| [2019] FWCFB 3874 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Vahid Sedighi Gourabi
v
Westgate Medical Centre
(C2019/1607)
VICE PRESIDENT HATCHER |
SYDNEY, 5 JUNE 2019 |
Appeal against decision [2019] FWC 1155 of Commissioner Bissett at Melbourne on 21 February 2019 in matter number U2018/11271.
[1] Dr Vahid Sedighi Gourabi has lodged an appeal, for which permission to appeal is required, against a decision issued by Commissioner Bissett on 21 February 2019 1 (Decision). The Decision concerned an application by Dr Gourabi made pursuant to s 394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy in respect of the termination of his employment with Westgate Medical Centre (WMC).
[2] WMC is a private medical clinic. Dr Gourabi worked at WMC as a medical practitioner until the termination of his employment on 31 October 2018. He lodged an application for an unfair dismissal remedy on 1 November 2018. In its response to the application filed on 22 November 2018, WMC objected to the application on the jurisdictional ground that Dr Gourabi was not a person protected from unfair dismissal within the meaning of s 382 of the FW Act, in that he:
(a) was not an employee of WMC, but rather was an independent contractor; and
(b) was not, if he was an employee, covered by a modern award or an enterprise agreement, and had an annual rate of earnings that exceeded the high income threshold established by reg 3.05 of the Fair Work Regulations 2009.
[3] The matter was the subject of a preliminary hearing before the Commissioner on 8 February 2019. The Commissioner described in the Decision the approach she intended to take in the following way:
“[2] Jurisdictional objections to the application were listed to be heard by me on 8 February 2019. At the hearing I determined that I would, in the first instance, only hear arguments as to whether a modern award covered the Applicant’s employment. If a modern award did cover the Applicant’s employment the issue of whether he was a contractor or employee could be determined with the merits. If a modern award did not cover the Applicant’s employment (there is no dispute that no agreement applied) the Western Medical Centre (WMC or the Respondent) said, and the Applicant made no contrary submissions, that the Applicant’s annual rate of earnings was in excess of the high income threshold such that he was not protected from unfair dismissal.”
[4] In the Decision, the Commissioner found that while Dr Gourabi had served the minimum employment period, 2 he was not covered by a modern award,3 an enterprise agreement did not apply to him,4 and his annual rate of earnings was in excess of the high income threshold.5 Accordingly, the Commissioner concluded that Dr Gourabi was not protected from unfair dismissal within the meaning of s 382 of the FW Act and dismissed his application.
[5] Dr Gourabi contends in his notice of appeal that the conclusion reached in the Decision that his employment was not covered by a modern award was in error.
[6] It was not in dispute before the Commissioner that the issue which required resolution was whether the Medical Practitioners Award 2010 (Award) covered the employment of Dr Gourabi with WMC. It was not contended that any other award applied to Dr Gourabi. The Award relevantly provides as follows:
“3. Definitions and interpretation
3.1 In this award, unless the contrary intention appears:
medical practitioner means a person who is employed as a medical practitioner in hospitals, hospices, benevolent homes, day procedure centres, aboriginal health services, community health centres, the Red Cross Blood Service, the South Australian Institute of Medical and Veterinary Science, the Victorian Cytology Service or the Victorian Institute of Forensic Medicine
medical practitioner—non specialist means a Career Medical Practitioner, Senior Career Medical Practitioner or Community Medical Practitioner
4. Coverage
4.1 This occupational award covers employers of medical practitioners throughout Australia in the classifications listed in clause 14–Minimum annual salaries to the exclusion of any other modern award.”
[7] The focus of the parties was on whether WMC is a “community health centre” or a “day procedure centre,” being terms used in the definition of “medical practitioner” at clause 3.1 of the Award.
[8] Regarding the term “community health centre,” the evidence before the Commissioner was that the Victorian Government funds community health centres which sit alongside general practice and privately funded services, and other health and support services. 6 Dr Feda Eqbal, a Director of Sayers Medical Pty Ltd and Hoppers Super Clinic Pty Ltd, the companies that own and operate WMC, gave evidence that WMC was not funded by the government as a community health centre.7 Accordingly, WMC submitted that it was not a community health centre for the purposes of clause 3.1 of the Award.
