1
Fair Work Act 2009
s.739—Dispute resolution
Inna Grabovsky
v
United Protestant Association of NSW Ltd T/A UPA
(C2014/3313)
VICE PRESIDENT LAWLER SYDNEY, 10 APRIL 2015
Application to deal with a dispute.
[1] This is the arbitration of the dispute referred to the Commission pursuant to the dispute
resolution procedure in a multi-enterprise agreement known as the Aged and Home Care,
NSWNA and HSU East Multi-Enterprise Agreement 2011 - 2014 (“the Agreement”) ([2011]
FWAA 8172).
[2] At its heart, the dispute relates to the proper classification of the Applicant,
Mrs Grabovsky, in relation to the work performed by her at a facility operated by the
Respondent in Wahroonga NSW.
[3] That facility has three separate areas, a dementia unit, a high care unit, and an ordinary
aged care unit known as Rosetta in which Mrs Grabovsky worked for about a decade.
[4] Mrs Grabovsky’s employment was initially casual, but after several months she was
offered a permanent position. There was a letter of offer which did not specify the
classification in which Mrs Grabovsky was employed. However, details from the
Respondent’s payroll system, along with pay records covering an extended period,
demonstrate that the Respondent had classified Mrs Grabovsky as a Care Service Employee
Grade 2, and paid her as such, for the whole of the period of her employment.
[5] Mr Grabovsky has played a very significant role in relation to the present dispute. He
investigated the issue of Mrs Grabovsky’s entitlements and proper classification and came to
the firm view that Mrs Grabovsky had been incorrectly classified since the commencement of
her employment and thus underpaid for the whole period of her employment. More
importantly, Mr Grabovsky also came to the firm view that the Respondent could not lawfully
require a Care Service Employee Grade 2, like Mrs Grabovsky, to undertake “the
administration of medication” as part of their duties.
[6] Convinced of the correctness of those conclusions, Mr Grabovsky urged his wife to
refuse to administer medication to residents on the basis that it was not properly within her
job classification to do so and, indeed, that it was somehow illegal for her to do so.
[2015] FWC 2504 [Note: Appeals pursuant to s.604 (C2015/3729) were
lodged against this decision - refer to Full Bench decisions dated 5 June
2015 [[2015] FWC 3313] and 25 June 2015 [[2015] FWCFB 3926]
respectively for result of appeals.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB3926.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWC3313.htm
[2015] FWC 2504
2
[7] Mrs Grabovsky acted on those urgings and refused to perform the contentious duties.
Her manager, the Director of Nursing, issued a formal warning in relation to that refusal on
the basis that it constituted a refusal to perform work in accordance with the reasonable
direction of her employer. Mrs Grabovsky was facing the prospect of disciplinary action if she
continued to refuse to comply with the Respondent’s direction that she administer medication
to patients in the fashion that she had done for the preceding 10 years. It seems that these
events placed enormous stress on Mrs Grabovsky: a few days later she collapsed at work and
was transported to hospital in an ambulance. Mrs Grabovsky suffered some form of mental
breakdown from which she has not recovered. She did not return to work and has been on
workers compensation ever since. The refusal to perform the directed duties appears to have
been the proximate causal event that led to the catastrophic consequence of Mrs Grabovsky’s
debilitating mental condition.
[8] Mrs Grabovsky has never appeared, or been present, during any mention or hearing of
the present matter. At all times she has been represented by Mr Grabovsky on the basis that
Mrs Grabovsky’s mental state is such that she cannot safely play any part in the proceedings.
The Respondent, and the Commission, have accepted that position without requiring medical
evidence to support it and Mr Grabovsky has been allowed to represent his wife, and present
her case as her representative.
[9] At the time of the hearing, Mr Grabovsky contended on his wife’s behalf that her
proper classification was as a Care Service Employee Grade 3 and that, further, the duties she
was required to perform involving the “administration of medication” fell within the
classification Care Service Employee Grade 4, Level 2 and that, although Mrs Grabovsky did
not hold a qualification necessary to be classified at that level, she nevertheless had been
required to perform the work of the classification and was therefore entitled to “higher duties”
under the Agreement.
Webster packs
[10] Many residents in nursing homes find themselves prescribed with a range of
medications by their treating doctor(s). It is important that residents take the correct
medication at the times determined by their treating doctor(s). A device known as a “Webster
pack” is in almost universal use to assist residents to ensure that they comply properly with
their medication regime.
