DECISION

Fair Work Act 2009
s.158 - Application to vary or revoke a modern award

APESMA T/A Professionals Australia
(AM2020/89)

Application to vary an award – threshold issue of whether to dismiss due to abuse of process – no abuse of process – application for dismissal dismissed.

Introduction and background

[1] On 18 August 2020, the Association of Professional Engineers Scientists Managers Australia (APESMA) filed an application (the Application) to vary the Health Professionals and Support Services Award 2020 (the Award). The Application seeks to achieve occupational coverage of the Award for translators and interpreters by inserting a new subclause at the end of clause 4 and inserting a new Schedule K – Translators and Interpreters.

[2] Subsequently, a Notice of Listing was published on the Fair Work Commission (the Commission) website to notify parties that the matter was listed for mention on 21 December 2020. The only employer group to respond by the time of the 21 December mention was the Australian Industry Group (AI Group). Given the lack of response from employer groups and, with the parties’ consent, the matter was stood over until 9 February 2021 in order to ascertain whether there were more interested parties. Ms Anthony, representing APESMA, undertook to contact interested parties.

[3] At the 9 February 2021 report back, the only employer groups to participate were the AI Group and the Australian Business Industrial and NSW Business Chamber (ABI and NSWBC). The AI Group was represented by Mr Harrington, ABI and NSWBC by Ms Thomson and APESMA by Ms Anthony. During the report back, AI Group indicated that they were of the preliminary view that the Application was an abuse of process and should be dismissed. The Commission directed the employer groups to discuss amongst themselves and then to advise the Commission regarding whether they would press the application.

[4] On 23 February 2021 AI Group advised the Commission that it pressed the application that the Commission deal first with the threshold issue of whether the Application should be dismissed on the grounds of abuse of process. On 26 February 2021, ABI and NSWBC wrote to the Commission to confirm that it would oppose the Application made by APESMA but would otherwise be content to leave the proposal outlined by AI Group in its correspondence of 23 February 2021 in the Commission’s hands.

[5] On 11 March 2021, the Commission wrote to the parties to inform them that the application for dismissal made by the AI Group would be listed for oral hearing before the Full Bench on 31 March 2021. The parties were also informed that there would be no requirement for them to file written submissions ahead of the hearing. Notwithstanding this, on 29 March 2021, AI Group filed written submissions in support of their application for dismissal.

[6] Given what has been outlined above, this decision will deal only with the AI Group’s application for dismissal. For the reasons that follow, we dismiss the application for dismissal.

AI Group submissions

[7] The AI Group submits that APESMA’s application should be barred on the grounds that it would constitute an abuse of process. 1 It contends that, despite the Application being made outside of the 4 yearly review of modern awards, many of the arguments advanced in the Application and the variations proposed are similar to those which were recently heard and considered in the context of the 4 yearly review.2 The AI Group further contends that if the Application is allowed to proceed it would waste the Commission’s resources and inflict unfairness and injustice upon employers and their representatives whose resources are already being stretched by matters currently before the Commission and who devoted resources to opposing APESMA’s claim in the 4 yearly review.3

[8] The AI Group further submits that the principles of estoppel should guide the Commission in refusing to entertain the Application. 4 The AI Group contends that APESMA’s claim is one to which Anshun estoppel applies as it is a claim that could and should have been made in earlier proceedings but was not.5

[9] In summary, the AI Group contends that the Application brought by APESMA advances many of the arguments made in the 4 yearly review of the Award and that by the principles of estoppel and the doctrine of abuse of process, the Commission should not entertain APESMA’s claim.

ABI and NSWBC submissions

[10] ABI and NSWBC advised the Commission that their position had not changed in that they neither support nor oppose the AI Group submissions.

Consideration

[11] As noted above, the AI Group contends that many of the arguments and proposals made in the Application are similar to those which were heard and considered in the 4 yearly review. The decision related to the review was handed down on 3 December 2018(the 2018 Decision). 6 In relation to translators and interpreters, the Full Bench in the 2018 Decision made the following relevant findings:

“146] 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.

[147] We note that Schedule B Classification Definitions of the HPSS Award contains Interpreter (unqualified) in Support Services Employee - level 5 and Interpreter (qualified) in Support Services Employee - level 7. We consider that it is clear that by virtue of clause 4 of the HPSS Award, it currently covers interpreters when they are employed by an employer in the health industry.

[148] Another eight modern awards make a reference to the occupation or activity of interpreter either as a classification or in relation to the employee’s entitlement to an allowance.

[149] 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.”

(emphasis added)

[12] As was stated at the commencement of the matter, and as can be seen from the extracts of the 2018 Decision above, the issue of whether there should be award coverage for translators and interpreters was referred to the President. Subsequently, the Application made by APESMA was drawn to the attention of the President. The President did not refer the matter of award coverage for translators and interpreters to another Bench. As such, that matter remains before this Bench (being a reconstitution of the Full Bench that issued the 2018 Decision).

[13] In our view, it cannot be said that the Application currently before us is an abuse of process. There may be circumstances, and this is not one of them, that the Commission might form the view that a matter has fallen into the category where it has been relitigated and will amount to an abuse of process. In those circumstances, it might be argued that there is Anshun estoppel.

[14] However, in this case, a fair reading of paragraphs [146] – [149] of the 2018 Decision does not lead to the conclusion that the Full Bench made a definite decision about whether there should be occupational coverage in the Award for translators and interpreters. That issue was not determined to finality. To the contrary, the matter was referred onwards for further consideration.

[15] Additionally, as was stated in the hearing, the state of the evidence was as at 2017 and as such may have changed since then. It remains for the Applicant, on an evidentiary case, to persuade the Bench that the variation is justified.

Conclusion

[16] For the above reasons, we dismiss the AI Group’s application for dismissal.

[17] Accordingly, the matter will be relisted for directions at 1pm (AEST) on Friday 23 April 2021.

VICE PRESIDENT

Appearances:

Mr H Harrington for the Australian Industry Group

Ms M Anthony for the Association of Professional Engineers Scientists Managers Australia t/a Professionals Australia

Ms K Thomson for the Australian Business Industrial and NSW Business Chamber

Hearing details:

2021.

Telephone Hearing.

31 March.

<MA000027  PR728654>

 1   AI Group Submission dated 29 March 2019 at para 3.

 2   Ibid at para 3.

 3   Ibid at para 17.

 4   Ibid at para 18.

 5   Ibid at para 20.

 6   See 4 yearly review of modern awards – Health Professionals and Support Services Award 2010 [2018] FWCFB 7350.