[9] Turning to the term “day procedure centre,” WMC said that the Victorian Government maintains a register of day procedure centres. There are processes established to register a day procedure centre, renew, vary or transfer registration, and to build or renovate a day procedure centre. Dr Eqbal gave evidence that WMC is not registered as a day procedure centre. 8 The health.vic website also includes a “Day Procedure Centres list” which identifies such centres registered in Victoria. WMC is not on this published list.9 For these reasons, WMC submitted that it was not a day procedure centre for the purposes of clause 3.1 of Award.
[10] In response, Dr Gourabi submitted that the terms “community health centres” and “day procedure centres” should be given their ordinary meaning. Neither term was capitalised and, accordingly, it was contended that a day procedure centre should be taken to mean a centre at which a procedure is provided and where the patient is “in and out” on the same day, and a community health centre should be taken to mean a centre providing health services to the community. On this construction, he said that WMC was both a community health centre and a day procedure centre.
[11] In the Decision, the Commissioner considered the meaning of the terms “day procedure centres” and “community health centres” by reference to the evidence before her and in their context within the Award and in the health industry. The Commissioner noted that the history of the Award was a relevant consideration when interpreting the coverage clause of an award and referred to the decision of City of Wanneroo v Holmes 10 in which French J (as he then was) said that “the interpretation of an award begins with a consideration of the natural and ordinary meaning of its words” and that “[t]he words are to be read as a whole and in context” with “[a]mbiguity if any… resolved by a consideration, inter alia, of the history and subject matter of the award.”11
[12] The Commissioner considered the evolution of the coverage of the Award when it was in development in the course of the award modernisation process conducted by a Full Bench of the Australian Industrial Relations Commission (AIRC) pursuant to Pt 10A of the Workplace Relations Act 1996. The Commissioner found that the broad coverage provision contained in the first exposure draft circulated in January 2009, applying to employers of medical practitioners, being “any person who is registered to practice medicine” and “who is engaged in the practice of medicine,” was narrowed in the April 2009 exposure draft to the coverage clause and definitions now contained in the Award. According to the Commissioner:
“[37] It seems to me that the change from the first iteration of the coverage of the Award to what is now found in the Award strongly suggests that the coverage of the Award was intended to be more limited, not just in respect of specific entities but also in the “general places” of employment as the Applicant used the term, than was first proposed.
[38] Further, it is apparent from the April Award that the concept of a practitioner in general practice was understood (the classification definition remains in April 2009 is as it is now) but that the coverage of the Award was not described by reference to general medical practice. These factors weigh against the Applicant’s submissions.”
[13] More is said about the history of the coverage provisions of the Award below. The Commissioner proceeded to make the following factual findings and interpretative conclusions:
(a) Dr Gourabi worked in a general medical practice.12
(b) The services offered through day procedure centres and community health centres are distinguishable (although complementary) to the services provided by a general practice clinic.13
(c) That the Award uses the terms “community health centres” and “day procedure centres” suggests that it distinguishes these from each other and from other health services such as general practices, supporting a finding that there are differences between them.14
(d) There is specific funding for community health services and specific registration for day procedure centres. WMC does not receive such funding and it is not registered.15
(e) The non-capitalisation of the terms in question cannot import some meaning that is not otherwise apparent.16
(f) “Community health centres” should be limited to those services that receive specific funding (in this case from the Victorian Government through the Community Health Program funding) and “day procedure centres” should be limited to those centres registered (in this case by the Victorian Government).17
(g) Even if an employee might fall within a classification description in the Award, the Award must first cover the relevant employer for the employee to be covered by it.18
[14] The Commissioner concluded that the Respondent was not an employer covered by the Award and therefore, the Award did not apply to Dr Gourabi in his employment with WMC. Noting the unchallenged evidence before her in respect of Dr Gourabi’s earnings, the Commissioner said:
“[57] In this case I am satisfied that, while the Applicant has served the minimum employment period (without determining if he is, in fact, an employee) he is not covered by a modern award, an enterprise agreement does not apply to him and his annual rate of earnings is in excess of the high income threshold.”
Dr Gourabi’s appeal grounds and submissions
[15] The notice of appeal contains 20 grounds of appeal. Taking the notice of appeal together with Dr Gourabi’s subsequent written and oral submissions, the grounds of appeal can be summarised as contending that the Commissioner erred in three key ways.