[11] A Webster pack contains a series of blisters into which a pharmacist places all of the
tablets/capsules of medication that a particular resident is required to take over a specified
period (usually a week) in accordance with the prescriptions prepared by the resident’s
treating doctor. All of the tablets/capsules that the resident must take at a particular time (for
example in the morning, at lunch, at dinner or in the evening), on a particular day, are
contained within a single blister bubble. The bubbles are ordered so that they can be broken
successively over the period covered by the pack. Each bubble is labelled to indicate the day
and time that the contents of the blister bubble should be consumed by the resident.
[12] A Webster pack, once prepared by a pharmacist for a particular resident, will contain
all of the tablets or capsules of medication that the resident should consume in the period
covered by the pack. If a resident consumes all of the pills in each bubble successively at the
nominated time, the resident will receive their correct medication, at the correct time for the
entire period covered by the pack.
[2015] FWC 2504
3
[13] A Webster pack avoids the need for a person – whether an employee like
Mrs Grabovsky, or the resident themselves – having to turn their mind to which
tablets/capsules of medication need to be taken at various times throughout each day. It
greatly reduces the risk that the patient will miss taking required medication, or will take the
wrong medication.
The fundamental issue
[14] It is trite that when there is a dispute over the proper classification of an employee,
that dispute is resolved by ascertaining the work performed by the employee and then
comparing that work to the classification descriptions in the applicable industrial instrument,
construed in accordance with the established principles of construction for industrial
instruments.
[15] In the early stages of the matter, Mr Grabovsky also contended that Mrs Grabovsky
was entitled to classification as a Care Service Employee Grade 3 by virtue of the undisputed
fact that she held a Certificate III qualification in aged care. That contention was expressly
abandoned by Mr Grabovsky at the hearing. That concession was properly made. There is
nothing in the terms of the Agreement which would require the Respondent to classify a Care
Service Employee at the Grade 3 level by virtue of the mere fact that the employee holds a
Certificate III qualification in aged care.
[16] Mr Grabovsky contends that his wife was required to perform work that was properly
within the Care Service Employee Grade 3 classification and, accordingly, that she should
have been employed in that classification from the outset of her employment. He further
alleges that this “under classification” of his wife was done deliberately and involved
continuing deception and exploitation on the part of the Respondent.
[17] There is a subsidiary argument based on the percentage of patients with high care
needs.
[18] At the end of the day, it became clear that the fundamental contention was whether the
duties performed by Mrs Grabovsky in connection with the “administration of medication” to
residents were duties that fell within the classification description for a Care Service
Employee Grade 2 and could properly be performed by an employee in that classification.
The contentious duties
[19] It was only with some difficulty that Mr Grabovsky was induced to adopt a position on
precisely what duties he relied upon in that regard. 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] FWC 2504
4
(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.
[21] Mr Grabovsky characterises these duties as amounting to “the administration of
medication to a resident”. Mr Grabovsky contends, fundamentally, that “the administration of
medication to a resident” is not a duty that falls within the duties specified in the classification
description for a Care Service Employee Grade 2 and, indeed, that it is unlawful for the
Respondent to require this of such an employee.
The classification descriptions in the Agreement
[22] The classification descriptions for a Care Service Employees in the Agreement are as
follows:
Care Services Employee Grade New Entrant
1.1 Care Service Employee New Entrant means an employee with less than
500 hours work experience in this industry who performs basic duties under
direct supervision. Such employees perform routine functions requiring
understanding of clear rules and procedures.
Work is performed using established practices, procedures and instructions
including compliance with documentation requirements as determined by the
employer. Problems should be referred to a more senior staff member.
Indicative tasks an employee at this level may perform are as follows:
Care Stream: Carry out simple tasks under supervision to assist a
higher grade Care Service Employee attending to the personal needs of
residents.
Support Stream: General assistance to higher grade employees in the
full range of domestic duties.
[2015] FWC 2504
5
Maintenance Stream: General labouring assistance to higher grade
employees in the full range of gardening and maintenance duties.
Care Services Employee Grade 1
1.2 Care Service Employee Grade 1 means an employee who has 500 hours
work experience in the industry or who has or can demonstrate relevant prior
experience, acceptable to the employer, which enables the employee to work
effectively at this level. A Junior Employee (less than 18 years) when classified
at this grade may be paid as a new entrant. An employee who works under
limited supervision individually or in a team environment or on sleep-over.
Employees at this level work within established guidelines including
compliance with documentation requirements as determined by the employer.
