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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                    1058553-1

 

 

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT DEAN
COMMISSIONER CAMBRIDGE
COMMISSIONER JOHNS

 

AM2020/89

 

s.158 - Application to vary or revoke a modern award

 

Application by APESMA
(AM2020/89)
Health Professionals and Support Services Award 2020

 

Sydney

 

9.30 AM, WEDNESDAY, 31 MARCH 2021


PN1          

VICE PRESIDENT CATANZARITI:  Good morning.  The Bench with me is Dean DP, Cambridge C and Johns C.  I'll take the appearances.  Yes, Ms Anthony.

PN2          

MS M ANTHONY:  Yes.  If the Commission pleases, I appear on behalf of the applicant in the substantive application and my name is Anthony, initial M, and my colleague, Ms Mirna Oghanna is also present.

PN3          

VICE PRESIDENT CATANZARITI:  Thank you, Ms Anthony.  Ms Thompson.

PN4          

MS K THOMPSON:  Yes.  Thank you, your Honour.  If the Commission pleases I appear on behalf of ABI and the New South Wales Business Chamber and with me I have my colleague, Ms C Simmons.

PN5          

VICE PRESIDENT CATANZARITI:  Thank you.  Mr Harrington.

PN6          

MR H HARRINGTON:  Thank you.  I appear on behalf of Ai Group.

PN7          

VICE PRESIDENT CATANZARITI:  Yes. Thank you.  For the avoidance of doubt I should indicate that in relation to the 2018 decision, that matter was referred to the President (indistinct) so he is aware of the paragraphs 146 to 149 and the President is also aware of APESMA's substantive application as well as the application filed by Mr Harrington.

PN8          

Today we will deal with Mr Harrington's objection that the matter should not proceed.  So Mr Harrington, we thank you very much for putting on the written submissions.  They have certainly focused the Bench on what the fundamental issues are.  We now invite you to make any oral submissions you wish to make.

PN9          

MR HARRINGTON:  Thank you, Deputy President.  Ai Group sought leave to file a written outline of submissions in anticipation of this oral hearing and the points we would make are essentially those that were communicated in that outline, which I understand has now been published on the web site and (indistinct) the policy considerations that underlie abuse of process and (indistinct) to persuade the Commission that APESMA's application to vary the Health Professionals Award should not be entertained.

PN10        

Now, the application that is before the Commission is very similar in terms of what the union seeks and the justification for the proposed variations to those earlier amendments that were sought in the 4-yearly review.  Now, specifically that amendment be made to the coverage provision of the award and alter the classification definitions with a view to extending occupational coverage for translators and interpreters under the Health Professionals Award.

PN11        

Even though some of the detail has changed - - -

PN12        

VICE PRESIDENT CATANZARITI:  Mr Harrington.  You are coming and out.  Can you just stay in front of the one spot?

PN13        

MR HARRINGTON:  Yes.  I'm not moving.  If the reception is bad, I'd be willing to sign in on Teams.  Maybe that will assist.

PN14        

VICE PRESIDENT CATANZARITI:  That would assist, I think.  Because we are on Teams at this end.

PN15        

MR HARRINGTON:  Okay.  Well, I'll hang up this phone and sign in on Teams so if you are willing to wait a bit, I'll hang up now.

PN16        

VICE PRESIDENT CATANZARITI:  Thank you.  We'll do that.

PN17        

MR HARRINGTON:  I've just signed back on.  Can everybody hear?

PN18        

VICE PRESIDENT CATANZARITI:  Much better.  Thank you, Mr Harrington.

PN19        

MR HARRINGTON:  Thank you.  So just to pick up, I was just referring to the broad submissions we have been making in our written submissions, which were forwarded to Commission a couple of days ago.  Just regarding the - what we've put earlier and to make it clear and to perhaps reiterate what we've said in our written submissions, we're not asserting that there is any jurisdictional bar to the Commission considering APESMA's application.

PN20        

We are simply asserting that considering the very recently proposed variations by APESMA in that earlier 4-yearly review, which were considered by the Commission as not being justified on the grounds that APESMA put, that the Commission should at least its discretion not to entertain the claim and our view is that the application has been made again and so soon after the arguments pertaining to translators and interpreters in the 4-yearly review was an abuse of process and should be rejected on that basis.

