C2014/3313, Transcript of Proceedings [2014] FWCTrans 362 (9 July 2014)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1050218-1

DEPUTY PRESIDENT BOOTH

C2014/3313

s.739 - Application to deal with a dispute

Mrs Inna Grabovsky
and
United Protestant Association of NSW Ltd T/A UPA
(C2014/3313)





Sydney

10.05AM, MONDAY, 30 JUNE 2014

PN1

THE DEPUTY PRESIDENT: Thank you. Mr Grabovsky, would you like to enter an appearance, please, for the record?

PN2

MR I. GRABOVSKY: Igor Grabovsky acting on behalf Inna Grabovsky by the Power of Attorney.

PN3

THE DEPUTY PRESIDENT: Thank you. And for the respondent?

PN4

MS J. McCONVILLE: Jane McConville representing the UPA.

PN5

THE DEPUTY PRESIDENT: Thank you, Ms McConville. And for the purposes of this morning you will need to apply for permission to appear, I think, as a paid agent, won’t you?

PN6

MS McCONVILLE: Pardon, sorry?

PN7

THE DEPUTY PRESIDENT: You will need to apply for permission to appear as a paid agent.

PN8

MS McCONVILLE: Yes.

PN9

THE DEPUTY PRESIDENT: Mr Grabovsky, do you have a view about Ms McConville’s appearance this morning?

PN10

MR GRABOVSKY: Sorry, I - - -

PN11

THE DEPUTY PRESIDENT: Do you have a submission that you would like to make in relation to Ms McConville’s application pursuant to section 596 of the Act, that she can appear as a paid agent on behalf of the respondent?

PN12

MR GRABOVSKY: Yes, I do, because it was my – like, I systematically for the past several months actually requested them to provide any sort of verification for and how Ms McConville represent because – and it’s been put even to complain to the ASIC because misrepresentation. The ASIC found that it was violation of sections of the Act. They will caution Ms Fogarty, which is the proprietor of the business name, because the performance (indistinct) it’s not the entity, it’s just a business name. So up until now I don’t know who and how and in which capacity the - - -

PN13

THE DEPUTY PRESIDENT: All right. So can I just stop you there for a moment?

PN14

MR GRABOVSKY: Yes.

PN15

THE DEPUTY PRESIDENT: Section 596 of the Act is not directed towards a question of the legal entity that is the respondent but rather that the respondent be able to be represented by a paid agent or a lawyer. Now, Ms McConville has not held herself out to be a lawyer but she is a paid agent and so she requires my permission to appear today. So do I assume that from that submission you’re objecting to her permission to appear?

PN16

MR GRABOVSKY: Yes.

PN17

THE DEPUTY PRESIDENT: Right. Okay. Ms McConville, would you just like to say a few words about why I should grant you permission to appear?

PN18

MS McCONVILLE: Yes. So Perform HR, which is the business I am employed by, is engaged by UPA to, as a consultant, act as their HR department. So it’s in that capacity as the HR function for the organisation that I apply to appear.

PN19

THE DEPUTY PRESIDENT: Right. Okay. Thanks very much. All right. Well, look, having considered those submissions I do grant Ms McConville permission to appear pursuant to section 596 of the Act. I do so on the basis that it would enable the matter to be dealt with more efficiently, in reference to Ms McConville’s submission about UPA not having an in-house HR function but rather her firm providing that function, and also that it would be unfair to allow Ms McConville to appear for UPA in the circumstances of the capability of the applicant. Though it’s not known on the record at this stage but I do know that you are a capable advocate, Mr Grabovsky, and legally trained, albeit not in this country. So on that basis you are granted permission to appear, Ms McConville. All right. Now, let’s - - -

PN20

MR GRABOVSKY: Your Honour, before we proceed - - -

PN21

THE DEPUTY PRESIDENT: Yes, Mr Grabovsky?

PN22

MR GRABOVSKY: - - - may I ask for clarification? Ms McConville represent UPA as an entity or in a personal capacity?

