National system employer excluded by state legislation

Cases

National system employer excluded by state legislation

An employer has been excluded from the federal workplace relations system despite being found to be a national system employer by the FWC. The existence of state legislation was directly relevant.

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An employer has been excluded from the federal workplace relations system despite being found to be a national system employer by the Fair Work Commission (FWC). The existence of state legislation was directly relevant.
 

Relevant questions

The first question, on appeal, that the Full Bench of the FWC had to determine was whether the employer, the Australian Health Practitioners Regulation Agency, was a national system employer. The relevant federal legislation impacting on this case was ss30D30N and 604 of the Fair Work Act 2009.
 
The second question was whether relevant state legislation nevertheless excluded the employer from the federal system?
 
Original decision
 
The original decision of the FWC was that the employer was a national system employer, within the extended definition, and was thus entitled to make an application for a bargaining dispute.
 
The respondent-employer submitted that no appeal was available against this decision as it arose from private arbitration by agreement of the parties.
 
The application was premised on the preliminary question of whether the employer was a national system employer being answered in affirmative as such application could not be validly made unless applicant union was a bargaining representative. The Act provides that the employer bargaining representative must be national system employer.
The Full Bench of the FWC noted that the circumstances gave rise to important issue of the validity of the original application and the broader issue of the meaning of ‘national system employer’.
 
Appeal granted — employer excluded
 
The Full Bench agreed that the question of whether the respondent was a national system employer involved application of the terms of s14. The respondent-employer clearly fell within s14(1).

The central question was whether the respondent was specifically declared by, or under a, state law not to be national system employer and so excluded by s14(2).
 
State Act applies

The answer involved analysis of the Queensland Referral Act — the Fair Work (Commonwealth Powers) and Other Provisions Act 2009.
 
It was ultimately a question of whether the respondent fell within description of ‘an agency established under an Act for a public or State purpose’.
 
His Honour had initially concluded that the respondent was established for the Australian public purpose of regulating health professionals, not for a Queensland public purpose.
 
The Full Bench noted that the administration of a national scheme in each state fulfilled the state purpose of regulation of health professionals — however, the provision of such regulation through a single entity did not deprive it of its constituent state purposes.
 
The Full Bench’s view that ‘public purpose’ and ‘State purpose’ must be construed as having different meanings meant that the interpretation of ‘public purpose’ intended by employer-respondent involved an impermissible reading down that deprived it of any meaning beyond the alternative of a State purpose. The respondent was a public sector employer under the Queensland Referral Act because it was an agency established for a public purpose.
 
It was held that his Honour erred in concluding the Queensland Referral Act did not exclude the respondent. The second element of s14(2) was satisfied. The appeal was allowed and the decision quashed.
 
The Full Bench concluded:
‘In our view the interpretation contended for by AHPRA involves interpreting the phrase “public purpose” in the same way as “State purpose”. In our view the two concepts are alternatives and must be construed as having different meanings. While there can be no doubt that the notion of a public purpose expressed in a Queensland Act must be interpreted in that context, we consider that the interpretation contended for by AHPRA involves an impermissible reading down of the phrase in a way that deprives it of any meaning beyond the alternative of a State purpose.

It could be argued that, notwithstanding its national operation, the State purpose of AHPRA in Queensland leads to the conclusion that AHPRA falls within the phrase “an agency established for a State purpose”. However it is not necessary to reach a concluded view on such an argument. In our view AHPRA is a public sector employer under the Queensland Referral Act because it is an agency established for a public purpose. Its responsibilities and powers derived from legislation in other States does not deprive it of that description — at least for the purposes of Queensland legislation.

It follows from our conclusions that his Honour erred in concluding that the Queensland referral Act did not exclude AHPRA …’
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