Application by Richmond Fellowship Tasmania Inc T/A Richmond Fellowship Tasmania

[2019] FWC 4269

[2019] FWC 4269

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Application by Richmond Fellowship Tasmania Inc T/A Richmond Fellowship Tasmania
(AG2018/5320)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 19 JUNE 2019

Application for approval of Richmond Fellowship Tasmania Inc. Enterprise Agreement 2018 – identity of applicable pre-modern award.

Introduction and background

[1] The Richmond Fellowship Tasmania Inc. (RFT) is a not for profit charity that has operated within the Tasmanian community since 1998. RFT has applied to the Fair Work Commission (Commission) for approval of the Richmond Fellowship Tasmania Inc. Enterprise Agreement 2018 (Agreement), which covers a range of classifications of its “social and community services” employees who work in one of more of RFT’s operations in Tasmania (Employees).

[2] There is no dispute that the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) is the relevant modern award which covers most of the Employees. However, there is a dispute between RFT and the Health Services Union, Tasmania Branch (HSU) as to which pre-modern award covered the Employees. This is relevant because paragraph [5.3] of the equal remuneration order (ERO) made by a Full Bench of the Commission in relation to the SCHADS Award provides: 1

“5.3 The employer must pay an employee no less than either:

the minimum wage for the relevant classification in the [SCHADS] Award, or

the minimum wage in the relevant transitional minimum wage instrument and/or award-based transitional instrument for the classification concerned

whichever is higher.”

[3] A term of a modern award or enterprise agreement has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an equal remuneration order that applies to the employee. 2

[4] RFT contends that the Disability Service Providers Award (Tasmania) (DSP Award) is the relevant pre-modern award, whereas the HSU contends that the Community Services Award (Tasmania) (CS Award) is the relevant pre-modern award. If RFT is correct, then the rates of pay under the Agreement will meet or exceed the rates of pay under the SCHADS Award and the DSP Award. If the HSU is correct, then at least some of the rates of pay under the Agreement will fall below the rates of pay under the CS Award, and thereby contravene paragraph [5.3] of the ERO. If the RFT is unsuccessful in relation to its argument concerning the correct pre-modern award, it seeks an opportunity to give further undertakings to increase the rates of pay for relevant Employees, so as to satisfy the better off overall test (BOOT).

Coverage of the Agreement

[5] Clause 3 of the Agreement deals with its coverage:

“This Agreement covers:

(a) RFT; and

(b) Employees of RFT performing work of a nature prescribed in Appendix 2 – Employee classification structure in one or more of the Employer’s operations in Tasmania.

This Agreement does not cover or apply to:

(c) The Chief Executive Officer, Executive Team members Managers and Clinical Services Team; or

(d) Any other manager the nature of whose work is not prescribed in Appendix 2 – Employee classification structure.”

[6] The classifications in Appendix 2 of the Agreement range from Social and Community Services Employee Level 1 to Social and Community Services Employee Level 8. A Social and Community Services Employee Level 8 employee is quite senior, “will exercise managerial responsibility for the organisation’s relevant activity” and may “operate as a senior specialist providing multi-functional advice to either various departments or directly to the organisation”. A Social and Community Services Employee Level 8 employee has “substantial post graduate experience” and their qualifications are “generally beyond those normally acquired through a degree course and experience in the field of specialist expertise”.

Award coverage of the DSP Award and CS Award

[7] The correct approach to determining award coverage under an “industry” pre-modern award in Tasmania is found in NGT Pty Ltd v NUW, 3 in which a Full Bench of the Tasmanian Industrial Commission found that a Commissioner at first instance had erred by concluding that an industry award covers an employer where that employer employs persons who perform work as specified in an award classification.4 The Full Bench stated:5

“The correct test is an assessment of the character of the employer’s business. The work performed by employees only becomes relevant if the nature of the employer’s business fits within the scope clause. We agree with the observation of the TCCI that it is a “cart before the horse” approach to determine the work of the employee before first determining the industry of the employer.”

