ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with an alleged dispute under The UPA NSWNMA and HSU NSW Enterprise Agreement 2014-2017 – applicant assisted by her husband, Mr Grabovsky – UPA is a not for profit operator of residential aged care facilities – between 30 March 2004 and 20 December 2017 the applicant was a part-time care service employee at a UPA facility in NSW – the applicant was classified as Grade II with a Certificate III in Care Support Services – for the last four years of her employment (since 27 August 2013) the applicant was absent from work – on 20 December 2017 (the same date that the present application was filed) the applicant received a letter of termination, dated 14 December 2017, advising that her employment had been terminated – the applicant contended this dispute was about the ‘severe workload’ UPA ‘recklessly imposed’ upon the applicant ‘disregarding the applicant’s health and wellbeing in favour of profit’ – also that the applicant ‘was grossly underpaid’ and that as a result of the ‘severe workload’ the applicant was injured in her employment, resulting in disability – Commission had regard to all of the material put before it – present dispute is one of a number of proceedings that the applicant has commenced against or involving UPA – 16 other applications between 5 March 2014 and 24 September 2018 – in the present matter UPA objected to the Commission exercising power on the ground that the 2014 Agreement does not provide the Commission with power to arbitrate with respect to workloads other than by agreement between the parties; and that UPA did not agree to the arbitration in respect of workload management – applicant asked that the Grievance and Dispute Resolution Procedures clause and the Workload Management clause be declared unlawful – the applicant’s husband, Mr Grabovsky, contended that the legal aspects of the current matter (C2017/7037) were ‘different to previous matters’ – rejected by Commission – claim for underpayment based on a classification dispute – held it was no different to the matter that was before Lawler VP (C2014/3313) – UPA made an application to dismiss the present proceedings, submitting ‘the Proceedings should be dismissed in accordance with the principles of res judicata or issue estoppel and otherwise represents an abuse of process’ – also made an application for an order for costs on the basis that the application (C2017/7037) has been commenced and maintained vexatiously or without reasonable cause – the principle of res judicata arises where a matter has already been decided and it is no longer subject to an appeal – it is intended to provide finality to proceedings so that the same issues are not continually re-litigated – the principle denies a reconsideration of a matter already decided and prevents the making of contradictory judgments, or multiple judgments about the same subject matter or legal issues – having regard to the principles of res judicata the Commission held it was not at large to make decisions that were inconsistent with, or repugnant to decisions and orders made in the same, or substantially the same, matter – Commission held that the question before it was the same as that decided by Booth DP [[2014] FWC 5634] – ‘Does the Commission have the power to arbitrate the workload issue in the absence of the agreement by UPA?’ – the answer then was ‘no’, the answer remains the same today – there cannot be a consideration of the ‘factual and legal dispute of the workload management application’ without the consent of UPA – UPA has not provided its consent – that is the end of the matter – permission to appeal the Booth DP decision was refused [[2014] FWCFB 7533] – Commission satisfied that the principles akin to res judicata ought to be applied and, consequently, the application in C2017/7037, in so far as it is based on a dispute about Workload Management, must be dismissed – application had no reasonable prospects of success – turning to the underpayment claim – Lawler VP found that the applicant’s duties could properly be characterised as involving the assistance and support of residents with medication utilising medication compliance aids, and therefore fell within the prescribed duties for the CSE Grade 2 classification [[2015] FWC 2504] – permission to appeal the Lawler VP decision was refused [[2015] FWCFB 3926] – Commission satisfied that the principles akin to res judicata ought to be applied and, consequently, the application in C2017/7037, in so far as it is based on a dispute about the applicant’s classification, must be dismissed – application had no reasonable prospects of success – as the Commission had decided that the application should be dismissed because it had no reasonable prospects of success it was not necessary to decide the application for interim orders made by Mr Grabovsky – for completeness, Commission observed that had it been required to decide the application for interim orders, the application would have been dismissed – remains outstanding to determine UPA’s application for costs against the applicant – Commission to defer doing so – expected that the applicant will appeal this decision – prudent to await the outcome of any appeal before dealing with the question of costs. Grabovsky v United Protestant Association of NSW Ltd t/t UPA