PN21        

So we say that to do so would be consistent with - - -

PN22        

VICE PRESIDENT CATANZARITI:  So when you say 'so soon', the evidence, as I recollect, was the matter finished in 2017.  Right?

PN23        

MR HARRINGTON:  I understand the decision which was made was in December 2018.

PN24        

VICE PRESIDENT CATANZARITI:  That is right, but the actual evidence that the Bench had in front of it is 2017.

PN25        

MR HARRINGTON:  Yes.  That - - -

PN26        

VICE PRESIDENT CATANZARITI:  (Indistinct) look at this since as I was on the Bench, I went back and had a look at it.  I just wanted to make sure your timeline is right.  While the decision took some time to come out, the actual evidence in front of the Commission, was as it was in 2017.

PN27        

MR HARRINGTON:  Yes.  We don't disagree with that, your Honour.

PN28        

COMMISSIONER JOHNS:  Mr Harrington, it's Johns C here.  I've read your submissions and I understand what you say about the estoppel arguments and the abuse of process.  In paragraph 16 of your submissions, if you have them there, you refer to APESMA's application being heard and considered by the Commission.  I've gone back to look at the decision, [2018] FWCFB 7350 and at paragraph 149, it seems to me the Full Bench has said:

PN29        

We consider that it is desirable for there to be unambiguous award coverage for the occupations of 'translator' and 'interpreter'.

PN30        

And then,

PN31        

We propose to refer this to the President for his consideration.

PN32        

It seems to me that it's a bit sort of like a Latrell Mitchell flick pass to the President and then it seems having regard to what the Vice President said this morning, it's now come back to this Full Bench.  What I can't see in the decision from 2018 is that the issue has been decided with any finality by any Full Bench.  It seems to me there was evidence that was heard or considered but not ever determined.  Is it the highest you get that in paragraph 149 where it says, 'We consider that is it is desirable', that that is what you say is the determination of the issue?

PN33        

MR HARRINGTON:  No.  We wouldn't agree with that.  Look, as we understand it, the Commission's earlier decision in December 2018 considered the reasons which APESMA brought in favour of its proposed variations not to justify making the Health Professionals Award an occupational award for translators and interpreters outside of the health industry.  The Full Bench - - -

PN34        

COMMISSIONER JOHNS:  No.  Mr Harrington, I'm asking you in paragraphs 146 to 149, where did the Full Bench make any determination of the issue?  Because an estoppel only arises for the type that you speak of where there is a determination.

PN35        

MR HARRINGTON:  Well, as I understand it, what the Full Bench said was that the reasons which APESMA put did not justify making the variation proposed.  Now, I can get a paragraph reference if you will just grant me a bit of time to get the decision up.  Here we go.  So paragraph 146:

PN36        

The evidence suggests that translators and interpreters are often employed by businesses established to provide translation and interpreting services to other businesses.  We accept that employees of these businesses are very often deployed in the health sector.  We do not consider that to be a good reason for this award to cover these employees when they are not working in the health industry.

PN37        

I'm relying that paragraph.

PN38        

COMMISSIONER JOHNS:  That sentence.  All right.  But that's as high as it gets?

PN39        

MR HARRINGTON:  That is as high as it gets.

PN40        

COMMISSIONER JOHNS:  Yes.  All right.  Well, I understand the argument.  Thank you.

PN41        

VICE PRESIDENT CATANZARITI:  Please continue, Mr Harrington.

PN42        

MR HARRINGTON:  Yes.  Thank you.  So in terms of justification for our view the matter shouldn't be entertained.  The Commission should look closely at this issue of abuse of process and we consider that if parties are simply able to remake applications over and over again after failing to achieve a desired result it would tax the resources of the Commission and other parties to respond, and shouldn't be considered an application for legitimate purpose.

PN43        

So if the Bench is minded to agree with our submission that the application that's been made is substantially similar and that the reasons put in support are themselves similar to those put in APESMA's application during the 4-yearly review, it should follow the application is an abuse of process.

