1
Fair Work Act 2009
s.604—Appeal of decision
Mitchell Graham
v
Globus Medical Australia Pty Ltd
(C2016/4391)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT WELLS
COMMISSIONER JOHNS SYDNEY, 2 SEPTEMBER 2016
Permission to Appeal against decision [2016] FWC 3525 and order PR581332 of Senior
Deputy President Drake at Melbourne on 15 June 2016 in matter number U2015/16602.
Introduction
[1] Mr Mitchell Graham has applied for permission to appeal a decision of Senior Deputy
President Drake issued on 15 June 20161 (Decision). The effect of the Decision was the
Senior Deputy President dismissed an unfair dismissal remedy application lodged by Mr
Graham pursuant to s.394 of the Fair Work Act 2009 (FW Act). The dismissal of the
application was on the basis that Mr Graham was not a person protected from unfair dismissal
pursuant to s.382 of the FW Act.
[2] At the hearing before the Full Bench Mr Graham appeared on his own behalf.
Permission was sought and granted for Mr T Glover of counsel, instructed by Ms L Crossman
of DLA Piper, to represent Globus Medical Australia Pty Ltd (Globus).
[3] Mr Graham’s employment was terminated on 25 November 2015 and on 8 December
2015 he filed an unfair dismissal remedy application. On 24 December 2015, Globus filed its
Employer Response claiming that Mr Graham’s salary exceeded the high income threshold
and that he was not covered by an industrial award or agreement. There was no dispute
between the parties that Mr Graham’s annual rate of earnings was above the high income
threshold.
[4] In determining the jurisdictional objection argued by Globus, the Senior Deputy
President was required to determine if Mr Graham’s employment was covered by an award,
which would establish Mr Graham as a person protected from unfair dismissal. Mr Graham
asserted he was covered by the Commercial Sales Award 2010 (Award) as a “Commercial
Traveller.” In her consideration, the Senior Deputy President made the following findings:
1 [2016] FWC 3525
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DECISION
E AUSTRALIA FairWork Commission
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“[11] Clause 3.1 of the Award provides a definition of a “Commercial Traveller” as
follows;
“Commercial Traveller means a person employed, substantially away from the
employer’s place of business, for the purpose of soliciting orders for, or selling
articles, goods, wares or merchandise or material for wholesale sale, for resale,
or for use in or in connection with the production and/or preparation and/or
distribution of commodities for sale by the customer.”
…
[19] I am satisfied on the evidence before me that Mr Graham spent a considerable
amount of time away from the Globus office for a multitude of reasons including
training, selling, preparation of surgical equipment and provision of technical support.
That evidence is consistent with Mr Graham’s job description. I am satisfied that Mr
Graham’s duties largely concerned the marketing and/or sales of Globus products.
…
[21] Globus is a multinational company in its infancy within Australia. I am
satisfied that as a result it may be necessary at different times for it to require an
employee to give weight and attention to a particular duty within that employee’s
range of duties. In doing so, the employee is meeting the variable needs of the
business. An explicit or implicit requirement by the enterprise for an employee to give
precedence to a particular task does not necessarily change the principal purpose for
which that employee is engaged. After having considered the evidence I am satisfied
that Mr Graham was principally employed in a managerial capacity and therefore that
he was not covered by the Commercial Sales Award 2010 when employed by Globus.
…
[25] The evidence suggested that the products Mr Graham provided to hospitals
were invariable ordered on an ‘as-needed’ basis and that no ‘mark-up‘ was applied to
the product by the hospital. A patient of the hospital was never directly billed by
Globus nor did a hospital re-sell the product. I was not satisfied and find that the spinal
products Mr Graham sold could not be said to have been subject to resale. Whether the
products sold by Mr Graham could be deemed to be sold for wholesale purposes
requires further examination. The Macquarie Dictionary defines ‘wholesale’ as
follows;
“The sale of commodities in large quantities, as to retailers or jobbers rather than to
customers directly.”