PN23

THE DEPUTY PRESIDENT: Well, Ms McConville will represent UPA as the legal entity UPA and that is the organisation that’s the respondent in this matter. Now, if there are any submissions to be made about the validity or, you know, the corporate personality, if you like, of the respondent then they’re better made subsequent when I ask for written submissions which is - the purpose of today’s hearing is not to deal with the substantive matters in contention between the parties but rather to program the matter for arbitration. And I’m sure there are a number of threshold issues that we will have to contend with. So if that’s one of them then you’ll tell me and I’ll ask you for submissions in relation to that matter and obviously the respondent will have an opportunity to reply to those.

PN24

MR GRABOVSKY: Thank you, your Honour.

PN25

THE DEPUTY PRESIDENT: Okay. All right. So let’s get down to the purpose of the hearing, which is to program the matter. This is a section 739 application. That is a matter that arises pursuant to the disputes procedure of the relevant enterprise agreement that covers the respondent and its employees. The applicant, Mrs Grabovsky, is an employee of the respondent. And, Mr Grabovsky, we’ve held a number of conciliation conferences in relation to the matter and it has not been able to be resolved by agreement and so at the applicant’s request the matter has been listed for direction.

PN26

So it would be helpful if you were to articulate on the record what relief you’re seeking from the commission pursuant to section 739 and then I’ll hear from the respondent. And then once we have a clear understanding of what the nature of the case would be I can then determine what the right directions are in terms of seeking submissions and witness statements and so on. So it’s over to you now.

PN27

MR GRABOVSKY: May I remain seated, your Honour?

PN28

THE DEPUTY PRESIDENT: You may remain seated. Yes. Certainly.

PN29

MR GRABOVSKY: Yes (indistinct) thank you. When the original application had been submitted to Fair Work Commission it was four points where ask Fair Work Commission to deal with. It’s namely point 1, misclassification of worker’s grade of engagement and employment by deception. A second point, it’s non-payment for execution of higher duties. The third point, overwork due to systematic shortage of staff. And the fourth point is adverse action by employer towards the worker, Ms Inna Grabovsky. Since original application – and it’s past several months then, more information been gathered from all different sources. And I would like to articulate more clearly, point by point, what we are looking for exactly.

PN30

THE DEPUTY PRESIDENT: Yes.

PN31

MR GRABOVSKY: So for the point 1, misclassification of grade of engagement and employment by deception, the worker had been employed on a wrong type of employment for duration of probationary period. The worker had been employed on the wrong classification – the wrong grade. Grade 2 instead of Grade 3, as originally has been discussed with the management. The worker had been employed on wrong category of employment for – and the worker wasn’t paid allowances for (indistinct) work (indistinct) has been paid allowances for the footwear, sock, stockings. She has not been paid allowances for being in charge of the section and she has not been paid allowances being on a call during the meal breaks.

PN32

So all those wrongdoings towards her, it was since day one and continue up until now. So it is continuous event. And so the classification especially, it’s the – one of the main – or cornerstone point. The classification, again, I made the extensive research through the various department. So I have the - - -

PN33

THE DEPUTY PRESIDENT: Yes.

PN34

MR GRABOVSKY: - - - like, submission, which I can present to the court.

PN35

THE DEPUTY PRESIDENT: Yes. So just bear with me for a moment, Mr Grabovsky. I just want to let you know that in the directions hearing I really only want to know the outline. Because I do have another matter at 11 o’clock. And it’s just in order that we can determine what the right directions are and specifically as to whether or not we commence with a jurisdictional process - - -

PN36

MR GRABOVSKY: Yes. I understand.

PN37

THE DEPUTY PRESIDENT: - - - or a substantive process – and I’ll hear from the respondent on that. But they can’t really respond to you until they hear (indistinct) so just give us the outline rather than make the case, please?

PN38

MR GRABOVSKY: Yes. So for this, we’re look (indistinct) determination of the Fair Work Commission on correctness of action of the employer. And since it is something which already could be quantified and actually only deal on the point of law where I would like to ask for (indistinct) monetary remedies - - -

PN39

THE DEPUTY PRESIDENT: Yes.

PN40

MR GRABOVSKY: - - - in which way – under which section – that’s why I’m looking for direction from you why – how to better deal with because it’s something which already been done. It’s stable. It’s nothing will be changed and (indistinct) determination I would like to apply for relief.

