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[2013] FWCFB 1846 [Note: refer to the High Court decision dated 7 August 2015 [2015] HCATrans 180 for result of appeal.] |
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FAIR WORK COMMISSION |
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DECISION |
Fair Work Act 2009
s.604
- Appeal of decisions
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SENIOR DEPUTY PRESIDENT WATSON |
MELBOURNE, 26 MARCH 2013 |
Appeal against decisions [[PR531618, PR532331 and PR532337] of Deputy President Hamilton at Melbourne on 20 December 2012 in matter numbers AG2012/8449 and AG2012/8450 and AG2012/8453.
[1] This decision concerns three appeals, pursuant to s.604 of the Fair Work Act 2009 (the Act), against decisions of 20 December 2012 by Deputy President Hamilton to approve the Essendon Private Hospital and the Australian Nursing Federation and Health Services Union Nurses Enterprise Agreement 2012, the Malvern Private Hospital and the Australian Nursing Federation and Health Services Union Nurses Enterprise Agreement 2012 and the Melbourne Eastern Private Hospital and the Australian Nursing Federation and Health Services Union Nurses Enterprise Agreement 2012 (the agreements). The appeals, as amended, 1 were against a decision concerning the authority of Mr Subramanian, who signed each agreement on behalf of the employer, to do so2 and decisions which approved each agreement.3
[2] An appeal was brought by the employer party to each agreement - Kaizen Hospitals (Essendon) Pty Ltd, Kaizen Hospitals (Malvern) Pty Ltd and Kaizen Hospitals (Mount District) Pty Ltd (collectively the appellants), each of which is part of the Independent Private Hospitals of Australia (IPHoA).
[3] Each agreement covered nursing staff. The Australian Nurses Federation (ANF) was a bargaining representative for a number of the nurses (over 80 collectively) and opposed the appeal.
Background
[4] The central issue in the appeal is whether or not the agreements were made by the employer. The context in which that issue arises requires some understanding of the background to the making and approval of the agreements.
[5] The application for approval of each agreement was made by the ANF, against a history within the Fair Work Commission, when named Fair Work Australia (the Commission).
[6] Each agreement was made 4 on 26 July 2012 and the ballots counted on 27 July 2012.5 Applications were made on behalf of by each hospital by its nominated representative, the Service Industry Advisory Group Pty Ltd (SIAG), and signed by Ms S Cook of SIAG in the capacity/position as the employer’s bargaining representative on 8 August 2012. Each agreement was approved, on the papers, by Deputy President Hamilton on 17 August 2012.6
[7] On the evidence, SIAG led the negotiations for the agreements, with the involvement of Mr Subramanian, who has been appointed by the IPHoA in April 2011 as the Corporate Manager responsible for the three Kaizen hospitals and related business activities owned by IPHoA in Victoria.
[8] The first approval decisions were appealed by the Kaizen hospitals.
[9] On 18 October 2012, 7 a Full Bench of the Fair Work Commission (previously known as Fair Work Australia) (the first Full Bench) granted permission to appeal, allowed the appeals and set aside the approval of the agreements. It did so on the basis that SIAG was not appointed as a bargaining representative for the employers in accordance with s.176(1)(d) the Act and:
• “If the applications were made by an employer bargaining representative, then they were made by a bargaining representative who was not validly appointed as such”; or
• “[I]f the view is taken that the applications for approval were made by the employing companies, the applications were filed with FWA and signed by a bargaining representative who was not duly appointed.”
[10] In those circumstances, the first Full Bench was unable to conclude that the applications were made by the employing companies as required by s.185(1) of the Act and did not consider that valid applications for the approval of the Agreements were made. 8
[11] The decision of the first Full Bench was of narrow compass, finding that in the absence of appointment as a bargaining representative for the employers in accordance with s.176(1)(d) the Act, SIAG was not entitled under the Act to apply for approval of the agreements or file and sign applications on behalf of the employers, in which case the applications for approval were not valid.
[12] Subsequently, on 18 October 2012, the ANF again applied for approval of the three agreements, noting that the Form F17 and Form F18, a signed copy of the agreement and the required number of copies of the agreement had been filed in the earlier (SIAG) applications for approval, requesting that the Fair Work Commission consider the material filed in the earlier applications for the purposes of the ANF applications.