[26] It was uncontested between the parties that the products sold by Mr Graham
were not sold in large quantities, but rather were provided to hospitals as needed.
Further, I was not satisfied and could not find that a hospital would be ‘retailing’ a
product when it is inserting that product into a patient, particularly in circumstances
where the hospital derives no profit from that product.
[27] I am not satisfied that Mr Graham’s soliciting or orders or selling could be said
to create a situation in which a product is ‘on-sold’ either by resale or wholesale to a
customer.”
[5] The Senior Deputy President upheld Globus’ jurisdictional objection and dismissed
Mr Graham’s application, having concluded:
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“[28] For these reasons I find that Mr Graham’s employment, whilst predominately
comprising a sales role on a quantitative basis, was a management role. I find that the
principle [sic] purpose of Mr Graham’s employment was as an Area Manager for
Queensland.
[29] As such I am satisfied and find Mr Graham was not a person covered by the
Commercial Sales Award 2010, and was therefore not a person protected from unfair
dismissal pursuant to s.382 of the Act on the date of termination of his employment.”
[6] Mr Graham’s notice of appeal alleged three grounds for appeal, namely:
The Senior Deputy President omitted Mr Graham’s written final submissions
as these submissions were not noted at the end of the Decision as being
received
The omission of those written final submissions led to a significant error of
fact, specifically the finding that hospitals did not on-sell the spinal products
The Senior Deputy President erroneously applied the ‘principal purpose test’,
based on the evidence before the Commission.
[7] At hearing, Mr Graham asserted two grounds as being relevant to the public interest
for the Commission to grant permission to appeal. The first was that the Decision was
disharmonious with respect to the application of the principal purpose test in other decisions,
as the evidence showed he had no position description on which to base a principal purpose
test. Secondly, that the Senior Deputy President had denied him a fair hearing by accepting,
during the hearing, that he was a sales person and redirecting his cross examination of a
Globus witness, but subsequently finding in the Decision that he was employed as a
Manager.2
[8] At hearing Mr Graham submitted that the Decision contained two errors of fact. These
errors were said to be the findings by the Senior Deputy President that Mr Graham was a
Manager and that the Globus products were not on-sold by the hospital. Mr Graham relied on
the private hospital tax invoice,3 which the Commission had ordered Globus to produce, and
stated that the hospital billed a patient’s health insurance company for the spinal products,
thereby establishing a re-sale arrangement. He asserted that the Senior Deputy President had
not had regard for his closing submissions and a diagrammatic representation of Globus’ sales
which was included with those submissions.
[9] Mr Graham contended that his performance appraisals contained no managerial duties,
only sales targets, and that the evidence before the Commission was that his role was not
managerial in nature.
[10] On behalf of Globus, Mr Glover submitted that there had been no attempt by the
Senior Deputy President to re-direct the cross-examination during the first instance hearing
2 Appeal Book pages 60 and 66
3 Exhibit 1
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and that the proceedings had been conducted by the Senior Deputy President in a fair manner.
Mr Glover argued that Mr Graham was using the appeal process to attempt to address the
matters he failed to put before the Senior Deputy President. It was submitted by Mr Glover
that the provision of medical spinal equipment for implanting in patients was an unusual
industry and could not be characterised as a sale and re-sale arrangement.
Consideration
[11] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair
Work Commission’s (Commission) powers on appeal are only exercisable if there is error on
the part of the primary decision maker.4 There is no right to appeal and an appeal may only be
made with the permission of the Commission. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert
Panel); or
(b) made by the General Manager (including a delegate of the General
Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant
permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal
(see section 400). (2) A person may appeal the decision by applying to the FWC.
