Fair Work Act 2009

s.604 - Appeal of decision

Appeal from decision of Commissioner Johns at Melbourne on 5 December 2018 - s 587 - no reasonable prospect of success - question of res judicata - costs - permission to appeal refused.

[1] Yet again, a proceeding has been brought in this Commission by Mr Igor Grabovsky, on behalf of his wife Mrs Inna Grabovsky, in relation to claims pertaining to her workload and alleged underpayment during her employment with the United Protestant Association of NSW Ltd (UPA), a not-for-profit operator of residential aged care facilities. Since March 2014, Mr Grabovsky has made no fewer than sixteen applications in the Commission concerning his wife's employment with UPA.

[2] The present proceeding is another appeal, this time against a decision of Commissioner Johns[1] to dismiss an application made by Mr Grabovsky on his wife's behalf under s 739 of the Fair Work Act 2009 (Act) and the disputes procedure in clause 43 of the UPA, NSWNMA and HSU NSW Enterprise Agreement 2014-2017 (Agreement). We refer to this application as the 2017 Application. The background to it is as follows.

[3] Mrs Grabovsky was employed by UPA from 2004 until her dismissal on 20 December 2017. She had worked as a part-time care service employee. For the last four years of her employment she was absent from work. On the same day as her dismissal, Mr Grabovsky filed the 2017 Application. It asked the Commission to deal with a dispute about Mrs Grabovsky's alleged underpayment, and her workload, which was said to have caused her injury and amounted to adverse action.[2]

[4] The Commissioner dismissed the 2017 Application under s 587(1)(c) of the Act. He concluded that it had no reasonable prospect of success because it was substantially the same as an earlier unsuccessful application made by Mr Grabovsky on his wife's behalf in 2014 (the 2014 Application). That dispute had been brought under clause 42 of the predecessor to the Agreement, the Aged and Home Care, NSWNA and HSU East Multi-Enterprise Agreement 2011-2014 (2011 Agreement). The 2014 Application had stated that the 'four major points of dispute' were Mrs Grabovsky's misclassification, non-payment of higher duties, 'overwork', and adverse action.

[5] In a decision dated 20 August 2014, Deputy President Booth determined that the disputes procedure in clause 42 of the 2011 Agreement was valid and meant what it plainly said, namely that the Commission could not arbitrate on questions of workload unless both parties agreed (the Booth DP decision).[3] On 29 October 2014, a Full Bench of the Commission refused Mr Grabovsky's application brought on behalf of his wife, for permission to appeal from that decision.[4]

[6] The question of whether Mrs Grabovsky had been underpaid was considered in a decision of Vice President Lawler dated 10 April 2015 (the Lawler VP decision).[5] The Vice President determined that Mrs Grabovsky had been correctly classified and had not been underpaid. On 25 June 2015, another Full Bench refused Mr Grabovsky's application for permission to appeal, and noted that the Vice President had correctly determined the issues of Mrs Grabovsky's classification and pay rate under the 2011 Agreement.[6]

[7] In his decision, Commissioner Johns compared the 2017 Application with the 2014 Application. He noted at [37] that the 2017 Application was made under the Agreement, whereas the 2014 Application was made under the 2011 Agreement, but that this was the only relevant difference between the two. He compared the terms of the two agreements and found them to be materially the same. At [38] he noted that neither agreement allowed the Commission to arbitrate on the question of workload management without the consent of both parties, and at [43] stated that the classifications in the two agreements were substantially the same. The Commissioner concluded that 'principles akin to res judicata ought to be applied' and that the 2017 Application should be dismissed because it had no reasonable prospect of success.[7] He considered that the 2017 Application was an attempt to re-litigate matters already decided by the Commission.[8]

[8] The Commission's powers on appeal under s 604 are exercisable only if there is error on the part of the primary decision-maker.[9] An appeal may be made only with the permission of the Commission. Section 604(2) requires the Commission to grant permission to appeal if satisfied that it is 'in the public interest to do so'. Permission to appeal may otherwise be granted on discretionary grounds. These are not specified however considerations that have traditionally been 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] Grounds 1, 2 and 3 of the notice of appeal contain bald contentions that the Commissioner acted outside jurisdiction, 'rendered ineffective provisions of the statute', and acted on wrong principle (grounds 1 to 3). We reject these grounds. Mr Grabovsky disagrees with the Commissioner's decision but this does not speak to error. As we explain below, the Commissioner dealt with the application in a manner consistent with the Act. He did not proceed on wrong principle.

[10] Ground 4 states that the Commissioner's decision 'endorses serious crimes'. This ground does not purport to identify error. In any event there is no basis for the claim that the decision 'endorses crimes'.

[11] Grounds 5 and 6 contend that the decision contains 'deliberate' errors of fact and law. Grounds 8, 9 and 10 alleged that the Commissioner acted with 'actual bias, prejudice and hatred' towards the applicant, had a conflict of interest, and 'acted corruptly'. These are not simply appeal grounds, but accusations of impropriety on the part of an officer of the Commonwealth. They should not be made without some plausible foundation. In this case, there is absolutely no basis for these claims. As appeal grounds, they are meritless. As accusations, they are scurrilous.

