The dispute concerned whether Ms Grabovsky had been correctly classified as a Care
Service Employee Grade 2 under the agreement in respect of her employment at an aged care
facility operated by the respondent and located at Wahroonga in New South Wales. The
premise of Ms Grabovsky's case was that an employee classified at Grade 2 could not be
required to administer medicines and that because Ms Grabovsky had been required to
undertake duties of this nature, her classification was incorrect and should be that of a Care
Service Employee Grade 4, Level 2. Ms Grabovsky also contended that other aspects of her
duties required her to be placed in a higher classification.
[4] In his decision, Vice President Lawler rejected these propositions. He found that Ms
Grabovsky was correctly classified as a Care Service Employee Grade 2. He specifically
rejected the proposition that there was any legal impediment to an employee classified at that
grade being required to administer medicine if appropriately trained.
[5] The grounds advanced for the grant of a stay are identified in the notice of appeal as
follows:
1 [2015] FWC 2504
[2015] FWC 3313
DECISION
AUSTRALIA FairWork Commission
[2015] FWC 3313
2
“With his decision, VP Lawler is allowing and endorsing the administration of
medicines by unqualified personnel that constitutes professional negligence or/and
intentional harm to the person (depending on the motives and results of such an
administration). Malpractice and professional misconduct of the respondent already
caused very serious harm to the residents/patients and the employees and will cause
further danger should it be allowed by the Commission.
The decision of VP Lawler permits (any) employer to direct unqualified personnel -
personnel who is not registered with the Regulator and not legally permitted to
administer medicines - to administer medicines to the residents/patients in Aged Care
facilities.”
[6] In oral submissions today, Mr Grabovsky, who appeared on behalf of the appellant,
emphasised that upon the grounds identified a stay should be granted in the public interest. In
his submissions he disowned the proposition that a stay was necessary in order to prevent any
particular prejudice being incurred by Ms Grabovsky herself.
[7] The principles concerning whether a stay application will be granted are well
established. They are stated in the decision of Edghill v Kellow-Falkiner Motors Pty Ltd2 as
follows:
“In determining whether to grant a stay application the Commission must be satisfied
that there is an arguable case with some reasonable prospects 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.”
[8] However, the application of those principles is necessarily subject to it being
demonstrated at the outset by the applicant for a stay that there is an operative decision with
ongoing future effect capable of being stayed under section 606(1) of the Fair Work Act 2009
(Act).3
[9] I do not consider that Ms Grabovsky has demonstrated this to be the case here. The
decision under appeal did not involve the making of any order or determination with ongoing
legal effect. In substance, Vice President Lawler declined to interfere with the legal and
practical status quo that operated with respect to Ms Grabovsky's employment. In that
circumstance, there is nothing capable of being stayed under section 606(1) of the Act.
[10] The grounds for the stay which have been identified really go to matters external to the
decision under appeal. What Ms Grabovsky asks that I do is to make an order in the public
interest requiring changes to practices which apparently already exist in the respondent's
workplace, and perhaps elsewhere. I do not consider that there is any power to do this by way
of a stay order under section 606(1) of the Act.
[11] In any event, I do not consider that the balance of convenience favours the grant of a
stay in circumstances where;
2 [2000] AIRC 785, Print S2639
3 Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited [2014] FWC 4276 at [11]
[2015] FWC 3313
3
(1) the decision did not alter Ms Grabovsky's pre-existing position;
(2) Ms Grabovsky is not currently working due to illness and is unlikely to do so
anytime soon; and
(3) the matter has been listed for hearing on permission to appeal on 17 June 2015,
only some four and a half weeks away.
[12] In those circumstances I cannot identify any prejudice to Ms Grabovsky that would
occur if a stay order was not granted and as earlier stated it was not contended on her behalf
that there would be any such prejudice. Having reached these conclusions, it is not necessary
for me to express a view as to whether the appeal is arguable with reasonable prospects of
success. The stay application is dismissed.
VICE PRESIDENT
Appearances:
Mr I. Grabovsky on behalf of Ms I. Grabovsky
Mr S. Puxty for United Protestant Association of NSW Ltd t/a UPA
Hearing details:
2015.
Sydney:
14 May.
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OF THE FAIR WORK MISSION THE