[13] The agreements as filed in the earlier applications, and relied upon by the ANF in relation to its applications, were signed on behalf of the employer by Mr S Subramanian, under the title “Hospital Director & Corporate Manager” (in respect of Essendon) and under the title of “Corporate Manager” (in respect of Malvern and Melbourne Eastern).
[14] Mr Subramanian was appointed by Kaizen on 19 April 2011 in the following terms:
“I am pleased to confirm the appointment of yourself as the nominated representative of our company Flagtail Pty Ltd, as the Corporate Manager responsible for the hospitals and related business activities owned by IPHoA in Victoria. Currently there are three hospitals, namely Essendon Private Hospital, The Melbourne Eastern Private Hospital and Malvern Private Hospital.” 9
[15] His position title was said to be “Corporate Management Victoria and Hospital Director of Essendon Private Hospital.” 10
[16] Evidence was given in the proceedings before Deputy President Hamilton by:
• Mr B Megennis, Industrial Officer of the ANF; and
• Dr T Wenkart, Chief Executive of the employers: Kaizen Hospitals (Essendon) Pty Ltd, Kaizen Hospitals (Malvern) Pty Ltd and Kaizen Hospitals (Mount District) Pty Ltd (collectively Kaizen hospitals). The three companies are part of the Macquarie Health Corporation Group, which is ultimately owned by Dr Wenkart and his family.
[17] On the evidence, SIAG led the negotiations for the agreements, announcing itself as a bargaining representative of the employers in enterprise bargaining negotiations, with the involvement of Mr Subramanian. On the evidence of Dr Wenkart, 11 SIAG had been engaged by Mr Subramanian “to assist him with industrial relations matters from about February 2012”, although not as a bargaining representative.
The Decision of Deputy President Hamilton
[18] The decision of Deputy President Hamilton 12 dealt with arguments against approval put by the appellants on several grounds:
• the requirements of s.185(1) of the Act were not met as there was no agreement between the parties because Mr Subramanian had entered into the agreements without the authority of the employers, with the argument focused more on actual authority; and
• arguments categorised by his Honour as technical: no valid Form F17 had been filed, the requirements of Regulation 2.06A of the Fair Work Regulations 2009 were not met, the time in which to lodge the applications had not been met and should not have been extended and the forms accompanying the application were invalid because of the use of an incorrect name, and that the correct name to be used was Kaizen Hospitals Pty Ltd.
[19] In relation to the authority issue, his Honour concluded:
• “[P]ursuant to s.793(1)(a) of the Act, Mr Subramanian and others acted with apparent or ostensible authority on behalf of the operating companies and employers. The operating companies and employers negotiated and signed the three agreements”; 13 and
• “[P]ursuant to the authority of Mr Subramanian, the employer acted as a bargaining representative for the agreement on its own account consistent with ss.176(1)(a) and 793(1)(a)”. 14
[20] In relation to the technical issues, his Honour decided:
• In respect of the ANF applications, to waive compliance to the extent necessary with the rules that require the employer to lodge a Form F17; 15
• In respect of the objection related to regulation 2.06A, “Mr Subramanian was a senior manager of Kaizen with apparent authority to negotiate and sign the agreement . . . Sections 793-794 of the Act enable the corporation to act through an officer, employee or agent, and this has occurred in the matter before me”; 16
• “To extend time in which application for approval may be made in each case”; 17 and
• “[T]here is little doubt about the identity in each case of the employer having regard to the name of the employer used in the agreements. No claim is made that there would be difficulty in identifying the employer for the purposes of compliance and enforcement, the purpose of provisions such as s.285A.” 18
[21] His Honour also dealt with the approval matters under ss.186 and 187 of the Act, deciding:
“The requirements of ss.186 and 187 of the Act were met and he must approve the agreements.” 19
[22] In each of the specific approval decisions, his Honour found:
“[2] Further to my decision, [[2012] FWA 9905, PR531618] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.
[3] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.
[4] The Agreement is approved and, in accordance with s.54, will operate from 27 December 2012. The nominal expiry date of the Agreement is 30 June 2016.