(1) Dr Gourabi was denied procedural fairness, in that the Commissioner did not disclose to the parties that she intended to consider the history of the Award and give them an opportunity to make submissions about this (grounds 1 and 2). Further, Dr Gourabi said that an additional procedural fairness error arose in respect of the following observation made by the Commissioner at paragraph [46] of the Decision:
“[46] I would further observe that if the Applicant was correct in its approach to the Award it would only need to establish that it provided health services to indigenous patients to be able to claim that it is an aboriginal health service and this is not claimed.”
Dr Gourabi said that the Commissioner erred in attributing to him an argument never advanced as to the meaning of “aboriginal health service” without giving him an opportunity to address the Commission on this matter.
(2) The Commissioner’s construction of the Award as distinguishing between community health centres, day procedure centres and general medical practices, based on the definition of “medical practitioner” in clause 3.1 and the historical context, was in error (grounds 3-8). These appeal grounds are summarised further below.
(3) The Commissioner’s interpretation of the Award resulted in a differential operation in Victoria as compared to other States and Territories, contrary to s 154 of the FW Act. This was said to arise on account of the Commissioner’s decision to limit “day procedure centres” in Victoria to those that are registered under a Victorian law and to limit “community health centres” in Victoria to those that receive specific funding from the Victorian Government (grounds 9-20).
[16] In the course of the hearing of the appeal, having regard to Dr Gourabi’s contention that he was denied the opportunity to advance submissions before the Commissioner concerning the history of the Award, we invited him to file further written submissions concerning this matter. We subsequently issued directions to facilitate this occurring, and pursuant to those directions Dr Gourabi filed and served supplementary written material on 10 April 2019, and WMC filed and served supplementary written material in reply on 17 April 2019. In his supplementary submissions, Dr Gourabi outlined the relevant award history as being as follows (in summary):
• a Statement issued by the AIRC award modernisation Full Bench on 3 September 2008 19 identified the health and welfare services industry (excluding social and community services) as one to be dealt with in Stage 2 of the process;
• in submissions filed by the Australian Medical Association NSW (AMA NSW) on 31 October 2008, AMA NSW sought that the coverage of the proposed private medical practice award exclude doctors on the basis that they had previously been award-free and negotiated their own terms and conditions of employment; 20
• on 28 November 2008, AMA (NSW) filed a proposed draft “Private Medical Practice Award 2010”, the coverage of which reflected its written submissions of 31 October 2008 and excluded doctors employed in private practice;
• in submissions dated 31 October 2008, the Australian Salaried Medical Officers’ Federation (ASMOF) sought a separate occupational modern award for salaried medical officers (SMOs) in public and private hospitals and other settings including community health centres; 21
• on 4 November 2008, ASMOF filed with the AIRC a proposed “Salaried Medical Practitioners Award 2010” which provided that it covered employers of SMOs in the “Health Industry”, defined as “…the industry of the occupations of persons employed as Salaried Medical Practitioners including hospitals, hospices, benevolent homes, day procedure centres, aboriginal health services, health centres, the Red Cross Blood Service, the South Australian Institute of Medical and Veterinary Science, the Victorian Cytology Service, the Victorian Institute of Forensic Medicine and Commonwealth, State and/or Territory Public Services”;
• on 23 January 2009 the AIRC award modernisation Full Bench issued a Statement 22 together with an exposure draft of the proposed “Medical Practitioners Occupational Award 2010”;
• in its Statement the AIRC said the salaries in the exposure draft “are drawn mainly from those prepared by the Australian Salaried Medical Officers Federation as no other party dealt with medical practitioners”;
• the proposed coverage of the award was “employers of Medical Practitioners throughout Australia” within the classifications in the award, with “Medical Practitioner” defined as “a person who is registered to practice medicine in any State or Territory of Australia, and who is engaged in the practice of medicine” and with the classifications consisting of: Intern; Resident Medical Practitioner; Registrar; Senior Registrar; Career Medical Practitioner; Senior Career Medical Practitioner; Community Medical Practitioner; Specialist; Senior Specialist; Principal Specialist; Senior Principal Specialist; Deputy Director of Medical Services; Director of Medical Services;
• submissions filed by the Australian Medical Association (AMA), the AMA NSW, and the Australian Federation of Employers and Industries (AFEI) in response to the exposure draft all stated strong opposition to the making of an award covering medical practitioners working in areas that were currently award-free, including in general practice and private specialist practice, and the AMA contended that the proposed new award’s coverage should be confined to salaried medical practitioners working in the public sector (including community health centres), statutory bodies, private hospitals, and Aboriginal Medical Services;