In some situations detailed instructions may be necessary.
Indicative tasks an employee at this level may perform are as follows:
Care Stream: Under limited supervision, provide assistance to
residents in carrying out simple personal care tasks which shall include
but not be limited to: supervise daily hygiene eg assisting with showers
or baths, shaving, cutting nails; lay out clothes and assist in dressing;
make beds and tidy rooms; store clothes and clean wardrobes; assist
with meals. Under direct supervision, provide assistance to a higher
Grade Care Service Employee in attending to the personal care needs of
a resident.
Support Stream: Performance under limited supervision of the full
range of Domestic duties including but not limited to: general cleaning
of accommodation, food service, and general areas; general waiting,
table service and clearing duties; assistance in the preparation of food,
including the cooking and/or preparation of light refreshments; all
laundry duties. The proper construction of the classification
descriptions.
Maintenance Stream: Performance under limited supervision of
labouring duties associated with gardening and general maintenance
activities, including but not limited to: sweeping; hosing; garbage
collection and disposal; keeping the outside of buildings clean and tidy;
mowing lawns and assisting the gardener in labouring.
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.
[2015] FWC 2504
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Indicative tasks an employee at this level may perform are as follows:
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.
[2015] FWC 2504
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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.
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:
(a) Level One: An employee who holds a Certificate IV in Aged Care
Work (CHC40102) or other appropriate qualifications/experience
acceptable to the employer is required to act on them and:
is designated by the employer as having the responsibility for
leading and/or supervising the work of others in excess of that
required for a CSE 3; and
is required to work individually with minimal supervision.
Employees at Grade 4 may be required to exercise any/all managerial functions
in relation to the operation of the care service and comply with documentation
requirements as determined by the employer. Indicative tasks an employee at
this level may perform are as follows:
Care Stream: Overall responsibility for the provision of personal care
to residents. Coordinate and direct the work of staff. Schedule work
programs. Support Stream: Coordinate and direct the work of staff
involved with the preparation and delivery of food. Schedule work
programs.
Maintenance Stream: Coordinate and direct the work of staff
performing gardening duties. Schedule gardening work programs.
Where required, let routine service contracts associated with gardening.
(b) Level Two: An employee who is required to deliver medication to
residents in residential aged care facilities:
[2015] FWC 2504
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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.
[23] There is no dispute that Mrs Grabovsky was in the “Care Stream”.
[24] The principles governing the construction of industrial instruments are well
established (see, for example, the collection in Watson v ACT Department of Disability
Housing and Community Services (2008) 171 IR 392 at [8] - [14].
[25] The classification descriptions in the Agreement cannot be construed in isolation.
They must be construed in the context of the Agreement as a whole.
Whether the contentious duties fell within the duties of a Care Service Employee
Grade 2?
[26] On any view, a Webster pack is a “medication compliance aid”. That is the very
essence of its purpose. I find that an inhaler and a medication patch are each medication
compliance aids”. They are designed to deliver a measured amount of the medication
contained within the inhaler or incorporated into the medication patch.
[27] Dispensing a blister of tablets/capsules of medication from a Webster pack, in the
manner described in paragraph [19](a), falls within the ordinary and natural meaning of the
expression “assist and support residents with medication utilising medication compliance
aid”.
[28] There is nothing in the balance of the Agreement that suggests a different construction
should be adopted.
[29] There was no extrinsic evidence of the kind conventionally led in disputes over the
proper construction of an enterprise agreement (e.g. drafts, correspondence between the
negotiating parties as to the intent of particular words and other evidence going to the factual
matrix existing at the time the agreement was made).
[2015] FWC 2504
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[30] The classification description for Care Service Employee Grade 2 contains a list of
“indicative tasks” specified by a non-exhaustive description of the duties it covers (as
indicated by the word “including”). On any practical approach to the construction of the
classification description, the dispensing of medication in the manner described in paragraph
[19](b). It would be an absurd construction that held that the dispensing of medication in the
manner described in paragraph [19](a) is within the classification description, but the
dispensing of medication in the manner described in paragraph [19](b) is not within the
classification description. In any event, it is a duty that is substantially similar to one of the
specified “indicative tasks” and thus comes within the “inclusive” definition. The duties
involving an inhaler or medication patch are similarly within that classification description.
