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Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
United Protestant Association of NSW Limited T/A UPA
(AG2017/5218)
COMMISSIONER JOHNS MELBOURNE, 24 MAY 2018
Section 596 representation – request by employer opposed by applicant – efficiency of
proceedings – fairness between the parties. Application for approval of the UPA NSWNMA
and HSU NSW Enterprise Agreement 2017-2020.
[1] On 11 April 2018 I advised the parties that I had decided to grant the United Protestant
Association of NSW Limited T/A UPA (UPA) permission to be represented in relation to an
application it made on 1 November 2017 to the the Fair Work Commission (Commission) for
the approval of The UPA, NSWNMA and HSU NSW Enterprise Agreement 2017-2020 (2017-
2020 Agreement). My decision was conveyed by email to the parties. These are the reasons
confirming that decision.
[2] The application for approval of the 2017-2020 Agreement was made pursuant to s.185
of the Fair Work Act 2009 (Cth) (FW Act). The 2017-2020 Agreement is a single-enterprise
agreement. The 2017-2020 Agreement was lodged within 14 days after it was made.
[3] Included in this application were three Form 18 Statutory Declarations from the
following organisations supporting the approval of the 2017-2020 Agreement:
a) the New South Wales Branch of the Australian Nursing and Midwifery
Federation (NSW ANMF);
b) the New South Wales Nurses and Midwives’ Association (NSWMA); and
c) the Health Services Union (HSU).
[4] On 10 November 2017 Mrs Inna Grabovksy (Mrs Grabovsky) aided by her husband
Mr Igor Grabovsky (Mr Grabovsky) filed a Form 18 Statutory Declaration indicating that
she opposes the approval of the 2017-2020 Agreement.
[5] On 14 December 2017, Directions were issued for the filing of materials and the
matter was listed for hearing on 25 January 2018.
[6] On 21 December 2017 the amended Directions were issued.
[2018] FWC 2920 [Note: An appeal pursuant to s.604 (C2017/3178 was
lodged against this decision and the order arising from this decision - refer
to Full Bench decision dated 31 July 2018 [[2018] FWCFB 4362] for result
of appeal.]
REASONS FOR DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb4362.htm
[2018] FWC 2920
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[7] Due to an administrative error, Mrs Grabovsky did not receive the listings or
Directions. Consequently, on 12 January 2018 the initial Directions and listing were vacated.
[8] Also on 12 January 2018, new Directions were issued that provided for the 2017-2020
Agreement approval to be heard jointly with an application made by Mrs Grabovsky pursuant
to s.739 of the FW Act in relation to a dispute under The UPA NSWNMA and HSU NSW
Enterprise Agreement 2014-2017 (Dispute Matter). At that time a common issue in dispute
was whether, in relation to the approval of the 2017-2020 Agreement and the Dispute Matter,
UPA should be given permission to be represented. Directions were issued solely in relation
to the issue of representation under Section 596 of the FW Act.
[9] On 22 January 2018 UPA submitted that it should be granted permission to be
represented in the 2017-2020 Agreement approval matter on the basis that,
a) in relation to Section 596(2)(a) of the FW Act, that the present matter contains
complex issues of law, including jurisdictional issues, that UPA’s ability to
articulate its arguments will be assisted with representation, the Commission
has previously afforded the UPA representation in previous matters and
representation will ensure the proceedings are conducted more efficiently.1
b) in relation to Section 596(2)(b) of the FW Act, that UPA employs no one with
legal qualifications or any experience in industrial relations advocacy.
Subsequently, it will not be able to represent itself effectively without
representation being granted. 2
c) in relation to Section 596(2)(c)of the FW Act, that Mrs Grabovsky, is
represented by her husband, Mr Grabovsky, who has overseas legal
qualifications, subsequently it would be unfair for UPA to not be represented.
d) for these reasons the requisite grounds are established pursuant to Section
596(2) for the FW Act for the grant of permissions to UPA’s legal
representative, or in the alternative, performHR.
[10] On 29 March 2018, Mr Grabovsky wrote to the Commission stating,
a) he no longer opposes UPA being represented, assuming the UPA will “execute
corresponding formalities in compliance with the law”;
b) he will not object if the UPA will be represented in this matter by a reputable
barrister; and
c) he will not object if the other parties to the 2017-2020 Agreement are
represented by lawyers.
[11] In terms of the hearing and determination of the 2017-2020 Agreement approval and
the Dispute Matter the parties, barring UPA, have agreed on the following sequence:
1 Exhibit UPA 3 – UPA’s Outline of Submissions dated 19 January 2018 – 2017-2020 Agreement Matter.
2 Exhibit UPA 3 – UPA’s Outline of Submissions dated 19 January 2018 – 2017-2020 Agreement Matter.
[2018] FWC 2920
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a) Dispute Matter (C2017/7037).
b) 2017-2020 Agreement Matter (2017/5218).
c) Dismissal Matter (C2018/685) – that being a further application made by Mrs
Grabovsky pursuant to s.365 of the FW Act in relation to her termination of
her employment by UPA.
[12] In contrast, UPA submitted,
a) Once the issue of legal representation in relation to the Dispute matter and the
Agreement matter is determined, the UPA will be making an application to
strike out the Dispute matter. Therefore, any decision to consolidate or hear
together the Dispute matter and the Agreement should be deferred until the
determination of the respondent’s strike-out application.
b) Should the Commission determine that the Dispute matter, or part of it, is to
proceed then the UPA would not take issue with the Dispute Matter and the
Agreement Matter being heard together.
c) the Dismissal Matter should not be consolidated with the other matters as the
only function remaining for the Commission is to determine whether a
conciliation will resolve the matter.
Conclusion
[13] Having considered all that was submitted in relation to the 2017-2020 Agreement
approval matter I was satisfied that the 2017-2020 Agreement approval was invested with
sufficient complexity such that I would be assisted in the efficient conduct of the matter if I
granted the UPA permission to be represented. I did so pursuant to section 596(2)(a) of the
FW Act.
[14] In relation to the future programming of the 2017-2020 Agreement approval matter it
seems sensible to me that the issues to be determined in respect of the Dispute Matter (i.e.
those under the predecessor 2014-2017 Agreement) and any strike-out application should be
resolved in advance of the determining whether to approve the 2017-2020 Agreement.
COMMISSIONER
THE FAIR WOR OMA SSION THE SEAL OF
[2018] FWC 2920
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Appearances:
Mr I Grabovsky for the Applicant
Mr S Cox for the Respondent
Hearing details:
19 February 2018
Sydney
12:08pm
Printed by authority of the Commonwealth Government Printer
PR607363