[5] The Australian Nursing Federation being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2), I note that the Agreement covers the organisation.” 20
The appeal grounds and our conclusions
[23] The appellants raised a number of grounds on appeal, which they addressed in their written and oral submissions.
[24] The central issue raised in the appeal concerned whether the agreements had been made with the authority of the employer, 21 which we will return to after considering the other issues raised by the appellants.
[25] A number of the other appeal grounds are plainly without basis and/or are premised on the proposition that the agreements were not made with the authority of the employer. To the extent that the grounds fall within the second category, they are in essence a restatement of the central issue in the appeal.
[26] We deal with the appellants’ arguments by reference to the headings under which they appear in their written submissions.
[27] Under the heading, “Making of the Agreement” the appellants argued that the involvement of SIAG in the bargaining, when it was not a bargaining representative appointed in accordance with s.176 of the Act, renders the outcome of the bargaining process void and the making of an agreement without the knowledge or authority of the responsible company officer meant that the agreement was not made in good faith.
[28] There is no basis to either argument.
[29] The absence of an appointment of SIAG as a bargaining representative of the employer has the effect that it was unable to exercise any of the rights of bargaining representatives under the Act and is not subject to the obligations upon it within the Act. 22 The decision of the first Full Bench extends no further than that proposition. There is no basis for the further proposition that SIAG’s involvement in bargaining rendered the process and the outcome from it void.
[30] The appellants’ argument in relation to good faith bargaining, which was repeated under the heading “Approval”, is premised on the basis that good faith bargaining arises for consideration for agreement approval, which is not the case, except in respect of an agreement in relation to which a scope order is in operation. 23 Further, it misconceives the concept of good faith bargaining, which is directed to the actions of the bargaining representative of the other party. There can be no suggestion that the ANF did not bargain in good faith. At best, the good faith bargaining argument of the appellants is simply a restatement of the authority issue.
[31] Under the heading “Application for approval of an agreement”, the appellants argued that for the purposes of s.185(5), Regulation 2.06A of the Regulations provides that a copy of an enterprise agreement is a signed copy only if it is signed by the employer covered by the agreement and includes an explanation of the person’s authority to sign the agreement. This argument restates the authority ground and has no separate basis.
[32] The appellants also contended that that the agreement was not accompanied by a Form 17—Employer’s Declaration in Support of Application for Approval of Enterprise Agreement – as required by the Fair Work Australia Rules 2009. This ground of appeal has no basis. The Deputy President possessed and exercised power to provide relief from the rules and it was reasonable for him to do so in the circumstances of the applications before him.
[33] Under the headings “Errors committed with respect to the agreement, application and approval” and “Issue estoppel”, the appellants argued that Deputy President Hamilton reached findings inconsistent with findings of the first Full Bench, including, by inference, that SIAG undertook most of the direct negotiations with the ANF, but did so by way of assisting Mr Subramanian, and with his involvement and direction. 24 The appellants submitted that the Deputy President was prevented for making an inference inconsistent with findings of the first Full Bench.25 The only “finding” by the first Full Bench relevant to the findings of Deputy President Hamilton concerned an observation,26 made after determining that appeal, concerning the role of SIAG and Mr Subramanian in the bargaining process. There is no inconsistency between the findings of his Honour and those of the Full Bench. In fact his findings are consistent with the observation of the first Full Bench. Further, the “inference” of Deputy President Hamilton complained of by the appellants was in fact a finding based on, and supported by, evidence before him. The finding that Mr Subramanian acted with the assistance of SIAG to negotiate and sign the three Kaizen agreements was open to his Honour on the evidence.
[34] Under the heading “Application for approval”, the appellants argued that s.185 requires an agreement signed by the employer and absent an agreement signed with authority there was no agreement before Deputy President Hamilton. This argument again restates the authority ground and has no separate basis.