[31] If Mr Grabovsky’s arguments are correct, and the administration of medication
utilising “a medical compliance aid” like a Webster pack cannot be performed by an
employee in the classification Care Service Employee Grade 2, then the expression “assist
and support residents with medication utilising medication compliance aid” in the “indicative
tasks” list in the definition would not have a sensible and practical operation. That is clearly at
odds with the intention, objectively determined, of the framers of the classification description
for a Care Service Employee Grade 2 and with the required practical approach to the
construction of that classification description.
The fundamental error in Grabovsky’s contentions
[32] In the early stages of the hearing, Mr Grabovsky’s arguments appeared to depend
critically upon a proposition, as a suppressed major premise, that if a duty undertaken by an
employee can properly be described as involving “the administration of medication” to a
resident, then the duty cannot be within the duties of a Care Service Employee Grade 2 under
the Agreement, irrespective of the terms of the classification description for a Care Service
Employee Grade 2.
[33] On the final day, Mr Grabovsky did not wish to be heard to argue that the disputed
duties, in particular assisting a resident to take medication from a Webster pack, did not fall
within the ordinary meaning of the expression. Rather his primary contention was that “the
administration of medication” by an employee in a Care Service Employee Grade 2
classification was unlawful, irrespective of the terms of the classification definition for that
classification.
[34] It may be accepted that the terms of an enterprise agreement made under the Fair
Work Act 2009 (or its predecessors) cannot render lawful something that is expressly
rendered unlawful by legislation or the general law. Specifically, a classification description
in an enterprise agreement cannot render lawful something that is prohibited by statute or a
general law criminal offence.
[35] Thus, Mr Grabovsky’s contention would be correct if the Agreement was made in the
context of an applicable statutory regime that prohibited, for example, the administration of
medication to a resident in a nursing home by anyone other than a qualified nurse or medical
practitioner.
[36] However, there is no such legislation or general law criminal prohibition that operates
in relation to the Respondent’s facilities covered by the Agreement. Mr Grabovsky could
[2015] FWC 2504
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point to none. The Poisons and Therapeutic Goods 1966 Act (NSW) contains various
prohibitions, but none of the kind contended for by Mr Grabovsky.
[37] Mr Grabovsky placed reliance on a number of documents including:
(a) a document entitled Management of Medicines in Aged Care issued by the
Australian Nursing and Midwifery Federation;
(b) a certificate of registration issued by the Australian Health Practitioner
Regulation Agency in respect of an individual enrolled nurse – bearing a
notation that the individual was not endorsed to administer medication.
[38] Those documents do not establish a legal prohibition on a Care Service Employee
Grade 2 performing the contentious duties. Again, such a prohibition can only arise by
operation of statute or the general law which must be identified if it is to be acted upon.
[39] The AHPRA certificate for an individual enrolled nurse is not evidence that a Care
Service Employee Grade 2 is somehow prohibited from administering medication under any
circumstance. The significance or otherwise of that endorsement referred to in the certificate
was not demonstrated by reference to any evidence that explained is origin or significance, of
any statutory prohibitions to which it may or may not have been related.
[40] Moreover, the mere fact that an enrolled nurse may need an endorsement to administer
medication is not incompatible with a Certificate III Care Service Employee Grade 2
employee being free of any prohibition on administering medication if they have received
appropriate training (which I find on the evidence Mrs Grabovsky to have received).
[41] On the established principles of construction, documents of the kind relied upon by Mr
Grabovsky have no role in the proper construction of the Agreement, certainly in the absence
of any extrinsic evidence that placed those documents in the midst of the negotiations. There
is no evidence for that improbability. In particular, those documents – a publication prepared
by a professional association, or a “guideline” produced by a government agency cannot form
a basis for a construction of the Agreement in a fashion that is at odds with the ordinary and
natural meaning of the words in a classification description, or some other meaning, dictated
by the practical approach mandated by the established principles for the construction of
industrial instruments.
[42] Mr Grabovsky relied upon a policy document entitled “Guiding Principles for
medication management in residential aged care facilities” issued by Commonwealth of
Australia Department of Health and Ageing in 2012. On the evidence, that document is
irrelevant to the proper construction of the Agreement. In any event, it expressly recognises
that care service employees may administer medication if they have been given the
appropriate training and accepted the delegation. On the evidence, these Guidelines had, in
any event, been satisfied by the Respondent. Mrs Grabovsky had received appropriate training
and general supervision. For 10 years she had accepted the delegation. The Respondent
reasonably treats acceptance of the delegation as a requirement for employment as a Care
Service Employee Grade 2.