[12] The power to dismiss an application under s 587 involves the exercise of discretion. We understand from Mr Grabovsky's lengthy oral submissions that he seeks also to advance the contention that the Commissioner's decision to dismiss his application was affected by an error of the kind identified in House v The King,[10] such that his discretion miscarried. In this regard, ground 7 submits that the decision was manifestly unjust. We reject these contentions.

[13] The Commissioner's approach to the exercise of his discretion under s 587 was correct. Section 587(1) states that the Commission may dismiss an application if it is not made in accordance with the Act (s 587(1)(a)), is 'frivolous or vexatious' (s 587(1)(b)), or has 'no reasonable prospect of success' (s 587(1)(c)). In the course of considering whether to dismiss the application under s 587(1)(c), as UPA had urged him to do, the Commissioner took into account relevant considerations. He considered the substance of the 2017 Application and compared it with the 2014 Application. He compared the terms of the enterprise agreements that applied at the respective times. He concluded that the subject matter of the 2017 Application had already been determined by the Booth DP and Lawler VP decisions, and that it had no reasonable prospect of success. There was no error either in this approach or in its conclusion.

[14] We agree with the Commissioner that the 2017 Application sought to re-litigate matters that had already been determined. In such circumstances, not only was the decision to dismiss the application under s 587(1)(c) reasonably open to the Commissioner, it was clearly the appropriate decision to take. The proceeding had no reasonable prospect of succeeding. It would also have been unfair to UPA to allow Mr Grabovsky to rerun claims advanced on behalf of Mrs Grabovsky about workload and underpayments in the hope of achieving a different outcome.

[15] Mr Grabovsky contended that the two applications related to different enterprise agreements, and that they must therefore be applications of different character. But the relevant terms of those agreements are substantially the same, as is their alleged application to the circumstances of Mrs Grabovsky's employment with UPA.

[16] Mr Grabovsky sought to distinguish the wording of the 2014 and 2017 Applications, and pointed to the fact that they were drawn in very different terms. However the substance of the applications related to the same thing: they alleged that Mrs Grabovsky had been overworked during her employment with UPA, and that she was incorrectly classified and underpaid, contrary to the applicable enterprise agreement.

[17] Mr Grabovsky also argued that the applications pursued different relief. The 2014 Application sought twelve determinations from the Commission on the 'unlawfulness' of UPA's actions towards Mrs Grabovsky. These concerned the alleged unlawful behaviour of UPA constituted by its 'deceptive conduct'; its refusal to correct the misclassification of Mrs Grabovsky, or to pay her higher duties; a threat to dismiss Mrs Grabovsky; a refusal to provide an adequate number of staff; a failure to provide a safe working environment; and a decision to stop her weekly WorkCover payments. Five determinations were also sought in relation to the alleged failings and negligence of various managers.

[18] The 2017 Application sought two orders rather than twelve. But like the 2014 Application, these related to Mrs Grabovsky's workload and alleged underpayment. The first asked the Commission to declare clauses 36.4 and 43.6(b) of the Agreement, which preclude the Commission from arbitrating on workload matters unless all parties agree, to have no effect and to remove them from the Agreement. We note that the Commission has no power to do this. However, this claim for relief is quite obviously directed at removing an impediment to Mr Grabovsky re-agitating his claim that Mrs Grabovsky was overworked, and then having the Commission arbitrate on this question. Secondly, the 2017 Application asked the Commission to order UPA to pay all monies owed to Mrs Grabovsky 'due to the underpayment of the work performed'.

[19] The 2017 Application raised and sought relief in respect of the same two fundamental claims that were considered by the Booth DP and Lawler VP decisions, namely that Mrs Grabovsky was overworked and underpaid. The Commission has determined that it has no power to arbitrate on the workload claim. It has rejected the underpayment claim. And Full Bench decisions have refused permission to appeal from these decisions.

[20] Mr Grabovsky also argued that amendments were made to the Act after the determination of the 2014 Application, and that the legal framework for the 2017 Application was therefore different. He did not explain why this would have made any difference. In our view the submission has no substance. The legal framework remained relevantly the same.

[21] Mr Grabovsky said that the Commissioner was wrong to apply the doctrine of res judicata. The question of whether res judicata applies to Commonwealth tribunals was considered in Miller v University of New South Wales.[11] In that case, the Full Federal Court concluded that an applicant whose unfair dismissal application had been dismissed by the Commission was not estopped from seeking a declaration and penalties in the court for breach of an enterprise agreement. It held that the findings of the Commission in the unfair dismissal matter 'were merely steps along the way to the value judgment which had to be made in exercise of the only jurisdiction given to the AIRC, and could give rise to no estoppel'.[12] The Full Court also held that the application before it was not 'an attempt to litigate again matters which [had] already been decided against the appellant',[13] and that it was not an abuse of process. A proceeding in the Commission for relief on the ground that termination of employment was harsh, unjust or unreasonable was quite different from the jurisdiction which the Court was being asked to exercise in that case.