[8] In elucidating this correct approach, the Full Bench did, however, accept the Commissioner’s observation that it is possible for an employer to be engaged in a number of industries. 6 Indeed, there have been numerous decisions made by the Tasmanian Industrial Commission in which more than one industry award was found to cover an employer engaged in a number of industries.7

[9] As to whether an employer operates in an industry within the scope of a particular award, it is necessary to discern the objective meaning of the words used in the scope provision, bearing in mind the context in which they appear and the purpose they are intended to serve. 8

[10] Relevantly, the scope of the DSP Award and CS Award are as follows:

Community Services Award

“3. SCOPE

(a) This award is established in respect of the industry of social and community services, in which the primary functions/industrial pursuits include:

(i) social support and/or the enhancement of social functioning of the individual, family or community;

(ii) community development;

(iii) social policy research, development and advocacy;

(iv) program establishment, development co-ordination, management support for the above services;

(v) disability services which are demonstrably social welfare in nature …;

(vi) providing personal care for persons who have an intellectual, physical, psychiatric, and/or sensory disability in locations other than those covered by the Disability Service Providers Award and the Nursing Homes Award.

(b) This award shall not have incidence on the following services and/or occupations:

(i) the industry of providing residential care and/or employment and related activities for persons who are intellectually, physically, psychiatric, and/or sensory disabled in homes or institutions established for that purpose;

(ii) the industry of Nursing Homes licensed as such under the Hospitals Act 1918;

…

(iv) the occupations of cleaner, groundkeeper, caretakers, domestic workers, cook, laundry hand, clerk, driver, shop assistant or registered or enrolled nurse however so titled.”

Disability Service Providers Award

“3. SCOPE

This award is established in respect of the industry of providing residential care and employment and related activities for persons who have intellectual physical, psychiatric and/or sensory disabilities in homes or institutions established for that purpose.”

[11] A helpful analysis of the differences between the scope of the CS Award and the DSP Award was conducted by the Tasmanian Industrial Commission in Health Services Union of Australia, Tasmania No 1 Branch v D G Lewis Pty Ltd 9as follows (references omitted):10

“[19] It is clear that both awards cover discrete sections of the industry of providing personal care for persons “who have intellectual, physical, psychiatric and/or sensory disabilities”.

[20] How then are the awards distinguished?

[21] It is clear from an examination of both Awards that the CSA has “catch all” application unless specifically covered by either the DSPA or the Nursing Homes Award (not relevant to current application).

[22] To be covered by the DSPA the residential care must be provided “in homes or institutions established for that purpose.”

[23] The CSA was varied to reflect the current Scope clause in T6152 of 1996. In proceedings before Robinson DP, Mr Brown for HSUA said:

“Mr Deputy President, the HSUA sought this hearing under section 23[1] of the Industrial Relations Act 1984 and the application seeks to vary clause 2 Scope of the Community Services Award to include coverage of employees undertaking personal care work in non-institutional settings”.

[24] The question to be determined is whether the location where Mr Jeffries was employed was a “home or institution established for that (providing personal care) purpose”.

[25] I think not. The only information before the Commission is that the work was performed in the private home of Mr D G Lewis, the consumer of the services and a director of the company. There is nothing before the Commission which would lead to a conclusion that the work was performed in a home specifically established for the purpose of providing residential care.”

[12] This decision was upheld by a Full Bench of the Tasmanian Industrial Commission on appeal. 11

Interpretation of “disability” in CS Award and DSP Award

[13] The scope of both the DSP Award and CS Award include the provision of “personal care for persons who have an intellectual, physical, psychiatric, and/or sensory disability”. Neither award defines a “disability”. RFT contends that the word “disability” where used in the scope of the DSP Award and CS Award has its ordinary meaning. The HSU contends that the word “disability” where used in the scope of the DSP Award and CS Award was (and is) understood, in the disability services industry in Tasmania, by the term defined in the governing legislation - the Disability Services Act 2011 (Tasmania) (DS Act). “Disability” is defined in section 4 of the DS Act as follows:

“disability, in relation to a person, means a disability of the person which –

(a) is attributable to a cognitive, intellectual, psychiatric, sensory or physical impairment or a combination of those impairments; and

(b) is permanent or likely to be permanent; and

(c) results in –

(i) a substantial restriction in the capacity of the person to carry on a profession, business or occupation, or to participate in social or cultural life; and

(ii) the need for continuing significant support services; and

(d) may or may not be of a chronic episodic nature”.

