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
DEPUTY PRESIDENT KOVACIC
COMMISSIONER JOHNS SYDNEY, 25 JUNE 2015
Permission to appeal sought against decision [2015] FWC 2504 of Vice President Lawler at
Sydney on 10 April 2015 in matter number C2014/3313.
Introduction
[1] On 29 April 2015, Mrs Inna Grabovsky filed a notice of appeal in which she sought
permission to appeal a decision of Vice President Lawler issued on 10 April 20151 (Decision).
The Decision was made as a result of the arbitration of a dispute in accordance with the
dispute resolution procedure in the Aged and Home Care, NSWNA and HSU East Multi-
Enterprise Agreement 2011-2014 (Agreement). The dispute concerned whether Mrs
Grabovsky, an aged care worker employed by the respondent, had been correctly paid under
the classification of Care Service Employee (CSE) Grade 2 under the Agreement. Mrs
Grabovsky contended in the arbitration that she should have been paid as a CSE Grade 4
Level Two, or alternatively a CSE Grade 3, under the Agreement.
[2] The primary feature of Mrs Grabovsky's case in this respect was the proposition that
an employee classified at CSE Grade 2 could not be required to administer medicines. Mrs
Grabovsky contended that as she had been required to undertake duties of this nature, her
payment rate was incorrect and she should have been paid as a CSE Grade 4, Level Two. Mrs
Grabovsky also contended that other aspects of her duties required her to be placed in a higher
classification.
[3] In the course of the arbitration and particularly in this appeal application, Mrs
Grabovsky’s primary argument metamorphosed into a broader case that any direction to an
aged care employee who was not a health practitioner registered under the Health Practitioner
Regulation National Law 2009 (NSW) (the NSW enactment of national model legislation) to
“administer medicine” was unlawful. Both at first instance and on appeal this broader case
tended, at least from Mrs Grabovsky’s perspective, to overshadow the narrower industrial
issue which was the subject of the dispute.
1 [2015] FWC 2504
[2015] FWCFB 3926
DECISION
E AUSTRALIA FairWork Commission
[2015] FWCFB 3926
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[4] Mrs Grabovsky did not succeed in either her narrower or broader case at first instance.
In the Decision, Vice President Lawler found that Mrs Grabovsky was correctly classified and
paid as a CSE Grade 2. He also rejected the broader proposition that there was any legal
impediment to an employee classified at that grade being required to “administer medicine” in
the way that Mrs Grabovsky had been required to do in the performance of her duties.
[5] Mrs Grabovsky’s appeal notice identified the public interest grounds upon which
permission to appeal was sought as follows (emphasis and underlining in original):
“(1) The Member of the Commission exceeded his jurisdiction allowing and
endorsing administration of medicines by unqualified personnel that is a violation
of the existing legislation, regulations and Government Guidelines. It is in the public
interest to prevent the spread of such a practice anywhere in Australia.
(2) The Member’s decision is causing real and present danger to the general
population.
(3) The Member’s decision is manifestly unjust and it will cause further
substantial injustice to the Appellant should the leave for appeal not be allowed.
(4) The Member’s decision contradicts the legal principals [sic] of fair and just
conduct.
(5) The conduct of the Member caused disrepute to the Commission and must not
be allowed in the future.”
[6] The errors alleged in the Decision were that Vice President Lawler had acted upon
wrong principles, omitted all evidence of misconduct by the respondent, made a decision that
was manifestly unjust and which posed real and present danger to the general population, was
prejudiced and biased, fell into jurisdictional error, intentionally prevented the course of
justice, failed to take material considerations into account, mistook and misrepresented the
facts, and was responsible for errors on the face of the record.
[7] In her oral submissions in support of her application for permission to appeal, Mrs
Grabovsky emphasised her broader case concerning the legality of aged care employees not
registered as health practitioners under the Health Practitioner Regulation National Law
being required to administer medicines. Mrs Grabovsky insisted that this was an issue
attracting the public interest which justified the grant of permission to appeal.
Consideration
[8] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the
Commission’s powers on appeal are only exercisable if there is error on the part of the
primary decision maker.2 There is no right to appeal and an appeal may only be made with the
permission of the Commission. Subsection 604(2) requires the Commission to grant
permission to appeal if satisfied that it is “in the public interest to do so”. Permission to
appeal may otherwise be granted on discretionary grounds.