• at a hearing before the award modernisation Full Bench on 23 February 2009, the AMA and the AMA NSW reiterated their written submissions, and the ASMOF submitted that “…we have no intention to extend our award coverage beyond the existing areas of award coverage…” and that “…we don't oppose the amendments proposed by the AMA in their written submission…”; 23
• on 3 April 2009, the Full Bench made a further decision 24 and published four modern awards, including the “Medical Practitioners Award 2010”;
• in its decision the Full Bench said that the Award had been altered since the release of the 23 January 2009 exposure draft but it did not provide any further statement as to how or why the alterations were made; 25
• the version of the “Medical Practitioners Award 2010” published on 3 April 2009 had the same coverage as the Award did when it commenced operation on 1 January 2010;
• on 25 January 2010, the Full Bench released a further exposure draft of the Award containing draft residual variations, none of which altered the coverage provisions other than to update coverage to include State reference instruments, and sought any comments on the proposed changes by 12 February 2010;
• on 12 February 2010 the AMA filed a submission in response which, among other things, proposed an amendment to the definition of “Community Medical Practitioner” in Appendix A of the Award to “remove some confusion that has arisen in the interpretation of the award by some employers” but not to alter its coverage;
• the definition relevantly provided that a community medical practitioner was “…employed to practise in community health centres or in general medical practice”, and the AMA sought that this be amended to read “employed to practise in a community health or medical centre that is operated by a Commonwealth, state or territory authority.”;
• the AMA submitted that the ASMOF had agreed to the proposed amendment; and
• in a determination issued on 26 March 2010, 26 the Full Bench made residual variations to the Award but did not make the amendment sought by the AMA; it did however amend the coverage provision in clause 4.1 by deleting the words “[T]his industry award” and inserting the words “[T]his occupational award.”
[17] On the basis of the above history, Dr Gourabi submitted that it was reasonable to presume three things: first, that the Full Bench had regard to the submissions that most doctors in general or specialist practice had not previously been award-covered; second, that the Full Bench was aware that some doctors in general practice were award-covered; and third, that in setting the definition of “medical practitioner” in the Award, the Full Bench did not intend to include all doctors in general practice or in specialist practice but equally did not intend to exclude all doctors in general practice or specialist practice. It was contended that the rejection by the Full Bench of the AMA submission of 12 February 2010 supports these presumptions.
[18] Dr Gourabi submitted that:
• it was reasonable to read the definition of “medical practitioner” in clause 3.1 of the Award as including doctors in general practice or in specialist practice;
• the descriptors in that definition should be given a simple and broad meaning because there was nothing in the history of the Award which suggested a different approach;
• the term “community health centres” was unrestricted by reference to any State/Territory legislation relating to registration or funding; and
• the term “day procedure centres” was not limited to a particular class of government registered health service, when that term was not present in the awards or NAPSAs that were considered as part of the award modernisation process; rather, the term first appeared in ASMOF’s draft proposed SMO award as part of an inclusive list of places of work, but the AMA subsequently proposed an amended definition which altered the list of places of work from an inclusive list to an exhaustive list.
[19] In his supplementary submissions, Dr Gourabi also addressed the meaning of the term “aboriginal health services” as used in the definition of “medical practitioner” in clause 3.1 of the Award. Dr Gourabi submitted, evidently adopting the contention he believed the Commissioner had wrongly attributed to him at paragraph [46] of the Decision (see paragraph [15] above), that the phrase is not capitalised and, on its plain meaning, should be taken to mean a health service providing health services to Indigenous Australians. Any other reading (such as, interpreting the phrase to mean that health services must be provided by Indigenous Australians or that the health service must be operated by Indigenous Australians, or that the health service must primarily or solely provide health services to Indigenous Australians) would give too narrow a meaning to the phrase that the Full Bench did not intend. This was said to be in contrast to the approach taken by the AIRC award modernisation Full Bench in making the Aboriginal Community Controlled Health Services Award 2010, 27 where the coverage of that award was limited to Aboriginal community controlled health services. The limited scope of coverage of the Aboriginal Community Controlled Health Services Award 2010 meant that there were health services providing health services to Indigenous persons that would sit outside the coverage of that award.