[14] The objects of the DS Act are stated in section 3 to be as follows:

“The objects of this Act are –

(a) to provide for the funding of –

(i) the provision of specialist disability services and certain other goods or services; and

(ii) research or development activities; and

(b) to provide for the effective planning, prioritisation and scrutiny of the provision of specialist disability services and grants under this Act; and

(c) to set out principles that are to be applied in relation to the performance or exercise of functions or powers under this Act and in relation to certain activities to which this Act relates; and

(d) to enable the setting of standards that are to be met by funded disability services providers in providing, or ensuring the provision of, specialist disability services; and

(e) to ensure that funded disability services providers provide, or ensure the provision of, specialist disability services in a manner that meets those standards; and

(f) to regulate the use of restrictive interventions by disability services providers and funded private persons.”

[15] Section 13 of the DS Act, permits the secretary of the relevant department to provide assistance with respect to the provision of specialist disability services to a person with a disability. In providing assistance to a person with disability, the secretary may provide specialist disability services indirectly to the person through disability service providers or directly to the person, or take the necessary action to encourage persons and organisations to provide specialist disability services to persons with a disability who require the services. A disability service provider is defined in section 4 of the DS Act to mean a person or organisation that provides specialist disability services other than a relative or friend of a person with a disability. A specialist disability service is defined in section 4 of the DS Act to mean a service specifically for, or related to, the support of persons with disability, including without limitation accommodation support services, home care and family support services, and in-home community-based services.

[16] Pursuant to section 15 of the DS Act, a person or organisation may enter into a funding agreement with the secretary of the relevant department in relation to a grant to the person or organisation for the purposes of enabling the person or organisation to provide specialist disability services.

[17] The DS Act received Royal Assent on 21 September 2011. The DS Act repealed the Disability Services Act 1992 (Tasmania) (1992 Act), which defined “disability” in a similar way to the DS Act, namely:

“‘disability’ means a disability –

(a) which is attributable to an intellectual, psychiatric, sensory or physical impairment or combination of those impairments; and

(b) which is permanent or likely to be permanent; and

(c) which results in –

1. a substantially reduced capacity for communication, learning or mobility; and

2. the need for continuing support services; and

(d) which may or may not be of a chronic episodic nature.”

[18] As is the case under the DS Act, the 1992 Act permitted the secretary of the relevant department to (a) provide services to any person with a disability directly or indirectly, (b) take action to encourage persons and organisations to provide services to persons with a disability and (c) enter into a funding agreement with an organisation for the organisation to provide services to persons with a disability.

[19] The DS Act and, prior to 21 September 2011, the 1992 Act, focus to a significant extent on the provision of services, together with funding for such services, to persons with a disability as defined in those statutes. They do not seek to regulate the provision of services to a person who satisfies the ordinary meaning of disability, but not the special (and more restricted meaning) given to the word “disability” in those statutes.

[20] Both the DSP Award and CS Award contain detailed definition provisions. Further, both the DSP Award and the CS Award refer in numerous places to state and federal legislation to explain or define various concepts. 12 At a general level, these contextual features of both awards suggest that where the framers of the award intended for a particular word or expression to have a special meaning, as distinct from its ordinary meaning, they either included a definition of the word or expression as an express term of the award or incorporated by reference the definition from a particular statute. The fact that the word “disability” is not defined by either of these methods in the DSP Award or CS Award tells in favour of giving the word its ordinary meaning.

[21] Further, both the DSP Award and CS Award permit employers to engage employees at a supported wage rate if the employees “meet the impairment criteria for receipt of a Disability Support Pension and who, because of their disability, are unable to perform the range of duties to the competence level normally required for the class of work for which they are engaged”. 13 Both awards provide that this arrangement “does not apply to employers in respect of their facility, program, undertaking, service or the like which receives funding under the Disability Services Act 1986 [Cth]…”14 The term “Disability Support Pension” is defined in each award to mean the pension available under the Commonwealth pension scheme to provide income security for persons with a disability as provided under the Social Security Act 1991 [Cth], as amended from time to time, or any successor to that scheme”.15 The fact that the concept of “disability” in the context of a “disability support pension” is dealt with in both the DSP Award and CS Award by direct reference to other statutes is telling. It is in stark contrast to the way both awards deal with the concept of “disability” in their scope provisions, namely without reference to any other statute. If, as the HSU contends, there was an objective intention for the word “disability” in the scope provision of the DSP Award and CS Award to mean “disability” as defined in the DS Act or the 1992 Act, it could reasonably be expected that such a reference would have been included in the scope provision of each award.