[43] For all these reasons, I find that the contentious duties fall within the classification
description for Care Service Employee Grade 2 on its proper construction.
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[44] It is irrelevant that the contentious duties can also properly be described, as a matter of
ordinary English usage, or in some fashion specified in documents of the sort relied upon by
Mr Grabovsky, as “the administration of medication”. There was nothing that rendered it
unlawful for the Respondent to require Mrs Grabovsky to perform the contentious duties. The
refusal of Mrs Grabovsky to perform the contentious duties was misconceived and the
direction given to her to perform those duties was lawful and the warning given to her was
objectively justified.
Care Service Employee Grade 3 arguments
[45] Mr Grabovsky contended that his wife had in fact supervised the work of others and
that, since she held a Certificate Level III in Aged Care Work, she should have been classified
at Care Service Employee Grade 3.
[46] On the evidence, Mrs Grabovsky had not been “designated by the employer as having
responsibility for leading and/or supervising the work of others” and she had not been
“designated by the employer as having overall responsibility for a particular function within
the residential aged care facility”. On the plain words of the classification description, neither
of the requirements in (a) or (b) were met in Mrs Grabovsky’s case. The argument that
Mrs Grabovsky was wrongly classified on account of the “supervision” work she was
performing is without substance.
Care Service Employee Grade 4 arguments
[47] Mr Grabovsky acknowledged that Mrs Grabovsky did not possess one of the required
qualifications to be classified as a Care Service Employee Grade 4. However, he contended
that, in administering medication to patients with via a Webster pack, Mrs Grabovsky was
performing work that expressly fell within the classification description for a Care Service
Employee Grade 4, Level Two employee (and was therefore entitled to higher duties in
respect of that work”.
[48] The classification description is set out above. The key portion is:
(b) Level Two: An employee who is required to deliver medication to residents in
residential aged care facilities:
(i) previously defined as Nursing Homes (as at 31 December 2004) by the
Nursing Homes Act 1988 (NSW); or
(ii) in which more than 80% of places are “allocated high care places” as
defined in the Aged Care Act 1997 (Cth).
[49] Mr Grabovsky relied upon (ii), contending that more than 80% of the residents in the
Rosetta Unit were “high care”. Contemporary “aging in place” policies see patients enter a
nursing home as a low care patient, but then remaining in that familiar environment when
their needs progress to high care. It is not disputed by the Respondent that many of the
residents of the Rosetta unit had “high care” needs as a result of those government endorsed
polices. However, those residents were not occupying “places” that were “allocated high care
places.” Neither the Rosetta Unit, nor the facility as a whole, was a facility “in which more
[2015] FWC 2504
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than 80% of places are “allocated high care places” as defined in the Aged Care Act 1997
(Cth).”
[50] The definition in (b)(ii) is unambiguous. On the proper construction of the Grade 4
classification definition, the reference is to places allocated by the Commonwealth department
administering aged care. That can be a much lower number than the actual number of
residents with high care needs (as was the case with the Respondent’s.) It is irrelevant that the
actual number of residents with high care needs exceeds the number of allocated high care
places (as an inevitable consequence of “aging in place” policies). The percentage of allocated
beds for the facility does not change. The Rosetta unit did not have “allocated high care
beds”. The condition in the Grade 3 classification description was not met. This argument also
must be rejected.
Predecessor agreements and associated jurisdictional issue
[51] The period of Mrs Grabovsky’s employment by the Respondent prior to 2011 was
covered by predecessor enterprise agreements, including enterprise agreements made under
the Workplace Relations Act 1996.
[52] The decision of the Full Bench of the AIRC in Stephenson v Abetz (28 October 2014,
PR952743) is authority for the proposition that when an workplace agreement made under
Workplace Relations Act 1996 was replaced by a subsequent agreement made under that Act,
the earlier agreement ceases to operate such that the Commission has no jurisdiction to deal
with a dispute arising under the earlier agreement. As a single member of the Commission
I consider myself bound to follow decisions of a Full Bench of the Commission or its
predecessors that is properly applicable in the instant case unless that decision is per incuriam
- a decision that overlooks obviously applicable statutory provisions or earlier applicable and
of a Court binding the Full Bench.