2 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[2015] FWCFB 3926
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[9] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.3 The public interest is not satisfied simply by the
identification of error, or a preference for a different result.4 In GlaxoSmithKline Australia Pty
Ltd v Makin a Full Bench of the Commission identified some of the considerations that may
attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance
and general application, or where there is a diversity of decisions at first instance so
that guidance from an appellate court is required, or where the decision at first
instance manifests an injustice, or the result is counter intuitive, or that the legal
principles applied appear disharmonious when compared with other recent decisions
dealing with similar matters...”5
[10] Other than the special case in s.604(2), the grounds for granting permission to appeal
are not specified. Considerations which have traditionally been treated as justifying the grant
of permission to appeal include that the decision is attended with sufficient doubt to warrant
its reconsideration and that substantial injustice may result if leave is refused.6
[11] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence
of appealable error.7 However, as earlier stated the fact that the Member at first instance made
an error is not necessarily a sufficient basis for the grant of permission to appeal.
[12] The proper subject matter of the dispute between Mrs Grabovsky and the respondent
concerned whether she had been properly paid and classified under the terms of the
Agreement which applied to her employment. The classification descriptors in the Agreement
relevant to this dispute were as follows (with underlining added as per paragraph [22] of the
Decision):
Care Services Employee Grade 2
1.3 Care Service Employee Grade 2 means an employee with relevant
experience who works individually or in a team environment, and is
responsible for the quality of their own work, subject to general supervision,
including compliance with documentation requirements as determined by the
employer.
Indicative tasks an employee at this level may perform are as follows:
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
4 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on
judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett
McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
5 (2010) 197 IR 266 at [27]
6 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481
7 Wan v AIRC (2001) 116 FCR 481 at [30]
[2015] FWCFB 3926
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Care Stream: Provide a wide range of personal Care Service to
residents, under limited supervision, in accordance with
Commonwealth and State Legislative requirements, and in accordance
with the resident’s Care Plan, including: assist and support residents
with medication utilising medication compliance aids; simple wound
dressing; implementation of continence programs as identified in the
Care Plan; attend to routine urinalysis, blood pressure, temperature and
pulse checks; blood sugar level checks etc and assist and support
diabetic residents in the management of their insulin and diet,
recognising the signs of both Hyper and Hypo-Glycaemia, recognise,
report and respond appropriately to changes in the condition of
residents, within the skills and competence of the employee and the
policies and procedures of the organisation; assist in the development
and implementation of resident care plans; assist in the development
and implementation of programs of activities for residents, under the
supervision of a Care Service Employee Grade 3 or above, or a
Diversional Therapist.
Support Stream: Assist a higher grade worker in the planning, cooking
and preparation of the full range of meals. Drive a Sedan or Utility.
Maintenance Stream: Undertake basic repairs to buildings.
Care Services Employee Grade 3
1.4 Care Service Employee Grade 3 means an employee who holds either a
Certificate Level III in Aged Care Work or other appropriate
Qualifications/Experience acceptable to the employer and:
(a) is designated by the employer as having the responsibility for
leading and/or supervising the work of others; or
(b) is required to work individually with minimal supervision and has
been designated by the employer as having overall responsibility for a
particular function within the residential aged care facility.
An employee who holds appropriate Trade Qualifications and is required to act
on them. Employees at this level may be required to plan, direct, and train staff
and comply with documentation requirements as determined by the employer
and assist in the development of budgets.
Indicative tasks an employee at this level may perform are as follows:
Care Stream: Coordinate and direct the work of staff. Schedule work
programs on a routine and regular basis. Develop and implement
programs of activities for residents. Develop resident care plans.
Support Stream: Responsible for the planning, ordering and preparing
of all meals. Responsible for the provision of domestic services.
[2015] FWCFB 3926
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Schedule work programs on a routine and regular basis. Coordinate and
direct the work of staff. Drive a Minibus or Larger Vehicle.
Maintenance Stream: Carry out maintenance, repairs, gardening and
other tasks falling within the scope of trades skills. Undertake the more
complicated repairs to equipment and appliances calling for trades
skills. Coordinate and direct the work of staff performing gardening
duties. Schedule work programs on a routine and regular basis.
Care Services Employee Grade 4
1.5 Care Service Employee Grade 4 means:
. . .
(b) Level Two: An employee who is required to deliver medication to
residents in residential aged care facilities:
previously defined as Nursing Homes (as at 31 December 2004) by
the Nursing Homes Act 1988 (NSW); or
in which more than 80% of places are “allocated high care places”
as defined in the Aged Care Act 1997 (Cth).