PN44        

Now, it shouldn't be considered a novel idea to dismiss an application like that which APESMA has brought.  Estoppel principles have been developed by the courts to deal with just this issue where a party seeks to relitigate a claim that's already been dealt with in formal proceedings in some way.  Now, the majority in Dow Jones v Gutnick which has been referred to in our submissions, that the common law favours the resolution of disputes between parties by bringing a single action rather than excessive proceedings and we've argued in our written submissions that the same principles which underlies a preference towards the resolution of disputes in a single action, which underpin Anshun estoppel should be at least persuasive that APESMA's application shouldn't be entertained.

PN45        

Now, the key case which developed the principle of Anshun estoppel is referenced in our submission.  It applies that claims that could and should have been made in earlier proceedings, but which weren't.  And in that case, Port of Melbourne Authority was estopped from making an argument regarding an indemnity which could have been made in an initial proceedings concerning liability for a worker's injury.  Gibbs CJ, Mason and Aickin JJ said that the argument was so closely connected with the subject matter of an earlier action that it was to be expected that it would have been relied on as a defence to an initial claim and in that case Murphy J said that:

PN46        

These notions of res judicata and issue estoppel are founded on the necessity, if there is to be an orderly administration of justice, of avoiding re-agitation of issues.

PN47        

Now, the policy that underpins Anshun estoppel should - have also been referred to in Commission proceedings and we mention in our written submissions a case from the old AIRC whether Bench took the view that it was entitled to have regard to policy considerations that underpin estoppel, that included reagitation of issues as to whether to adopt the findings of another Full Bench which related to the matter before it and much more recently Lawler VP in Quinlivan v Norske Skog Paper Mills said that the policy position underlying Anshun estoppel was informed by a public interest in the finality of litigation and the avoidance of unnecessary multiplicity of litigation.

PN48        

So for the purpose of these proceedings, we think that this same public interest and the finality of litigation would justify the Commission declining to entertain APESMA's application.  Now, any new arguments raised in support of making the Health Professionals Award the default award for translators and interpreters might have been made in the 4‑ he yearly review and the short period of time - appreciating that issue of the dates, but we still consider it a short period of time that has elapsed - renders it unlikely that matters have substantially changed in such a way to justify the application.  So we think that the policy considerations that weigh against the Commission entertaining the reformulated claims are supported by provisions in the Act which require the Commission to perform its functions and powers in such a way that is fair and just and also the modern awards objective, which requires the Commission to take into account the need to ensure a simple and easy to understand, and stable modern award system.  And the object of the Act which is to provide a balanced framework for operative and productive workplace relations.  So if the Commission pleases, those are our submissions.

PN49        

VICE PRESIDENT CATANZARITI:  Yes.  I should note that in the 2018 decision in terms of the evidentiary basis, there was very limited evidence as well before the Commission, limited to two witnesses and if the matter goes beyond today, that would be a relevant factor in terms of how the case should ultimately run.  Clearly, to change an award there would have to be significant evidence and two persons doesn't get you anywhere in the course of what is a significant change that's being proposed.  But as I say, that was the evidence as of 2017.  Yes.  We will go then to - unless there are any questions from any members of the Bench, I propose to go to Ms Thompson.  Any questions Dean DP?

PN50        

DEPUTY PRESIDENT DEAN:  No.  Thank you.

PN51        

VICE PRESIDENT CATANZARITI:  Cambridge C?

PN52        

COMMISSIONER CAMBRIDGE:  No. Thank you.

PN53        

VICE PRESIDENT CATANZARITI:  Johns C?

PN54        

COMMISSIONER JOHNS:  No. Thank you, Vice President.

PN55        

VICE PRESIDENT CATANZARITI:  Ms Thompson, anything you wish to say?

PN56        

MS THOMPSON:  Thank you, your Honour.  No.  My instructions are we neither oppose nor support the AiG submissions in this regard and we are happy to leave the matter with the Commission.

PN57        

VICE PRESIDENT CATANZARITI:  All right.  Thank you.  Ms Anthony?