PN41

THE DEPUTY PRESIDENT: Well, I think we discussed during the conciliation conference that the arbitral process – and given that I would be exercising my discretion in relation to this matter under what is known as a private arbitration, can only declare what the commission decides is the meaning of the clause in relation the applicant – or the relevant clauses. And for actually any monetary remedy, the enforcement of that would need to be addressed in a different place. In the Federal Circuit Court.

PN42

MR GRABOVSKY: Different jurisdiction. Yes. So we (indistinct) like, I will stick with my original request - - -

PN43

THE DEPUTY PRESIDENT: Yes.

PN44

MR GRABOVSKY: - - - for determination of (indistinct) of the action of the employer.

PN45

THE DEPUTY PRESIDENT: Yes.

PN46

MR GRABOVSKY: That comes to the point 2, non-payment for execution of higher duty. Though I would like to apply for relief to (indistinct) particular point – it’s not actually non-payment for execution of higher duty but reclassification because it’s been done on a permanent basis. It’s not like one-off.

PN47

THE DEPUTY PRESIDENT: Okay.

PN48

MR GRABOVSKY: One-off case or occasionally happen.

PN49

THE DEPUTY PRESIDENT: Yes.

PN50

MR GRABOVSKY: It’s happened on - - -

PN51

THE DEPUTY PRESIDENT: Yes.

PN52

MR GRABOVSKY: So I would like to (indistinct) that point.

PN53

THE DEPUTY PRESIDENT: Yes. Fine.

PN54

MR GRABOVSKY: Overwork due systematic shortage of staff. To my knowledge, to at least for seven years it’s supposed to be three members morning staff, which is – had been two, up until recently. Recently, I’m talking about 2013. And the worker (indistinct) suffer because the – it was, like, very over the normal lot of work for the person – for the worker. And of course upon determination of those three points it will be then evident the adverse action which has been taken by the employer towards the worker when she raised those points first, personally, then through me, as a representative, on the various occasion. And, again, the relief for all four points, we are looking for determination of the Fair Work Australia on lawfulness of the action of the employer.

PN55

THE DEPUTY PRESIDENT: Sure. Okay. All right. I think that’s clear. Without unduly simplifying it, I think what you’re asking is for the Fair Work Commission to determine whether or not Mrs Grabovsky was correctly classified and also asking the Fair Work Commission to determine whether or not the respondent conformed with the provisions of the agreement in relation to workload management. So if I can hear from the respondent now? More on the jurisdictional points that you might want to raise - - -

PN56

MS McCONVILLE: Yes.

PN57

THE DEPUTY PRESIDENT: - - - because what I would like to turn my mind to then is whether or not we just set a program of directions that involves all of the submissions coming and being responded to or whether we halve them into two parts, that is jurisdictional and merit. So thanks, Ms McConville. Go ahead.

PN58

MS McCONVILLE: Yes, your Honour. So, I guess, firstly, in relation to the classifications. Our intention to challenge the applicant’s characterisation of those - - -

PN59

THE DEPUTY PRESIDENT: Yes.

PN60

MS McCONVILLE: - - - duties (indistinct) don’t agree with that factual assessment.

PN61

THE DEPUTY PRESIDENT: Sure.

PN62

MS McCONVILLE: In relation to point 3, the workload management, the enterprise agreement requires arbitration by consent, basically, and UPA doesn’t agree to the arbitration of those workload matters. So there is some jurisdictional issue there. On the applicant’s assessment of the adverse action, we also don’t believe that that is an appropriate reflection of adverse action under the - - -

PN63

THE DEPUTY PRESIDENT: Pursuant to the Act. Yes.

PN64

MS McCONVILLE: Pursuant to the Act. Yes.

PN65

THE DEPUTY PRESIDENT: Yes.

PN66

MS McCONVILLE: So I envisage that there would be some jurisdictional matters that need resolving.

PN67

THE DEPUTY PRESIDENT: Yes. So do you have a submission to make in terms of how directions, in your view, should be issued? Ought, for example, the jurisdictional points be ventilated first and a decision made on those and then the merit matters, such as they are - - -

PN68

MS McCONVILLE: Yes.