[53] With great respect to the Full Bench that decided Stephenson, its reasoning overlooks
fundamental principles established by binding decisions of the courts, including the High
Court, in relation to the operation of arbitration provisions in contracts. On every working day
in this country there are commercial arbitrations being conducted pursuant to arbitration
clauses in contracts that have been terminated for breach. Although the contract comes to an
end in the sense that it cannot give rise to new obligations or liabilities, the operation of an
arbitration clause survives the termination of the contract. The decision in Stephenson takes
no account of that fundamental feature of the general law of contract and the numerous
binding authorities that establish it.
[54] Moreover, the interpretation adopted by the Full Bench in Stephenson has the effect of
extinguishing accrued rights. Applied rigorously, the decision in Stephenson would oblige the
Commission to refuse to continue dealing with a dispute properly notified pursuant to a
dispute resolution procedure. It is a fundamental principle of statutory construction that the
parliament is presumed, when enacting legislation, not to deprive people or citizens of their
accrued rights other than by express words. In the case of Commonwealth legislation there is
the further consideration of the operation of s.51(xxxi) of the Constitution. These matters
were not considered by the Full Bench in Stephenson when it construed s.170LX of the then
Workplace Relations Act 1996.
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[55] I find that I do have jurisdiction to deal with the present dispute under each of the
succession of enterprise agreements that applied to Mrs Grabovsky and the Respondent
during the whole period of her employment. However, there is no suggestion that the
classification description for Care Service Employee Grade 2 has changed over that
succession of agreements and, accordingly, the reasoning set out above in relation to the
current Agreement is equally applicable in relation to the dispute to the extent that it arises
under any of the predecessor agreements.
Disqualification application
[56] Mr Grabovsky made application for me to disqualify myself on each of the two days
of hearing. I gave oral reasons for refusing the application(s) on the first hearing day. I said
that I would give reasons for refusing the applications made on the second day.
[57] Those applications were made as a result of my repeatedly disallowing certain
questions. The matter was being conducted a deliberative conference and it was necessary and
proper for me to exercise control over irrelevant questions that were needlessly prolonging the
hearing. The disallowed questions were disallowed on the grounds of relevance and properly
so. A reasonable refusal to allow Mr Grabovsky to pursue irrelevant matters or matters that
had already been conceded does not give rise to a reasonable apprehension of bias. To the
extent that Mr Grabovsky complains about my tone, I say that in the context disclosed by the
transcript, my tone does not give rise to a reasonable apprehension of bias.
Conclusion
[58] Mr Grabovsky has pursued the matter with extraordinary vigour and commitment. He
has been indefatigable, not to say relentless, in his pursuit of the Respondent. In addition to
the present proceedings, Mr Grabovsky has made various complaints to various regulators
and pursued challenges and appeals in relation to the adverse decisions that have thus far been
made in his attempts to secure what he perceives to be a righting of the injustice done to his
wife and in seeking to have the Respondent brought to account for various breaches and
alleged wrongful behaviour of the Respondent.
[59] It became painfully apparent during the course of directions hearings held in
connection with the preparation of the matter for hearing, and during the hearing, that
Mr Grabovsky is utterly convinced of the correctness of his fundamental contentions,
irrespective of what I or any other decision maker may decide, and that he means to pursue
the Respondent relentlessly until those contentions are vindicated.
[60] Unfortunately, for the reasons I have given, having regard to the work she performed,
Mrs Grabovsky was correctly classified as a Care Service Employee Grade 2.
Mr Grabovsky’s contentions are fundamentally misconceived, albeit that there is no prospect
that he will accept the correctness of the reasoning that leads inevitably to that conclusion.
That is not to say that Mr Grabovsky may not be correct at a policy level in contending that
persons who perform the contentious duties ought be classified higher than Care Service
Employee Grade 2. I express no view on that matter which, if embraced, would radically
increase the cost structure of the Respondent and many other employers in the aged care
sector in NSW. However, as matters presently stand (and as they have stood throughout the
course of Mrs Grabovsky’s employment), the Respondent was entitled to employ Mrs
Grabovsky in the classification Care Service Employee Grade 2 and require her to perform
[2015] FWC 2504
14
the contentious duties. It did not engage in deception and has not unconscionably exploited
Mrs Grabovsky. This is a most unfortunate case, it is to be hoped that Mrs Grabovsky will
recover the full mental health and that she and Mr Grabovsky can resume a normal life, as
opposed to a life that has become dominated by the issues canvassed in this decision.
VICE PRESIDENT
Appearances:
Mr I Grabovsky appeared for the Applicant
Mr T Saunders of counsel appeared for the Respondent
Hearing details:
2015
Sydney
20 March
2 April
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