PN58        

MS ANTHONY:  Yes.  Thank you, your Honour.  I will just make one correction to your Honour's statement regarding the hearing which I think took place in 2017.  APESMA actually filed - I believe it was a total of six witness statements, four of which had confidentiality orders that related to them, but there were two witness statements that did not have confidentiality orders.  So there's - - -

PN59        

VICE PRESIDENT CATANZARITI:  I can't recollect that, so assume that may be right, but - - -

PN60        

MS ANTHONY:  And one of the witness statements that we did file was actually from an employer that runs a language services agency in the language services industry.  So we did actually have an employer as one of our witnesses.

PN61        

VICE PRESIDENT CATANZARITI:  Well, you had Mr Morgan who was not a confidential witness, but he's a managing director so he's in the actual decision.

PN62        

MS ANTHONY:  Yes.  So I was just making a correction in relation to the number of witnesses that were put forward in support of the application and there's no witnesses that were led in support of the opposition to the application.

PN63        

VICE PRESIDENT CATANZARITI:  That is so.  There was no witness support of the - apart from the legal points, there was no actual witness evidence against the proposal.

PN64        

MS ANTHONY:  Correct, your Honour.

PN65        

COMMISSIONER JOHNS:  Ms Anthony, it's Johns C.  If we're with Mr Harrington that that final sentence at paragraph 146 is a determination of the matter, what I'm interested to know is what's changed since 2017 and isn't it then accurate for Mr Harrington to say that nothing has changed and these things could have plainly been - or were plainly open to be agitated before the Full Bench back in 2017?

PN66        

MS ANTHONY:  Yes, your Honour.  I think in response to that, I would say that the - possibly if that one sentence was taken in isolation and if the issue estoppel was applicable to a matter was litigation of a 4-yearly review of the modern award process, in my submission it would not - the types of litigation that Mr Harrington was referring to is litigation where there's some adversarial process between two parties.  I don't believe there's any precedent for issue estoppel to apply in a modern award review process such as this one.  There's multiple interested parties.  They are not litigants in the common-law sense of the word and I think in Mr Harrington's submissions he actually made reference in paragraph 17 of his submission.  He says:

PN67        

If APESMA is allowed to proceed with this application, in addition to wasting the Commission's scarce resources, unfairness and injustice would be inflicted upon employers and their representatives whose resources are being stretched by the significant number of cases which are at present before the Commission, and who devoted resources to opposing APESMA's claim in the 4-yearly review.

PN68        

So in response to that, first of all I'd say we don't believe issue estoppel is applicable in a policy sense to this current litigation and this application.  I'd also point out that there were no witnesses and no mention of any actual employer in the language services industry as represented by AiG, so first of all I'd say the issue estoppel isn't really applicable in the present circumstances but also that paragraph 146 is clearly part of the considerations which consist of the full three paragraphs and I'd say that it's impossible to say that a determination has been made in that one sentence at the end of 146 when you consider the paragraphs that follow and that in 149 where the Commission is specifically saying that:

PN69        

We consider that it is desirable for there to be unambiguous award coverage for the occupations of 'translator' and 'interpreter'.  However we consider that this would best be determined by a separate and careful consideration of the appropriate award or awards to cover these occupations and the appropriate rate of pay to be payable which may require a consideration of work value or at least classification.  We propose to refer this to the President for his consideration.

PN70        

In the context of that last sentence of paragraph 149, I don't believe it is possible to characterise paragraph 146 as a determination to which issue estoppel should apply.  It's clearly part of a consideration, but leading to the - I'd say that it's an ongoing matter.  It's a referral to the President and it doesn't appear to have been closed off or concluded in such a way that it constitutes a determination to say that it's already been determined.