PN69

THE DEPUTY PRESIDENT: - - - then pursued?

PN70

MS McCONVILLE: I would envisage that the jurisdictional matters be heard first because it might simply what is essentially quite a large and complex - - -

PN71

THE DEPUTY PRESIDENT: Yes.

PN72

MS McCONVILLE: - - - set of facts. So - - -

PN73

THE DEPUTY PRESIDENT: Yes. Mr Grabovsky, I obviously have given thought to this prior to coming onto the bench today and my thinking was that it might be sensible to try to resolve the jurisdictional points on the papers as they are not matters that would generally give rise to the need for evidence. It’s a question of the legal argument. And the very strong jurisdictional point that I’m hearing from Ms McConville is that in relation to workloads – if you look at clause 42.6 of the agreement it says that:

PN74

The parties agree that FWA shall have the power to do all such things as are necessary for the just resolution of the dispute including -

PN75

and then, if you go to B, it says:

PN76

Arbitration, for disputes arising under clause 33 workload management only with the agreement of the parties -

PN77

and she has indicated that she doesn’t give that agreement. So if you want to contest that and make a jurisdictional submission that I can come to a determinative finding in relation to workloads then I think it would best if you made that submission in writing – and it was obviously given to the respondent in an appropriate timeframe and then you would have a right of reply and I would make a decision on the papers so that when the matter is listed for a hearing in the hearing room we don’t have a confused situation.

PN78

And furthermore, the respondent is not – if the respondent is able to persuade me against your application, that I don’t have jurisdiction in relation to that matter, then they’re not put to the onerous obligation of preparing substantive material in relation to workloads – which is a potentially huge evidentiary case, which I wouldn’t expect the respondent to have to prepare if indeed I find that there’s no jurisdiction to deal with it. So perhaps that’s the first thing that we can deal with and then because the – I don’t think that there’s an argument, is there, that the other matter is not open to the commission to resolve by arbitration.

PN79

MS McCONVILLE: No.

PN80

THE DEPUTY PRESIDENT: So in that case how long would you need, Mr Grabovsky, to prepare your submissions in relation to the workloads issue? Bearing in mind you would be preparing legal submissions about why I can make a decision in relation to that matter as opposed to - - -

PN81

MR GRABOVSKY: I think 10 days would be sufficient. Thank you.

PN82

THE DEPUTY PRESIDENT: 10 days. All right. Well, let’s make it a fortnight, including the weekend. I don’t have a diary on the counter but 14 days from today, Mr Grabovsky, the record will show that you should prepare your submissions and lodge them with the commission. And also make a copy and send a copy to the respondent. And then the respondent will have 14 days to reply and then you will have another seven days after that to respond to the reply that’s been prepared by the respondent. Then I will make a decision, you know, as quickly as I can. And then I will issue directions in relation to the merit matters – which may or may not include workloads, depending on my decision.

PN83

MR GRABOVSKY: Your Honour, in that case may I ask respondent to put it in writing, which they – because I know the jurisdictional point for the work loading.

PN84

THE DEPUTY PRESIDENT: Yes.

PN85

MR GRABOVSKY: Is there anything else you would – it’s easier for - - -

PN86

THE DEPUTY PRESIDENT: Well - - -

PN87

MR GRABOVSKY: - - - just in the form of letter, what the point
(indistinct) - - -

PN88

THE DEPUTY PRESIDENT: Yes. I don’t hear – but perhaps we’ll just ask Ms McConville to confirm that. That there’s any jurisdictional - - -

PN89

MR GRABOVSKY: Yes.

PN90

THE DEPUTY PRESIDENT: - - - objection to the exercise of the commission’s discretion.

PN91

MS McCONVILLE: No, there’s no other jurisdictional issue.

PN92

THE DEPUTY PRESIDENT: Okay. So it is merely in relation to workload. So I want you to do - - -

PN93

MR GRABOVSKY: What (indistinct) - - -

PN94

THE DEPUTY PRESIDENT: - - - is to indicate, you know, what your - - -

PN95

MR GRABOVSKY: What my argument (indistinct) - - -

PN96

THE DEPUTY PRESIDENT: Well, I’m just giving that some thought, actually, now, as we sit here. It actually might be more appropriate for your submission to come first.