[20] WMC submitted that permission to appeal should be refused or, alternatively, if permission was granted, the appeal should be dismissed as there was no error in the Decision. It submitted that:
• there was no denial of procedural fairness in relation to the Award history review, as the parties expressed their consent to the Commissioner’s approach during the proceedings;
• the Commissioner correctly applied the approach to the interpretation of the coverage clause of the Award;
• the words of clause 3.1 of the Award were not ambiguous when read in their context according to normal canons of construction, and accordingly there was no proper basis to refer to extrinsic material, such as submissions made in the Award Modernisation process, to aid the interpretation of the provision;
• the terms “community health centres” and “day procedure centres” took their meaning from the public/benevolent/not for profit institution context of the surrounding words in the definition of “medical practitioner” in clause 3.1, and should not be given a strained, purportedly “plain language” meaning not intended by the framers of the Award;
• the objective history evidenced that the Full Bench made the Award with coverage not in the broad terms of the January 2009 exposure draft but in the narrower form in which it appears today, which supported the conclusion in the Decision that private general medical clinics are not “community health centres” or “day procedure centres” or otherwise within the range of places at which medical practitioners, as defined in the Award, are employed;
• even were it permissible to have regard to the award history adverted to by Dr Gourabi, this demonstrated even the ASMOF was prepared to confirm that it did not seek to extend the Award coverage of medical practitioners to previously award free areas including, at least, non-salaried doctors in private practices;
• there was no issue of Dr Gourabi being a salaried doctor in this case, since it was common ground that he was not paid a salary;
• Dr Gourabi’s submissions on the term “aboriginal health services” were irrelevant because WMC was not an Aboriginal health service and did not hold itself out as one, and the submission that if WMC at any time treated an Aboriginal patient it might be an “aboriginal health service” cannot be what the framers of the Award intended; and
• in relation to appeal grounds 9-20, the fact that requirements for registration of day procedure centres and government funding of community health services are State-based does not result in a differential treatment of services in Victoria as opposed to other States and Territories, since the key distinction is between publicly registered and funded day procedure centres and community health services, as against private general medical practice clinics and the latter were not eiusdem generis with the former.
[21] 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.28 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[22] This appeal is one to which s 400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[23] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as “a stringent one”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.29 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, 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.” 30
[24] 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.31 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.32
[25] We consider that it would be in the public interest to grant permission to appeal. The appeal raises an issue of general application as to the proper interpretation of the coverage provision of the Award which has not previously been considered by a Full Bench of the Commission. We are therefore required to grant permission to appeal in accordance with s 604(2) of the FW Act.
[26] Before turning to the specific grounds of appeal, it is useful to summarise the well settled principles to be applied in the interpretation of an award. For relevant purposes, each modern award has a “coverage” clause that determines “the employers, employees, organisations and outworker entities” that are covered by it. 33 The determination of whether a particular employment falls within the “coverage” clause of a modern award usually involves two considerations: first, a legal question concerning the proper construction of the coverage clause (and any other relevant provisions of the award) and, second, a factual question as to whether the employer and employee fall within the scope of the coverage clause, properly construed.
[27] The principles of construction of awards were recently summarised by Rangiah J in Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3). 34 In short summary, the task of construction begins with the natural and ordinary meaning of the words used. However an award is to be interpreted in light of its industrial context and purpose and its commercial and legislative context. The context includes the immediate textual context and the historical context of the origin of the provision in question.
[28] The coverage clause in clause 4.1 is framed by reference to the expression “medical practitioners”. That expression has an ordinary meaning, and if the ordinary meaning was applicable there would be no doubt that Dr Gourabi would be covered by the Award. However, the definition of “medical practitioner” in clause 3.1 makes it clear that the ordinary meaning does not apply; rather, there is a special and narrower definition. That definition operates to confine the coverage of the Award to those medical practitioners employed as such at one of the listed types of place of work. The context makes evident a clear intention that the Award is not to apply to medical practitioners generally. If the intention had been otherwise, the use of such a definition would be entirely unnecessary.
[29] It is well known, and the evidence makes clear, that a large proportion of medical practitioners in Australia work in general practice clinics or medical centres, of which WMC is one. The definition in clause 3.1 does not include any expression which would ordinarily be used to describe such a place of work. This supports the inference that medical practitioners employed at general practice medical centres constitute or are included in that category of medical practitioners in Australia which the Award does not cover.