[35] Under the heading “Approval”, the appellants argued that Deputy President Hamilton, having rejected its authority argument, approved the agreements without any proper evidentiary basis for satisfaction of the approval requirements in the Act, in the absence of Form F17s, and failed to give reasons for his approval. There is no basis to these arguments. The Deputy President had a sufficient basis for approving the agreements, having regard to the statutory requirements in ss.186, 187 and 188 of the Act. The ANF, as the applicant had confirmed, to the best of its knowledge, that the facts described in the Form F17s filed with the first approval applications, and submitted, without challenge, that each of the statutory requirements had been met. Many of the approval requirements - for example, in relation to the better off overall test - could be assessed on the face of the agreements (and the relevant award) without the Form F17s. The appellants did not contest the ANF submission that his Honour could be satisfied that the approval requirements in the Act had been met. In these circumstances, his Honour was entitled to be satisfied as to each of the statutory requirements for approval. Further, Deputy President Hamilton did provide reasons for his approval of each agreement. 27 His reasons were adequate in circumstances where approval was not contested on the basis of the statutory considerations he was required to apply. The reasons published are in terms similar to those routinely published by Members of the Fair Work Commission in circumstances where there is no argument put that any approval requirement has not been met.
The Authority Issue
[36] The appellants submitted that Deputy President Hamilton erred in approving the agreements because there was no valid application before him for approval because no agreements had been made with the authority of the employers.
[37] The appellants submitted that the Deputy President erred in concluding that Mr Subramanian, pursuant to s.793(1)(a) of the Act, acted with apparent authority of the employers. The appellants submitted that “holding one’s self out as having authority is not enough to give rise to apparent authority in the requisite legislative sense”: 28 there must be circumstances justifying the belief on the part of those who dealt with Mr Subramanian, that he was acting with authority.29
[38] The appellants relied on the legal principles contained in the reasons of Diplock LJ in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd 30 concerning the conditions necessary to entitle a contractor to enforce against a company contract entered into on the company’s behalf by an agent with no actual authority to do so.
[39] The appellants submitted that the Deputy President erred, on the evidence, in finding that Mr Subramanian and others acted with apparent or ostensible authority on behalf of the operating companies and employers in negotiating and signing the agreements, submitting that:
• Deputy President Hamilton was wrong to rely on the involvement of Mr Subramanian in earlier (non-ANF) agreements because the evidence was that he did so with the authority and under the direction of Dr Wenkart and there was no evidence, in any case, that the ANF was aware of that role prior to the making of the three ANF agreements.
• Deputy President Hamilton erred in finding that Mr Subramanian was directly involved in the negotiations leading to the ANF agreements, misconstruing the evidence as to Mr Subramanian’s role and overstating his involvement.
• Deputy President Hamilton erred in finding that Mr Subramanian must have been ultimately responsible for all actions taken in developing and approving the agreements, having regard to the evidence of Dr Wenkart that Mr Subramanian contractually did not have responsibility for developing agreements or any agreements.
[40] The ANF submitted that permission to appeal should not be granted, with the “principal issue raised on the appeal” by the appellants concerning only the appellants’ internal management processes in relation to the negotiation of agreements and is not a matter of public interest. It submitted that the appellants’ argument that there can be no agreement between the corporate entities and their employees because the CEO was not aware of the agreements is simply not the case when the agreements have been negotiated and agreed to by officers, employees and/or agents of the appellants. It submitted that the agreement was made with authority under s.793 of the Act: s.793 of the Act entitled Deputy President Hamilton to find that the actions of Mr Subramanian were actions of the appellants.
[41] The ANF submitted that the appellants’ submissions misconstrued the findings made in relation to authority made by Deputy President Hamilton: he did not find that Mr Subramanian had express actual authority to negotiate and sign the ANF agreements, he found that he had implied actual authority or apparent (ostensible) authority.
[42] The ANF submitted that apparent or ostensible authority arises in circumstances where an appearance of authority is given and a third party relies on the apparent authority. A principal may make an express representation that an agent has authority to do certain acts or a representation may be implied from a course of conduct or by the engagement of an agent in a position that usually carries certain authority. The ANF relied on the High Court of Australia decision in Pacific Carriers Ltd v BNP Paribas (Pacific Carriers) 31 the High Court described the type of situation in which such a representation could be implied:
“In many cases the representational conduct commonly takes the form of the setting up of an organisational structure consistent with the company’s constitution. That structure presents to outsiders a complex of appearances as to authority. The assurance with which outsiders deal with a company is more often than not based, not upon inquiry, or positive statement, but upon an assumption that company officers have the authority that people in their respective positions would ordinarily be expected to have . . . A kind of representation that often arises in business dealings is one which flows from equipping an officer of a company with a certain title, status and facilities . . . The holding out might result from permitting a person to act in a certain manner without taking proper safeguards against misrepresentation.”