An employee at this level must hold the following qualifications, which
may be varied from time to time by the relevant National Vocational,
Education and Training Body:
a Certificate III in Aged Care Work (CHC30102); and
a Certificate IV in Aged Care Work (CHC40102); and
medication module – “Provide Physical Assistance with
Medication” (CHCCS303A); or
Hold other appropriate qualifications acceptable to the employer.
Employees at this level may be required to perform the duties of a CSE
4 - Level 1.
[13] In the Decision, the following findings were made concerning the duties actually
performed by Mrs Grabovsky which she sought to characterise as involving the
“administration of medicine”:
“[19] … The contentious duties were identified as:
(a) breaking a resident’s Webster pack blister at the appropriate time, placing
the tablets/capsules in the bubble into a small plastic cup and handing that cup
to the resident; or
[2015] FWCFB 3926
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(b) opening a resident’s medicine bottle at the appropriate time and placing the
appropriate pill or pills from the bottle into a small plastic cup and handing that
cup to the resident,
In each case watching to ensure the resident successfully consumes all of the
tablets/capsules in the plastic cup. I assume that, on occasions, Mrs Grabovsky may
have needed to assist the resident by placing tablets/capsules in the resident’s mouth
and holding a cup of water to the resident’s mouth to help them consume the water
necessary to swallow the tablets/capsules.
[20] The Respondent denies that the actions described in paragraph [19](b) ever
formed part of Mrs Grabovsky’s duties. Although, the Respondent admitted that her
relevant duties also included:
(a) handing an inhaler to a resident; and
(b) handing and assisting a patient to apply prescribed medication patch.”
[14] There was no challenge to the correctness of these findings by Mrs Grabovsky on
appeal.
[15] Vice President Lawler found that Mrs Grabovsky’s duties in this respect could
properly be characterised as involving the assistance and support of residents with medication
utilising medication compliance aids, and therefore fell within the prescribed duties for the
CSE Grade 2 classification.8 We did not perceive any specific challenge on the part of Mrs
Grabovsky to the conclusions reached in this respect, and in any event we consider that these
conclusions were correct for the reasons identified by Vice President Lawler in the Decision.
There were further findings in the Decision that Mrs Grabovsky had not been designated by
her employer to perform the supervisory functions necessary to attract the application of the
CSE Grade 3 classification9, and that Mrs Grabovsky did not have the requisite qualifications
and did not work in a facility in which more than 80% of the places were allocated high care
places such as to attract the application of the CSE Grade 4 Level Two classification.10 Again,
it is sufficient for us to say that these conclusions were correct for the reasons stated in the
Decision. They were not challenged in Mrs Grabovsky’s appeal.
[16] We therefore consider that the industrial dispute concerning Mrs Grabovsky’s
classification and pay rate was appropriately and correctly resolved by the Decision.
However, as earlier stated, the issue of the Agreement classifications largely fell by the
wayside in the appeal as Mrs Grabovsky concentrated on her wider argument concerning the
administration of medicines by persons not registered as health practitioners. It may
immediately be observed that the argument that Mrs Grabovsky, not being a registered health
practitioner, could not be required to “administer medicine” was of no real assistance or even
relevance to her contention that she was entitled to the pay of a CSE Grade 3 or 4 under the
Agreement. On Mrs Grabovsky’s argument she could not be required to “administer
medicines” no matter how she was classified or paid, because she was not a registered health
practitioner. She certainly could not be required to “deliver medication to residents” as
8 Decision at [26]-[31]
9 Decision at [45]-[46]
10 Decision at [47]-[50]
[2015] FWCFB 3926
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required by a CSE Grade 4 Level Two. No CSE at any grade is required to be a registered
health practitioner.
[17] Perhaps realising the tension between her wider argument and the specific
classification issue, Mrs Grabovsky adopted the position for the purpose of the appeal that she
was entitled to be paid under the classification of Registered Nurse. Leaving aside the
question of whether it was permissible for this new position to be advanced on appeal, this
development underlined the lack of a logical connection between Mrs Grabovsky’s pay claim
and her wider argument. Mrs Grabovsky, who was not qualified as a nurse, was patently not
entitled to be classified or paid as if she were a Registered Nurse. However it was only by
advancing her pay claim on this untenable basis that it could tenuously be reconciled with her
wider argument concerning who could lawfully be required to “administer medicine”.
[18] We would conclude therefore that Mrs Grabovsky’s wider argument does not truly
bear upon the issue which was the subject of the dispute, being her classification and pay rate.