[30] Dr Gourabi seeks to surmount this patent difficulty by relying upon the terms “community health centres” and “day procedure centres” as descriptors of his place of work. These terms are clearly composite expressions with well-understood meanings in the health industry. Their meaning is not to be ascertained merely by aggregating the ordinary meaning of the individual words used in each expression, as Dr Gourabi proposes in his submissions. A “community health centre” is not to be understood as being any “centre” which provides “health” services to the “community”, and a “day procedure centre” is not any “centre” which happens to provide “day procedures”. Particularly in the first case, reading the expression in this strained way would have the practical result that the Award would cover all medical practitioners, since it is difficult to imagine that there is any medical practitioner employed as such who does not work at a place which provides some type of health service to some component of the community. This would be contrary to the evident purpose of the definition to confine the coverage of the Award, and would also render the inclusion of the other types of place of work in the definition redundant.
[31] We broadly agree with the meaning assigned to these expressions by the Commissioner. The ordinary understanding of the expression “community health centre” is a publicly funded facility intended to provide health services and information to groups in the community who have been identified to be vulnerable to poor health outcomes. That is the case notwithstanding that the words in the expression are not capitalised. A “day procedure centre” is a medical facility which, as its designation indicates, has as its sole or primary purpose the performance of surgical and other medical procedures involving the patient being admitted and discharged the same day. Again, that it is not capitalised makes no difference.
[32] The history of the development of the coverage provision and the definition of “medical practitioner” in the Award contained in Dr Gourabi’s supplementary submission, which we have extensively summarised above, provides no support for his case. It is demonstrative of the following propositions:
(1) The AIRC award modernisation Full Bench initially published an exposure draft of a medical practitioners award which, according to its proposed terms, would cover medical practitioners generally. Whether this was intentional or in error is not clear.
(2) A number of relevant employer organisations opposed the making of an award which covered medical practitioners in general practice and private specialist practice, who had previously been award-free. The relevant employee organisation, the ASMOF, agreed with this position.
(3) The award modernisation Full Bench, in response to these submissions, added the special definition of “medical practitioner” to the proposed award which currently appears in clause 3.1 of the Award. The definition appears to have been derived from the definition of “Health Industry” contained in the ASMOF’s earlier proposal for a “Salaried Medical Practitioners Award 2010”.
[33] This history is demonstrative of an intention that the Award would not cover medical practitioners generally, and in particular would not cover those in private general practice.
[34] It may be accepted that the definition of the classification of “Community Medical Practitioner” in Schedule A of the Award is somewhat anomalous. The definition is as follows (emphasis added):
“A.7 Community Medical Practitioner is a medical practitioner who has completed not less than four years of post-graduate experience who is employed to practise in community health centres or in general medical practice.”
[35] The reference to “general medical practice” appears to be inconsistent with the coverage provisions of the Award. However this definition cannot operate to extend the coverage of the Award as provided for in clause 4.1 read with the definition of “medical practitioner” in clause 3.1. Further, the designation “Community Medical Practitioner” is itself not apt to describe a person employed in private medical practice and may suggest that the reference to “general medical practice” was not intended to mean private general practice. In the circumstances we do not consider that anything of significance can be drawn from the fact that this definition was not altered in response to the AMA application in 2010.
[36] We do not consider that the construction of the coverage of the Award preferred by the Commissioner, and by us, results in any infringement of s 154(1) of the FW Act. Section 154(1) provides:
154 Terms that contain State-based differences
(1) A modern award must not include terms and conditions of employment (State-based difference terms) that:
(a) are determined by reference to State or Territory boundaries; or
(b) are expressed to operate in one or more, but not every, State and Territory.
[37] The fact that the legislative regulation of community health centres and day procedure centres may differ as between States and Territories, resulting in differences in the practical operation of the Award, does not mean that there is any contravention of the s 154(1) prohibition. Insofar as the coverage of the Award in relation to community health centres and day procedure centres is concerned, it is not determined by reference to State or Territory boundaries and it is not expressed to operate in less than every State and Territory, either in form or in effect. 35
[38] On the evidence that was before the Commissioner, it is clear that WMC was not a “community health centre” or a “day procedure centre”, as we have construed those expressions. We consider therefore that the Commissioner’s conclusion that Dr Gourabi’s employment was not covered by the Award was correct.
[39] In the circumstances, we only need to deal briefly with Dr Gourabi’s contention that he was denied procedural fairness. Insofar as the Commissioner’s consideration of the history of the Award is concerned, we are not satisfied that there was any denial of procedural fairness. It is only necessary to refer in this connection to the following part of the transcript of the hearing before the Commissioner:
“THE COMMISSIONER: Do you have anything to tell me about the history of the award?