[43] The ANF submitted that there was no inconsistency with any finding of fact by the first Full Bench.
Conclusion as to authority
[44] The critical finding of Deputy President Hamilton in issue is that at paragraph 53 of his decision that:
“On the evidence before me, pursuant to s.793(1)(a) of the Act, Mr Subramanian and others acted with apparent or ostensible authority on behalf of operating companies and employers. The operating companies and employers negotiated and signed the three agreements.” 32
[45] His Honour’s ultimate conclusion was based on s.793 of the Act which provides:
“793 Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;
is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
Disapplication of Part 2.5 of the Criminal Code
(4) Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act.
Note: Part 2.5 of the Criminal Code deals with corporate criminal responsibility.
(5) In this section, employee has its ordinary meaning.”
[46] The application of s.793 of the Act was addressed by Justice Katzmann in Australian Workers Union v Leighton Contractors Pty Ltd 33 (Leighton Contractors)in the context of considering whether the agreements in issue in that matter where made within the meaning of the Act. Her Honour found that even if the relevant union officer (in that case) did not have actual authority to sign the agreement, the operation of s.793 entitled the employers and Fair Work Commission to regard the signing of the agreements by the officer as the execution of the agreements by the union.
[47] Justice Katzmann summarised the effect of s.793 as follows:
• Section 793 relevantly provides that any conduct engaged in on behalf of a body corporate by an officer, employee or agent is taken, for the purposes of the FW Act, to have been engaged in also by the body where the conduct is within the person’s actual or apparent authority.” 34
• its effect is to attribute to the corporation the conduct of the individuals referred to in the section.” 35
• section 349(2) of the WR Act (which is relevantly identical to s 793(1)) ‘in substance, deems conduct engaged in by the prescribed persons on behalf of the body corporate to be conduct also engaged in by the body corporate’.” 36
• The effect of the section is that Mr Close’s [Mr Close was the union officer in the matter] signature is also the signature of the CFMEU, provided, of course, that in signing the document Mr Close was acting within the scope of his actual or apparent authority.” 37
[48] Her Honour noted three preconditions of the enlivening of the operation of s.793:
“First, the conduct must be engaged in on behalf of the body corporate. Secondly, the conduct must be engaged in by an officer, employee or agent of the body corporate. Thirdly, the officer, employee or agent must have been acting within the scope of his or her apparent authority.” 38
[49] To the extent that the appellants focussed its submissions in the appeal on actual authority, it misconstrued the basis upon which Deputy President Hamilton determined the issue before him. As noted by Justice Katzmann in Leighton Contractors:
“It is no answer to the proposition that he had apparent authority to show that he had no actual authority.” 39
[50] In addressing apparent authority, Justice Katzmann noted that the relevant legal principles are largely contained in the reasons of Diplock LJ in Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd 40 and recorded the four conditions summarised by Diplock LJ as necessary to entitle a contractor to enforce against a company a contract entered into on the company’s behalf by an agent with no actual authority to do so. They are:
(1) that a representation that the agent had authority to enter on behalf of the company into a contract of the kind sought to be enforced was made to the contractor;
(2) that such representation was made by a person or persons who had “actual” authority to manage the business of the company either generally or in respect of those matters to which the company relates;
(3) that he (the contractor) was induced by such representation to enter into the contract, that is, that he in fact relied upon it; and
(4) that under the memorandum or articles of association the company was not deprived of the capacity either to enter into a contract of the kind sought to be enforced or to delegate authority to enter into a contact of that kind to the agent.
[51] In Pacific Carriers 41 the High Court said in relation to apparent or ostensible authority:
“In many cases the representational conduct commonly takes the form of the setting up of an organisational structure consistent with the company’s constitution. That structure presents to outsiders a complex of appearances as to authority. The assurance with which outsiders deal with a company is more often than not based, not upon inquiry, or positive statement, but upon an assumption that company officers have the authority that people in their respective positions would ordinarily be expected to have. In the ordinary case, however, it is necessary, in order to decide whether there has been a holding out by a principal, to consider the principal’s conduct as a whole.