[22] In addition, clause 3(a) of the CS Award defines its scope by reference to the “industry of social and community services” and then (at clause 3(b)) carves out of its scope various services and occupations:

“(b) This award shall not have incidence on the following services and/or occupations:

(i) the industry of providing residential care and/or employment and related activities for persons who are intellectually, physically, psychiatric, and/or sensory disabled in homes or institutions established for that purpose;

(ii) industry of Nursing Homes licensed as such under the Hospitals Act 1918…”

[23] Contextually, it is significant that clause 3(b)(ii) of the CS Award makes specific reference to particular legislation to define the extent of the carve out from the “industry of social and community services”, whereas clause 3(b)(i), which deals with the provision of care to persons with a “disability”, does not. Had the framers of the CS Award objectively intended for the word “disability” in clause 3 to have a meaning defined by a particular statute, it could reasonably be expected that such a reference would have been included in clause 3(b)(i).

[24] These contextual considerations become even stronger when regard is had to the fact that “there is no single definition of disability”. 16 The definition of “disability”, or the question of whether particular persons with a disability are entitled to access a particular service or benefit, is determined by the purpose, text and context of the relevant instrument. For example, the word “disability” is not defined in the legislation which governs access to the National Disability Insurance Scheme (NDIS); the NDIS is intended to cover a subset of those affected by disability, namely persons with significant and permanent disabilities.17 To that end, the legislation which governs the NDIS limits access to the scheme to people with a disability who meet the access criteria.18

[25] Some statutes such as the DS Act and the 1992 Act define “disability” in a narrow way, including by requiring the disability to be “permanent or likely to be permanent”. This is understandable in circumstances where one of the functions of the statute is to limit access to government funding to providers of specialist disability services to a particular class of persons. Other statutes such as the Disability Discrimination Act1992 (Cth) define “disability” in a broad way to include a disability that “presently exists or previously existed but no longer exists”. 19 This is not surprising given the objective of the statute to prevent discrimination against persons with a disability.

[26] If a term is used in different statutes in different contexts, then the definition of that term in one statute is unlikely to assist in interpreting that term in the other. 20 This principle was applied in Hodkinson v The Commonwealth,21 where it was held (at [145]) that the word “disability” was defined in the Disability Discrimination Act1992 (Cth) to reflect the objects of that statute, whereas there was nothing about the way the word “disability” was used in section 351(1) of the Act to suggest that it should be understood other than according to its ordinary meaning or that it should have the particular meaning given to it in the Disability Discrimination Act1992 (Cth).

[27] In my view, the text, context and purpose of the DSP Award and CS Award do not suggest an objective intention to limit the meaning of “disability” in the scope of those awards in a particular way or by reference to the DS Act or the 1992 Act. For the reasons given, I am of the opinion that the word “disability”, where used in the scope provision of the DSP Award and CS Award, should be given its ordinary meaning, namely “a particular physical or mental weakness or incapacity and to include a condition which limits a person’s movements, activities or senses”. 22

Historical understandings

[28] It is not in dispute that in the past RFT believed that its employees were covered by the CS Award, informed its employees that they were covered by the CS Award, and acted in a manner consistent with that belief. However, in more recent times RFT has obtained advice and come to the view that its employees were, prior to the commencement of the SCHADS Award, covered by the DSP Award. The enterprise agreement which currently applies to RFT and its employees was put together on that basis.

[29] Award coverage is not determined by reference to the subjective understanding of an employer or one or more employees. The test, as set out above, is objective. 23 Accordingly, in determining the correct pre-modern award(s) for RFT and the Employees, I will not have regard to the current or previous subjective belief or understanding of RFT or any of its employees in relation to those matters, nor will I give any weight to previous communications or conduct by RFT in relation to the coverage or otherwise of particular awards.

RFT’s operations

[30] Elly Jansen began the Richmond Fellowship model in England in 1959. The model aims to reintegrate people with mental ill health into the community despite long periods of time in a hospital or other institution. RFT applies the Richmond Fellowship model in Tasmania.

[31] RFT describes itself in the following way in the position descriptions given to its employees:

“RFT is a globally affiliated, not for profit organisation providing residential, allied support services and social inclusion programs across Tasmania for people with severe and recurrent mental illness.”

[32] The evidence given by RFT’s witnesses as to its activities was consistent with this description.