PN71        

And I would just add the matters that have been raised in those paragraphs 146 to 149, APESMA actually does welcome the Commission's consideration of those matters and we would suggest that this current application, where we are seeking to - while we are seeking to vary the award, one of the objectives is to achieve comprehensive occupational coverage for interpreters and translators.  There's a significant difference in that we've also developed in conjunction with NAATI, the body that is the accreditation body for translators and interpreters, we've put together a comprehensive schedule which sets out classifications for multiple levels of accreditation of translators and interpreters, which we would suggest is appropriate for an inclusion in an occupational award for translators and interpreters, which is substantially different to, I think, our initial application which we made to the 4-yearly review back in, I think, 2015.  But - - -

PN72        

COMMISSIONER JOHNS:  Sorry to interrupt Ms Anthony.  It's Johns C again.  It might be different material.  The question though is, well, why wasn't it open to you to present that material in 2017?

PN73        

MS ANTHONY:  Well, I will actually say that at the time that we were seeking to make the variation, we actually did in fact seek to make changes to the definition or the naming of translators and interpreters.  I think the original award and the award as it currently stands doesn't even make reference to the role of translator.  It makes reference to interpreters in the - in one of the schedules that refers to it as an indicative role in the support stream and the only title that it uses is 'Interpreter (unqualified)' and then at a higher level is 'Interpreter (qualified)' and we would suggest that's entirely unsuitable for a description of a role in an award in 2021.

PN74        

It's a bit like having an award for lawyers that says 'Lawyer unqualified', and it's not something that we would suggest is helpful in the language services industry or in the health industry, which is the primary user of translators and interpreters.

PN75        

So there are issues there which I would suggest were not dealt with in the decision of January 2018 and - but it's an evolutionary process in terms of working.  We've since then worked together with NAATI the accreditation body, and NAATI has actually - I believe, from that point forward have actually changed; their process for accreditation expanded the numbers are and that's what has prompted our proposed schedule to the award to incorporate what - and according to our having liaised with many sort of parties in the language services industry and the health industry.

PN76        

The primary users of interpreters and translators are government agencies - are the end user client and those end users are primarily in the health industry and they are directed to use NAATI-accredited translators and interpreters.  So it will be our submission if the matter proceeds that it's appropriate that the awards show the correct classifications that translators and interpreters are actually complying with when they are being used in the industry and that's a significant part of our application, which wasn't relevant back in 2015 and 2017 when the matter was heard.

PN77        

COMMISSIONER JOHNS:  Yes.  Thank you.

PN78        

MS ANTHONY:  I perhaps would also say that we do welcome the Commission's input into trying to achieve appropriate award coverage for translators and interpreters, because when this matter is heard - like originally when we made our application back in 2015, we sought to have translators and interpreters included in the list of common professionals, which is a schedule to the health professionals and support services award and all of the professionals in that list do in fact have occupational coverage and it seemed a most logical way to proceed with the application for interpreters to be actually put into that list of common professionals and there are quite a few professions in there such as social workers who I would suggest similar to translators and interpreters work heavily in the health industry but not necessarily strictly health professionals.

PN79        

So when we did make the application, that was the logic behind why we originally attempted to have them put into the list of common professionals.  However, we actually amended our application at the suggestion of the Bench.  The matter was listed for hearing before the Full Bench on 11 December 2017 and after the applicant made its opening statement, Catanzariti VP and Booth DP requested that relevant parties consider resolution of our application on the basis that translator and interpreter continue to sit in the support services stream, but continue to have award coverage if individuals performing those occupations move around to other industries.  And the suggestion was made that we would achieve occupational coverage by changing the coverage clause rather than moving the two professions into the list of common health professionals.

PN80        

And so we did actually listen to that suggestion from the Commission and amended our application accordingly. And we are very open to suggestions from the Commission as well, because our objective is to achieve occupational coverage and also appropriate award coverage for this group of - I would say very vulnerable employees.

PN81        

And we will continue to seek it and if, for example, the Commission was to determine and we would say that it hasn't yet been determined, but if as part of this separate process of reviewing what is appropriate award coverage the Commission was to say it wasn't appropriate for the Health Professional and Support Services Award to cover translators and interpreters on an occupational basis, we would then immediately consider making application that the Commission make an award either covering translators and interpreters or covering employers and the language services industry.

PN82        

And the reason that we have not or the reason we did not make such an award originally was the operation of section 163(2) of the Fair Work Act, which provides that the Fair Work Commission must not make a modern award covering certain employers or employees unless the Fair Work Commission has considered whether it should, instead, make a determination varying an existing modern award to cover them.