In the present case, BNP insisted that the necessary representation had to be one made to Pacific by BNP about Ms Dhiri, not merely one made by Ms Dhiri about herself. Again, this is true, but it is also an over-simplification. The point was regarded as decisive in the Court of Appeal. Sheller JA considered that ‘the only evidence of any representation by BNP to [Pacific] has to be found in Ms Dhiri’s signature on the NEAT LOIs. In other words the argument has to be that Ms Dhiri by herself signing the document represented that she had authority to and did bind BNP to a contract to indemnify’. There is more to the case than that.
A kind of representation that often arises in business dealings is one which flows from equipping an officer of a company with a certain title, status and facilities. In Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd, for example, the Court spoke of the representation that might flow from supplying a particular person with ‘a blank order form, thus arming him with a document which, when he signed it, would bear the hallmark of authenticity’. The reference to corporate administrative procedures under which an officer is armed with a document to which he or she can, by signature, impart an appearance of authenticity is a reminder of the wider principle of estoppels which may be relevant to a question of ostensible authority. The holding out might result from permitting a person to act in a certain manner without taking proper safeguards against misrepresentation.” [footnotes omitted]
[52] The central issue raised in this appeal is whether Deputy President Hamilton erred in finding that Mr Subramanian acted with apparent or ostensible authority on behalf of the operating companies and the employers in negotiating and signing the agreements.
[53] We are satisfied that Deputy President Hamilton applied the correct legal principles in considering whether Mr Subramanian acted with apparent authority in negotiating and executing the agreements. There was no serious proposition to the contrary advanced by the appellants. Its submissions were primarily directed to the proposition that the conclusion reached by his Honour after applying those principles was not available to him on the evidence before him.
[54] We are also satisfied that the finding of Deputy President Hamilton that Mr Subramanian acted with apparent or ostensible authority on behalf of the operating companies and the employers in negotiating and signing the agreements was open to him on the evidence. The evidence supports a conclusion that Mr Subramanian acted with the assistance of SIAG to negotiate and sign the three Kaizen agreements and acted with the appearance that he had authority to do so, consistent with the representation of authority arising from his title, status and facilities and his interaction with the ANF, assisted by SIAG, in negotiating, the making of and the signing the agreements.
[55] It was open to Deputy President Hamilton to find that the negotiation and entering into enterprise agreements fell within the contractual responsibility of Mr Subramanian for the hospitals and the title of Corporate Manager. The “general objective” within Mr Subramanian’s letter of appointment 42 of “Read, understand and apply Staff Awards, Agreements, and Contracts as relevant to each Hospital” was a specific requirement upon him and could not be reasonably read as a limitation on the responsibilities and authority which would be reasonably associated with the responsibility of the Corporate Manager of the hospitals.
[56] Much of the appellants’ case against Deputy President Hamilton findings on the evidence was directed to actual authority and did not materially reflect upon the findings of Deputy President Hamilton as apparent or ostensible authority. In this context, the appellants raised other evidence said to be ignored by Deputy President Hamilton - for example Dr Wenkart’s evidence as to his reliance on management meetings (SMMs and CMMs) as to important matters affecting the hospitals. Such evidence went to the internal decision making processes of management and actual authority and does not materially affect the findings of Deputy President Hamilton in relation to apparent or ostensible authority.
[57] Other attacks on the findings of Deputy President Hamilton by the appellants similarly failed to distinguish between actual and apparent authority - for example the criticism of his finding that Mr Subramanian had apparent authority on the basis that the time of the (second) approval process, it was known to Deputy President Hamilton that Mr Subramanian, did not have (actual) authority to sign.
[58] Many of the appellants’ criticisms of the findings of the Deputy President were of the nature of a nitpicking approach to be avoided by appeal benches. 43 For example, the appellants were critical of a finding that Ms B Taylor, Hospital Director, was to attend a negotiating meeting with the ANF, on the basis that she was to attend with SIAG, not with Mr Subramanian. This is of no importance, given the evidence that Mr Subramanian had engaged SIAG to assist with industrial relations matters.44
[59] In relation to the central issue of apparent authority, we are not satisfied that Deputy President Hamilton erred in relation to either the legal principles applied, nor in the conclusion he reached, following the application of those principles to the evidence before him.