For that reason, we do not consider it appropriate to grant permission to appeal in order to
permit the further agitation of that issue.
[19] In any event, nothing advanced on Mrs Grabovsky’s behalf has persuaded us that the
point has any merit at least insofar as the duties performed by Mrs Grabovsky were
concerned. Both at first instance and on appeal, Mrs Grabovsky emphatically contended that
the Health Practitioner Regulation National Law required that no person other than a
registered health practitioner could “administer medicine”, but equally emphatically refused
to identify any specific provision of that legislation as supporting her position in that respect.
The following exchange between Vice President Lawler and Mrs Grabovsky’s representative
well illustrates this:
THE VICE PRESIDENT: Okay. What is the provision in that Act that you say
prohibited this employer from giving the direction it gave?
MR GRABOVSKY: How should I know? You completely don’t get it, do you, your
Honour? ...11
[20] In the hearing before us we were no more successful in obtaining an answer to the
same question, despite repeated invitations to Mrs Grabovsky’s representative to provide such
an answer so that we could properly understand the case being advanced. Mrs Grabovsky’s
position was that it was for the respondent to demonstrate that it could lawfully direct CSEs to
“administer medicine”.
[21] In the absence of any relevant assistance from Mrs Grabovsky, we have ourselves
examined in an undirected way the Health Practitioner Regulation National Law. It
establishes a national scheme for the registration of health practitioners, but does not so far as
we can discern make any provision applicable to the performance of aged-care duties by
persons who are not registered health practitioners. We certainly cannot identify any
prohibition on the performance of duties of the type performed by Mrs Grabovsky.
[22] We note that contained in the evidence was a comprehensive report issued by the
Commonwealth Aged Care Commissioner, Ms Rae Lamb, on 7 November 2014 which dealt
11 Transcript 2 April 2015, PNs 229-230
[2015] FWCFB 3926
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with, among other things, a complaint made by Mr Grabovsky (Mrs Grabovsky’s
representative) that the respondent was “unlawfully directing grade II care service employees
to undertake medication duties”. The conclusion about that issue reached by the Aged Care
Commissioner was as follows:
“The combined effect of the Quality Principles, the Poisons and Therapeutic Goods Act
1966 (NSW) and the Poisons and Therapeutic Goods Regulations 2008 (NSW) mean
that a care service employee grade 2, under the direction of appropriately qualified
staff, may lawfully administer prescription medication.”
[23] Nothing put before us by Mrs Grabovsky would cause us to doubt the correctness of
this conclusion insofar as her duties were concerned. The evidence was that the medication
which she assisted to provide to residents was prescribed by a medical practitioner and issued
by a pharmacist in a Webster pack containing instructions as to dosage and frequency of use.
We are satisfied that this constituted the “direction of appropriately qualified staff” referred to
in the conclusion of the Aged Care Commissioner.
[24] Nothing in the dispute before the Commission properly gave rise to any wider
question concerning the extent to which CSEs other than Mrs Grabovsky could be required to
administer medicine by other methods (such as by injection). The dispute did not require for
its resolution a broad inquiry into the practices and procedures of the respondent and other
aged care providers concerning the administration of medicines. Further, we consider in any
event that it is doubtful (to say the least) that the grievance and dispute resolution procedure
in clause 42 of the Agreement, from which the jurisdiction of the Commission in this matter
springs, would authorise a wider inquiry of this nature (noting however that this point was not
argued before us).
[25] For the sake of completeness only, we will refer to Mrs Grabovsky’s repeated
assertion that permission to appeal should be granted in the public interest because aged care
residents had died as a result of unqualified personnel administering medicines. There was no
evidence whatsoever advanced to support this most grave allegation. Nor was even the most
basic level of detail of the allegation identified such as to permit any form of considered
response. We have no reason therefore to give it any weight at all in our consideration of this
matter.
[26] We are not satisfied that there is any basis to grant permission to appeal either in the
public interest or on discretionary grounds. We consider that the Decision correctly
determined the issue of Mrs Grabovsky’s classification and pay rate under the Agreement.
[27] Permission to appeal is refused.
VICE PRESIDENT
OF THE FAIR WORK MISSION THE
[2015] FWCFB 3926
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Appearances:
Mr I. Grabovsky on behalf of Mrs I. Grabovsky.
T. Saunders of counsel with S. Puxty solicitor for United Protestant Association of NSW Ltd
t/a UPA.
Hearing details:
2015.
Sydney:
17 June.
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