PN83        

And it's clearly confirmed and it was confirmed in the 2018 decision that the Health Professionals and Support Services Award does in fact cover translators and interpreters already.  And so because of the oration of that section, we are compelled to make the application to vary that award first.  But as I said, APESMA is very open to direction from the Commission as to we recognise that both the award review process and ultimately the making and varying awards is a matter for the Commission.

PN84        

And so if the Commission was to, as part of a separate consideration say that the Health Professionals Award in fact wasn't the appropriate award for translators and interpreters, we would then move to the next most appropriate vehicle and that might be a separate award.

PN85        

So I'm just putting the forward to say why in fact - like this process has been an evolutionary one and if there's a suggestion that we're just having another go at trying to make an award application where a matter had already been determined, I'm just trying to explain our purpose and our objective in making this most recent application.  It's not to have another go at something that was, in fact, unsuccessful.  Our interpretation of that decision was simply that it's been referred for the Commission to consider in a separate process and we're assisting to facilitate that separate process.

PN86        

VICE PRESIDENT CATANZARITI:  Have you anything further you want to say, Ms Anthony?

PN87        

MS ANTHONY:  I believe that that covers what I didn't want to say and thank you for the opportunity, your Honour.

PN88        

VICE PRESIDENT CATANZARITI:  Thank you.  Any questions, Dean DP?

PN89        

DEPUTY PRESIDENT DEAN:  No.  Thank you.

PN90        

VICE PRESIDENT CATANZARITI:  Cambridge C?

PN91        

COMMISSIONER CAMBRIDGE:  No.  Thank you.

PN92        

VICE PRESIDENT CATANZARITI:  Johns C?

PN93        

COMMISSIONER JOHNS:  No.  Thank you, Vice President.

PN94        

VICE PRESIDENT CATANZARITI:  Anything further, Mr Harrington?

PN95        

MR HARRINGTON:  Yes.  Thank you.  Look, if I could just address the point raised by Ms Anthony regarding matters which have been brought or points which have been raised since the original decision was handed down, but the changes to the proposed variations which Ms Anthony refers to do not, in our view, alter the underlying substance of the application just to make the award a default occupational award for translators and interpreters with a few exceptions in a small number of awards.

PN96        

Those matters which Ms Anthony refers to, specifically issues of accreditation, I understand the proposed variations in APESMA's submissions back in 2018 also dealt with that issue in a different way.  These we consider are issues which were dealt with I the original proceedings.  If I could just also refer to paragraph 149 and the degree to which it may indicate a lack of finality in the original decision from 2018.  The Full Bench said that it's desirable for there to be unambiguous award coverage for the occupations of translator and interpreter, but it considered that that issue should be determined separately.  This is a broader matter of award coverage for translators and interpreters than which was dealt with in that decision and that was referred to the President for his consideration.

PN97        

The subsequent application which has been brought by APESMA was referred to in that later decision from 24 November 2020 and it said that although the matter concerning award coverage for translators and interpreters was referred to the President, claims in relation to coverage for translators and interpreters would be addressed pursuant to this present application for variation.  So we say that the original December 2018 decision referred a broader question concerning award coverage for translators and interpreters to the present.  This wasn't an invitation to APESMA or any other party to simply reformulate and remake the original proposed claim with very similar or the same reasons which had already been considered by the Commission.

PN98        

Just a final point which has been raised regarding estoppel and the degree to which it applies in these proceedings and that was Ms Anthony makes much of the fact that there is no precedent for estoppel principles being used to justify dismissing proceedings at an earlier point in time in a modern award variation application.  We consider that the principles that are relevant to an abuse of process, specifically for finality of proceedings, are equally relevant in these present proceedings.  The Commission has considered these principles irrelevant in other matters that have been before it.  We see no reason why the principles should not be equally relevant here.

PN99        

VICE PRESIDENT CATANZARITI:  Yes.  Thank you.  The decision is reserved.

ADJOURNED INDEFINITELY                                                          [10.05 AM]