Conclusion
[60] An appeal under s.604 of the Act may only proceed with the permission of the Fair Work Commission. This would normally require an appellant to demonstrate an arguable case of appealable error and refer to other considerations which would justify the granting of permission to appeal. Subsection 604(2) requires the Fair Work Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so.
[61] We are not satisfied that the appellants have established a basis for permission to appeal to be granted. We see no error in the decision of Deputy President Hamilton. The issues which arise in the appeal in reality concern the internal control processes of the IPHOA and are not matters of public interest. We deny permission to appeal. The application for permission to appeal is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
G Hatcher of Counsel with K G Bennett for the Appellant.
A Duffy of Counsel with B Megennis for the Respondent.
Hearing details:
2013.
Melbourne:
February 13.
1 Transcript at paras 115-124.
3 [2012] FWAA 10420, [2012] FWAA 10505, and [2012] FWAA 10511 respectively.
4 Section 182 of the Fair Work Act 2009.
5 Attachment BM-1, to the Statement of Mr B Megennis, at para 30.
6 [2012] FWAA 7066, [2012] 7068 FWAA and [2012] FWAA 7071.
8 [2012] FWAFB 8866, at paras 16-18.
9 Statement of Dr Wenkart, Attachment TW-1.
10 Statement of Dr Wenkart, Attachment TW-1.
11 Statement of Dr Wenkart, Attachment A, para 26.
13 [2012] FWA 9905, at para 53.
14 [2012] FWA 9905, at para 60.
15 [2012] FWA 9905, at para 66.
16 [2012] FWA 9905, at para 64.
17 [2012] FWA 9905, at para 67.
18 [2012] FWA 9905, at para 62.
19 [2012] FWA 9905, at para 68.
20 [2012] FWAA 10420, [2012] FWAA 10505, and [2012] FWAA 10511.
21 Appellants’ written submissions at para 2.
22 See, for example, s.183, s.184, s.185, s.190, s.228, s.229, s.231, s.233, s.234, s.236, s.238, s.240, s.242, s.244, s.252, s.254 and s.260 of the Fair Work Act 2009.
23 Section 187(2) of the Fair Work Act 2009.
24 [2012] FWA 9905, at para 29.
25 Blair v Currans (1939-40) 62 CLR 464 at pp. 531-532.
26 [2012] FWAFB 8866, at para 21.
27 [2012] FWAA 10420, [2012] FWAA 10505, and [2012] FWAA 10511.
28 Appellants’ written submissions at para 58 and Re J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers – Western Australia Branch and others (1992) 111 ALR 502 at pp. 533-534.
29 Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Another (2000) 100 FCR 530 at para 59.
30 (1964) 2 QB 480 at 502-509; approved by the High Court in Crabtree-Vickers Pty. Ltd. v Australian Direct Mail Advertising & Addressing Company Pty. Ltd. (1974-1975) 133 CLR 72 at 79.
31 (2003-2004) 218 CLR 451 at paras 36-38 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.
32 [2012] FWA 9905 at para 53.
33 [2013] FCAFC 4 (29 January 2013), at paras 82-98.
34 [2013] FCAFC 4 (29 January 2013), at para 83.
35 [2013] FCAFC 4 (29 January 2013), at para 86.
36 Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 100 FCR 530 at para 58.
37 [2013] FCAFC 4 (29 January 2013), at para 89.
38 [2013] FCAFC 4 (29 January 2013), at para 90.
39 [2013] FCAFC 4 (29 January 2013), at para 91.
40 [1964] 2 QB 480 at 502–509, which were approved by the High Court in Crabtree-Vickers Pty. Ltd. v Australian Direct Mail Advertising & Addressing Company Pty. Ltd. (1974-75) 133 CLR 72 at p.79.
41 (2004) 218 CLR 451, at paras 36-38.
42 Statement of Dr Wenkart, Attachment TW-1.
43 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and others (1996) 185 CLR 259 at 291, adopted by a Full Bench in Re Visionstream Certified Agreement 2001, AG810160 PR947076.
44 Statement of Dr Wenkart, Attachment A, para 26.
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