[33] RFT is primarily funded through the Alcohol and Mental Health Directorate with the Department of Health and Human Services Tasmania. RFT provides the following services and programs in Tasmania;

(a) Residential recovery program - this is RFT’s core business. About two thirds of RFT’s employees work in its residential recovery program. RFT operates three sites in Hobart, one in Launceston, and one in Ulverstone. Each site has between seven and fifteen residents. At these sites, RFT provides a state funded program for people suffering from severe and persistent mental illnesses, including schizophrenia, bi-polar and borderline personality disorder. RFT’s sites are staffed 24 hours a day, seven days a week. The recovery programs are staffed by a Team Leader, Key Workers (holding a case load between five and eight residents) and Support Workers (primarily working shift work), all of whom hold a minimum Certificate IV in Mental Health, as well as significant industry experience. The residents live at the sites on a full-time basis. Some residents recover sufficiently from their mental illness to be able to leave RFT’s sites within two years and move back to living within the community, while many other residents either remain living at an RFT site for many more years or move on to other supported accommodation or within the community with significant ongoing support from the NDIS or Adult Mental Health Services. The evidence revealed that some residents continue living in RFT’s sites and participate in the recovery program for more than 10 years;

(b) Mental health nurse program – RFT employs the equivalent of 3.5 full-time nurses who provide support to the general community based on referrals from general practitioners. RFT’s nurses work Monday to Friday in business hours and undertake their consultations from RFT’s south Hobart offices, in client homes or general practitioners’ offices;

(c) Respite services – Respite undertakes work with people with psychiatric disabilities that are living in a supported environment. As part of this service, RFT provides a two-bedroom unit where no more than two mental health consumers can reside. This service accepts referrals from the Tasmanian Government’s Tolosa Street Clinic and will only accept consumers who are stable on their medication, have not recently undertaken electromagnetic convulsive therapy, and are able to be alone overnight. RFT’s two-bedroom unit is staffed between the hours of 7am and 10pm, with on-call only available overnight;

(d) Clinical services – RFT does not currently employ any clinical services employees, but is currently engaging with the Tasmanian Government to second one of their Occupational Therapists to project manage a tender RFT was recently awarded by Sports Australia;

(e) Connect-In centre – RFT operates a drop-in centre in Hobart for homeless people. From Monday to Thursday between 10am and 2pm, homeless people can attend the centre and access a hot lunch, shower and bathroom facilities, internet and printing facilities, and other similar services. RFT’s connect-in centre is free to access and is staffed by RFT’s connect-in co-ordinator;

(f) Recreation program – this skills-based program runs across Tasmania. RFT employs Support Workers, usually on a casual basis, to work in this program, which runs in business hours on weekdays;

(g) Outreach program – this program runs within the north west of Tasmania and is based out of RFT’s Ulverstone residential site. RFT currently has the equivalent of 1.6 full-time employees working in this program, delivering services to people living within the community, acting as an early intervention for mental health support. RFT is contracted to provide support to 27 participants at a time. RFT’s Key Workers who work in this program hold caseloads between 15-20 per 1 full-time employee; and

(h) Partners in recovery – RFT will cease operation of this program on 30 June 2019. This program provides eligibility support for people wishing to test their eligibility within the NDIS, while also providing some support to people before they become eligible for the NDIS.

[34] RFT currently employs about 87 employees across Tasmania. The employees are divided into the following work areas:

Program/Function	Number of employees (headcount)
Residential recovery	54
Corporate services	11
Recreation program	8
Mental health nurse program	4
Partners in recovery	5
Respite	2
Outreach	2
Connect-In	1

Conclusion re pre-modern award coverage

Residential recovery program

[35] Having regard to the fact that the residents who live in RFT’s sites and participate in its residential recovery program suffer, and are attempting to recover, from severe and persistent mental illnesses, I am satisfied that they have a psychiatric disability within the meaning of the DSP Award and the CS Award, in that they have a mental weakness or incapacity which may include a condition which limits their movements, activities or senses. Further, there is no doubt that RFT provides residential care to the participants of its residential recovery program.

[36] There is a dispute about whether the sites RFT uses as residences for the participants of its residential recovery program are “homes or institutions established for that purpose” within the meaning of clause 3 of the DSP Award. RFT submits that its sites were established for the requisite purpose. The HSU contends they were not, and submits that RFT’s sites were established for the purpose of providing treatment and recovery to residents.