[22] The circumstances of Mrs Grabovsky's appeal stand in stark contrast to those in Miller. The 2017 Application brought before the same tribunal the same fundamental claims previously decided by it, under the same statutory provision (s739 of the Act) and in respect of the same facts.

[23] It is not necessary for us to decide whether the doctrine of res judicata applied to the proceedings before Commissioner Johns, or whether the 2017 Application constituted an abuse of process under the general law. The Commissioner stated that 'principles akin to res judicata ought to be applied'. He did not decide that the doctrine of res judicata did apply, or that it required him to dismiss the matter. The fact that the 2017 Application was seeking to re-litigate the same matters was a highly relevant consideration in the exercise of the Commissioner's discretion under s 587, not because the 2017 Application was barred or because an estoppel arose, but because there was no reason to expect any different result the second time around. The Commissioner concluded that the 2017 Application had no reasonable prospect of success.

[24] We would add that an additional and substantial impediment to the 2017 Application was the fact that Mrs Grabovsky did not perform any work under the Agreement. The last date that she attended for work at UPA was 27 August 2013. The Agreement was approved by the Commission on 2 December 2014. Mrs Grabovsky could not have been overworked or underpaid under this enterprise agreement. It might be said that clause 43.1 of the Agreement, which covers disputes about any matters 'arising in the employment relationship', is broad enough to embrace a dispute about matters arising in the employment under a previous instrument such as the 2011 Agreement. But even if that view were correct, there is no longer any dispute that can be dealt with under the Agreement in relation to the matters in the 2017 Application. It is simply not meaningful to speak of a dispute in relation to a matter that has already been determined. The disputes procedure in the Agreement is not engaged because there is no longer any 'dispute' for the purposes of clause 43.1.

[25] We find in the Commissioner's decision no appealable error. The decision is not attended with doubt, nor is there any other consideration that would support the grant of permission to appeal.

[26] Cases where an applicant seeks to rerun in the Commission an application, the substance of which has already been heard and determined, fall for consideration under s 587, either on the Commission's own motion or on application by a party. The Commission must afford an applicant in any matter natural justice, but the content of natural justice depends on the circumstances. The finite resources of the Commonwealth are not to be unreasonably diverted by parties who cannot accept that their claims have been unsuccessful and who seek to resubmit them to the Commission. It is unfair for their opponents to be entangled in repetitive litigation. And parties in other matters deserve their turn to be heard.

[27] The Full Federal Court in Miller, speaking of abuse of process, warned of the danger that 'persistent or unattractive litigants with awkward cases' might be refused access to justice if too broad an approach were adopted to staying actions which are 'somewhat like a previous proceeding.'[14] The 2017 Application was not such a case.

[28] Two more matters must be mentioned. First, there is presently before Commissioner Johns, awaiting the outcome of this appeal, an application by UPA under s 611 of the Act seeking costs against the applicant, on the basis that the 2017 Application was made vexatiously or without reasonable cause. In the last paragraph of his decision, the Commissioner stated that UPA might like to consider the utility of pursuing its application for costs. Statements from members discouraging parties from seeking costs are generally to be avoided. Each application for costs is to be earnestly and carefully considered on its merits in accordance with the Act. Section 611 serves an important purpose in the legal framework governing the Commission's dispute resolution function. The prospect of costs being awarded against a party under section 611 in an appropriate case should deter the types of unmeritorious proceedings with which that section is concerned.

[29] Finally, in light of the fact that the question of costs in this matter remains before Commissioner Johns, and recalling the content of appeal grounds 5, 6, 8, 9 and 10, we think it only fair to draw to Mr Grabovsky's attention the offences created by s 674 of the Act. In particular, s 674(2) states that a person commits an offence if the person recklessly uses insulting language towards a member of the Commission performing functions or exercising powers as a member of the Commission. During the appeal before us, Mr Grabovsky repeated his assertion in the notice of appeal that Commissioner Johns had acted corruptly, without offering any cogent basis for this claim. Had this statement been made without any substantiation directly to the Commissioner it could have been referred to the Australian Federal Police for investigation.

[30] For the reasons stated, permission to appeal is refused.

[1] [2018] FWC 7227, 5 December 2018

[2] Section 2.1 of the application dated 19 December 2017, lodged on 20 December 2017

[3] [2014] FWC 5634 at [21]

[4] [2014] FWCFB 7533

[5] [2015] FWC 2504

[6] [2015] FWCFB 3926 at [26]

[7] [2018] FWC 7227 at [39] and [44]

[9] Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[10] (1936) 55 CLR 499

[11] [2003] FCAFC 180 from [56]

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