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Full Bench Gives a Lesson about Award Interpretation

Posted on by Charles Lentini

It is quite common for employers to have difficulty determining modern award coverage. A Full Bench of the Fair Work Commission (‘FWC’) has recently provided assistance by summarizing the relevant industrial principles and applying these to a modern award.

On 21 February 2019, Commissioner Bissett of the FWC issued the decision of Dr Vahid Sedighi Gourabi v Westgate Medical Centre [2019] FWC 1155. This decision was reported in a Livingstones & SHR Group March update titled “No Award or Unfair Dismissal Rights for Private Practice GPs.” The FWC decided that a General Practitioner working at a private medical centre was not covered by the Medial Practitioners Award 2010 (‘medical award’) and did not have unfair dismissal rights.

Since this time, Dr Gourabi lodged an appeal with a Full Bench of the FWC. While the Full Bench rejected the appeal and affirmed the decision of Commissioner Bissett, the Full Bench provided some practical advice about award interpretation (Vahid Sedighi Gourabi v Westgate Medical Centre [2019] FWCFB 3874).

The Full Bench referred to a number of principles to be applied when interpreting a modern award. It noted each modern award has a “coverage” clause that determines “the employers, employees, organisations and outworker entities” covered by the modern award.

Two considerations were noted as usually being required to determine whether particular employment falls within the “coverage” clause of a modern award. The first is a legal question concerning the proper construction of the coverage clause as well as other provisions of the modern award. The second question is a factual question concerning whether the employer and employee fall within the scope of the coverage clause. The Full Bench noted the modern award needed to be properly construed.

The Full Bench then referred to the decision of Rangiah J in Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3) [2019] FCA 37 at [52] which recently summarised principles of award construction. It said the task of construction commences with the “natural and ordinary meaning of the words used.” However, an award must also be “interpreted in light of its industrial context and purpose and its commercial and legislative context.” In terms of context this “includes the immediate textual context and the historical context of the origin of the provision in question.”

Turning to the medical award the Full Bench rejected Dr Gourabi’s argument that the expression “medical practitioners” in clause 4.1 of the coverage clause should be given its ordinary meaning. The Full Bench noted the definition of “medical practitioner” in clause 3.1 makes it clear that the ordinary meaning does not apply and the term should instead be given a special and narrower definition. This definition confines the expression to those medical practitioners listed in specific workplaces and this does not include general practice clinics or medical centres.

The Full Bench also rejected the argument that terms such as “community health centres” and “day procedure centres” could be interpreted by aggregating the ordinary meaning of the individual words. In other words, the individual words could not be interpreted separately. The Full Bench noted these terms are composite expressions that had well understood meanings in the health industry.

For instance, the expression “community health centre” is ordinarily understood as referring to a “publicly funded facility intended to provide health services and information to groups in the community who have been identified to be vulnerable to poor health outcomes.” The expression “day procedure centre” is a “medical facility which, as its designation indicates, has as its sole or primary purpose the performance of surgical and other medical procedures involving the patient being admitted and discharged the same day.” The Full Bench noted that just because the title is not capitalised does not make any difference.

The Full Bench then examined the historical development of the coverage provision and definition of “medical practitioner” in the medical award and found there was a clear intention to limit the coverage of medical practitioners and exclude those working in private practice. In total, Dr Gourabi’s notice of appeal contained 20 grounds of appeal regarding various aspects of Commissioner Bissett’s decision and all of these were rejected by the Full Bench.

The determination of modern award coverage is sometimes a difficult task for employers. This Full Bench decision summarizes the relevant industrial principles and then applies these to a modern award. If you would like to know more about the implications of this decision, please contact a Livingstones & SHR Group consultant on +61 7 3833 1200.

 

Written by Charles Lentini

Charles Lentini

Charles combines his passion for delivering successful outcomes with his extensive experience in both the public and private sector to provide tailored and practical Industrial Relations solutions. He has a calm, methodical and diligent approach to solving complex issues which allows him to analyse each issue logically and instill confidence in his clients.

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