PN97

MS McCONVILLE: Okay.

PN98

THE DEPUTY PRESIDENT: Because you’re making the jurisdictional objection to the matter being heard. And then Mr Grabovsky would be in a better position to contest that. I think that’s actually, now that I think about it and reflect on the bench – that’s the better way to go. So that’s the respondent has 14 days to put its - - -

PN99

MS McCONVILLE: Yes.

PN100

THE DEPUTY PRESIDENT: - - - jurisdictional objection to the workloads matter being dealt with. And then, Mr Grabovsky, you will respond to that in another 14 days and then the respondent will have seven days to reply to your response.

PN101

MS McCONVILLE: Can do.

PN102

THE DEPUTY PRESIDENT: Okay. And then having made that decision I’ll then issue directions in relation to the merit argument, if you like, and in so doing I’ll articulate precisely what I apprehend to be the question that is being put to me and then the parties can express a view on that. So that when we do come to the merit we know exactly what it is that we’re looking at.

PN103

MS McCONVILLE: Yes.

PN104

THE DEPUTY PRESIDENT: All right. Is there anything else for today?

PN105

MR GRABOVSKY: Yes. In order for me to – and for the commission to act efficiently and not make any determination based on assumptions (indistinct) several matters I would like to raise with the respondent and provide some documents and clarification - - -

PN106

THE DEPUTY PRESIDENT: Okay. So that would be you’re looking for an order to produce, Mr Grabovsky. Is that what you’re looking for? Material from the respondent?

PN107

MR GRABOVSKY: Yes.

PN108

THE DEPUTY PRESIDENT: Okay. So the way to do that is we wait until the jurisdictional matter is resolved so that you know exactly what it is – the case is that – so the respondent knows the case that it’s got to meet. And then you seek an order to produce, where you write - - -

PN109

MR GRABOVSKY: Order to produce.

PN110

THE DEPUTY PRESIDENT: And there’s a specific form that’s in the Fair Work Act – or a form that’s part of the Fair Work Rules, that are available on the Fair Work Commission website, that pertains to the section of the Act under which orders to produce are issued. And then you send that to me and I make a decision on that and then it goes to the respondent, to the extent that I order what you seek. But it would be, to me, sensible to wait until the jurisdictional matter is dealt with because otherwise you could be asking for materials which, you know, don’t pertain to the merit that we’re going to be looking at. And there could be no materials that would be relevant to the jurisdictional point, because that’s purely a legal point about the constraints placed on the commission by disputes resolution procedures – which you will read all about when Ms McConville provides her submissions. Okay?

PN111

MR GRABOVSKY: And, your Honour, I would like to also ask you for interlocutory order for respondent to provide actually (indistinct) they should by the Fair Work Act. Because the last slip, what they have provided to us, is just a piece of (indistinct) paper. And I need it. So it’s not in there.

PN112

THE DEPUTY PRESIDENT: All right. Well, look, the commission isn’t in a position to order enforcement of the Act, which is what you’re seeking. You would either be able to seek that material through the order to produce. You could also have a private discussion once the hearing is adjourned. Because if they are payslips that are Mrs Grabovsky’s payslips - given the demeanour and helpful attitude that the respondent has shown during conciliation I would be doubtful that they would be withholding those. It may simply be that you haven’t got everything that exists on the computer system of the respondent. I don’t think they would be seeking to withhold those payslips but - - -

PN113

MS McCONVILLE: No.

PN114

THE DEPUTY PRESIDENT: So deal with that directly with the respondent. Anything else for this morning?

PN115

MR GRABOVSKY: No. I believe that’s all clear.

PN116

THE DEPUTY PRESIDENT: Good. All right. Thank you. Anything from you, Ms McConville?

PN117

MS McCONVILLE: No. That’s all.

PN118

THE DEPUTY PRESIDENT: All right. The commission is adjourned.

<ADJOURNED INDEFINITELY [10.28AM]