MR RYAN: No.
THE COMMISSIONER: No?
MR RYAN: No. I had no involvement.
THE COMMISSIONER: Well, that doesn’t stop most people telling me the history of awards.
MR RYAN: Having tried to understand the history of awards that I knew intimately they’re not trying to go down the path of trying to understand the history of an award that I didn’t have an intimate involvement with over many years. So, no I cannot advance that issue any further, Commissioner.
THE COMMISSIONER: Thank you.
MR RYAN: I would certainly if the Commission wants to direct the parties to do some work on that we’ll probably be up for the challenge but I haven’t done it as part of the submissions I’ve made today.
THE COMMISSIONER: I think unless the parties have any objection I will look into the history of the award and if there are any questions that arise from that I will refer them back to the parties for some further submissions.
MR RYAN: I would be more than content with that, Commissioner.” 36
[40] It is not clear to us that it was necessary specifically to draw attention to the issue of the history of the relevant provisions of the Award, having regard to the well-established principles of award interpretation to which we have referred. In any event, the Commissioner did raise the issue with Dr Gourabi’s representative, Mr Ryan, and he declined to make any submissions. If the failure of the Commissioner to seek further submissions on this issue once she turned her mind to it in the decision-making process constituted a denial of procedural fairness, then we consider that we have remedied this in the appeal by allowing Dr Gourabi to file full written submissions as to the history of the origin of clauses 3.1 and 4.1 of the Award. For the reasons earlier explained, those submissions confirm rather than deny the correctness of the conclusion reached by the Commissioner.
[41] We are also not persuaded that the Commissioner erred by not giving Dr Gourabi an opportunity to address her on the meaning of “aboriginal health service.” This was an expression used in the very provision the subject of argument. The Commissioner did not in our view need to tell the parties that the immediate textual context of the expressions the meaning of which were in contest might be relevant to the construction of those expressions. In any event, Dr Gourabi has also been afforded the opportunity to put submissions on this issue in the appeal. They do not take the matter any further.
[42] For the reasons given we reject the grounds of appeal and affirm the Decision of the Commissioner. We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is dismissed.
VICE PRESIDENT
Appearances:
J. Ryan for the Applicant.
M. Rinaldi, of counsel, for the Respondent.
Hearing details:
Before the Full Bench
2019.
Melbourne.
3 April 2019.
Final written submissions:
Applicant, 10 April 2019.
Respondent, 17 April 2019.
Printed by authority of the Commonwealth Government Printer
<PR709013>
2 Section 382(a) FW Act
3 Section 382(b)(i) FW Act
4 Section 382(b)(ii) FW Act
5 Section 382(b)(iii) FW Act
6 Decision at [14]-[15]
7 Decision at [7]
8 Decision at [7]
9 Decision at [16]
10 [1989] FCA 553, (1989) 30 IR 362
11 Ibid at 378
12 Ibid at [40]
13 Ibid at [41]
14 Ibid at [43]
15 Ibid at [43]
16 Ibid at [44]
17 Ibid at [45]
18 Ibid at [48]
19 [2008] AIRCFB 708, 177 IR 5
20 Submissions filed by the Australian Medical Association (NSW) dated 31 October 2008, at p.2
21 Submissions filed by the Australian Salaried Medical Officers’ Federation dated 31 October 2008 at [2.2]-[2.4] and [2.8]-[2.9]
22 [2009] AIRCFB 50, 180 IR 124
23 Transcript of proceedings dated 23 February 2009 at [724]-[736]
24 [2009] AIRCFB 345, 181 IR 19
25 Ibid at [145]
26 PR994544
27 [2009] AIRCFB 865, 188 IR 23 at [126]
28 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ
29 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 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] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46]
30 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
31 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
32 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
33 FW Act, s 143
34 [2019] FCA 37 at [52]
35 See 4 yearly review of modern awards - Proposed Norfolk Island Award [2018] FWCFB 4732, 281 IR 281 at [39]-[40]. The coverage of the Award insofar as the references in the definition of “medical practitioner” to “the South Australian Institute of Medical and Veterinary Science, the Victorian Cytology Service or the Victorian Institute of Forensic Medicine” are concerned did not arise for consideration in connection with Dr Gourabi’s argument concerning s 154(1), and accordingly we express no view about this.
36 Transcript PNs 537-546