[12] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied
that it is “in the public interest to do so”. The task of assessing whether the public interest test
is met is a discretionary one involving a broad value judgment.5 The public interest is not
satisfied simply by the identification of error6, or a preference for a different result.7 In
GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified
some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue 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
4 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and
Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
5 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 & Alllied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
6 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
7 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review;
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, 241 IR 177 at [28]
http://www.fwc.gov.au/decisionssigned/html/2010fwafb10089.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
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applied appear disharmonious when compared with other recent decisions dealing with
similar matters...”8
[13] Other than the special case in s.604(2), the grounds for granting permission to appeal
are not specified. Considerations which have traditionally been adopted in granting leave and
which would therefore usually be 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.9 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.10 However, the fact that
the Member at first instance made an error is not necessarily a sufficient basis for the grant of
permission to appeal.11
[14] We are not satisfied that Mr Graham demonstrated any reasonably arguable case of
error on the part of the Senior Deputy President in determining that his employment was not
covered by the Commercial Sales Award 2010 and, as a result, he was not a person protected
from unfair dismissal.
[15] The Senior Deputy President, at paragraphs [7] to [9] of the Decision, had regard for
the appropriate legal authorities which have established the ‘principal purpose test’ and at
paragraph [11] set out the definition of a “Commercial Traveller” as provided for in the
Award. We detect no error in the Senior Deputy President’s approach to the application of the
principal purpose test. We do not consider that the Decision is disharmonious with other first
instance decisions.
[16] It is well established that Commission members are required to act “judicially” and
accord all parties procedural fairness. This duty must be applied in the context of the
particular circumstances including the nature of representation and the nature of the matter
before the Commission.12 The role of the Commission member when an applicant appears in
person also needs to be taken into account. The duty is to provide for a fair hearing but not to
provide a positive advantage to a self-represented litigant.13 Having perused the transcript of
the hearing, we do not consider that there is any substantive basis for Mr Graham’s contention
that he was misled by the Senior Deputy President into thinking he had succeeded in
demonstrating that he was a salesperson covered by the Award and was restrained from
further cross-examining a witness on that question. Particularly at PNs 298-311, we consider
that the Senior Deputy President was attempting to identify to Mr Graham what the critical
issue was, namely whether the items he was involved in selling were “for wholesale, for
resale, or for use in or in connection with the production and/or preparation and/or
distribution of commodities for sale by the customer”. This constituted appropriate guidance
8 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
9 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]
10 Wan v AIRC (2001) 116 FCR 481 at [30]
11 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, 241 IR 177 at [28]
12 Coal and Allied Services v Lawler (2011) 192 FCR 78 at [25]
13 Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1 at [28]
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to a self-represented litigant and not any form of restraint on the manner in which Mr Graham
advanced his case.
[17] It was not in dispute that Mr Graham performed sales duties, although there was a
dispute about whether this constituted the principal purpose of his employment. Mr Graham’s
written closing submissions at first instance clearly demonstrate that he understood that
whether the principal purpose of his employment was as a manager or salesperson was a live
issue in the proceedings. Having regard to the evidence, including Mr Graham’s contract of
employment which described his position as “Area Manager - Queensland” and had him
reporting to Globus’ Managing Director in Australia, we do not consider that there is any
arguable case of significant error in the Senior Deputy President’s conclusion that the
principal purpose of his employment was managerial in nature.
[18] In any event the evidence demonstrated clearly that the items Mr Graham was
involved in selling, being medical prosthetic devices intended for surgical insertion, were not
for wholesale, resale or use in relation to commodities for sale to customers. Mr Graham’s
contention that medical devices sold to hospitals were re-sold when the hospital operated on a
patient, inserted a device, and charged the patient or the patient’s insurance company for the
operation, was not we consider reasonably arguable.
[19] Having considered the evidence before the Senior Deputy President and the
submissions of Mr Graham made both before the Full Bench and at first instance, we cannot
detect any significant error of fact or error of law in the Decision. There is no basis for us to
be satisfied that the grant of permission to appeal would be in the public interest.
Accordingly, as required by s.400(1), permission to appeal is refused.
VICE PRESIDENT
Appearances:
M. Graham on his own behalf.
A. Ball solicitor on behalf of Globus Medical Australia Pty Ltd.
Hearing details:
2016.
Sydney:
9 August.
OF THE FAIR WORK MISSION THE
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