[37] The evidence demonstrates that when RFT originated in Tasmania, it was funded by the Tasmanian Government to operate one residential property in Tasmania, in order to develop a step-down type residential care service to transition people with severe and persistent mental illness from the Department of Psychiatry and other state funded facilities to living within the community. Other such sites were later established by RFT, with the result that it now has five sites providing residential care in Tasmania for persons with severe and persistent mental illnesses. The residents at those sites are, and have been since the sites were established, provided with residential care, together with related services aimed at treatment and recovery. In all the circumstances, I am satisfied that the sites RFT uses in Tasmania to house and provide residential care to participants of its residential recovery program were established for the purpose of providing “residential care and employment and related activities for persons who have intellectual physical, psychiatric and/or sensory disabilities”.

[38] For the reasons given, I am satisfied that RFT’s residential recovery program operates in the industry identified in clause 3 of the DSP Award. By reason of clause 3(b)(i) of the CS Award, it follows that the CS Award does not have “incidence… on services and/or occupations” within that industry.

[39] I am also satisfied on the evidence that RFT’s employees who work in its residential recovery program are covered by the classifications set out in clause 4 of the DSP Award.

[40] Accordingly, the relevant pre-modern award for RFT’s employees who work in its residential recovery program is the DSP Award.

RFT’s other services

[41] The fact that RFT’s residential recovery program operates in the industry identified in clause 3 of the DSP Award is not determinative of the pre-modern award coverage of employees who work in the other parts of RFT’s business. As stated above, it is possible for an employer to be engaged in a number of industries.

[42] RFT submits that the reference to “related activities” in clause 3 of the DSP Award is sufficiently broad to include RFT’s services or programs other than its residential recovery program. I reject that contention. The expression “related activities” needs to be construed in context. Read as a whole, it is plain from clause 3 of the DSP Award that the “related activities” must be (a) for persons who have a relevant disability and (b) provided “in homes or institutions established” for the requisite purpose. Similarly, the “residential care” referred to in clause 3 of the DSP Award must be provided “in homes or institutions established for that purpose”. 24 The evidence adduced in this case does not support a finding that RFT’s services or programs (other than its residential recovery program) provide residential care, employment or related activities to persons “in homes or institutions established for that purpose”. Accordingly, those parts of RFT’s business do not fall within the scope of the industry identified in clause 3 of the DSP Award. It follows that the relevant pre-modern award for RFT’s employees who work in its services or programs other than its residential recovery program is not the DSP Award.

[43] I am satisfied on the evidence that RFT’s services and programs other than its residential recovery program operate in the “industry of social and community services” within the meaning of clause 3(a) of the CS Award and that the “primary functions/industrial pursuits” of those services and programs meet one or more the following parts of clause 3(a):

“(i) social support and/or the enhancement of social functioning of the individual, family or community;

(ii) community development;

…

(iv) program establishment, development co-ordination, management support for the above services;

(v) disability services which are demonstrably social welfare in nature ….;

(vi) providing personal care for persons who have an intellectual, physical, psychiatric, and/or sensory disability in locations other than those covered by the Disability Service Providers Award and the Nursing Homes Award.”

[44] I am also satisfied on the evidence that RFT’s employees who work in its services and programs other than its residential recovery program are covered by the classifications set out in clause 3 of the CS Award, save for nurses, who are excluded from coverage of the CS Award 25 and are covered by the Nurses Award 2010.

[45] Accordingly, the relevant pre-modern award for RFT’s employees (save for nurses) who work in its services and programs other than its residential recovery program is the CS Award. RFT acknowledges that the rate of pay set out in the Agreement for at least some of those employees is less than the comparable rate of pay in the CS Award. Accordingly and acceding to RFT’s request, I make the directions below to provide RFT with an opportunity to give undertakings to address that issue.

Directions

[46] RFT is directed to file and serve any further or revised undertakings it wishes to rely on in support of its application for approval of the Agreement by 4pm on 26 June 2019.

[47] By 4pm on 3 July 2019, the HSU is directed to file and serve any submissions it wishes to make in relation to any further or revised undertakings given by RFT.

[48] The matter is listed for a conference, by telephone, before Deputy President Saunders at 10am AEST on 5 July 2019.

DEPUTY PRESIDENT

Appearances:

S Masters, solicitor, for the applicant

J Eddington, Legal and Industrial Officer,on behalf of the HSU

Hearing details:

2019.

Hobart:

30 May.

Printed by authority of the Commonwealth Government Printer

<PR709517>

 1   PR525485

 2   Section 306 of the Act

 3   (2002) T10317

 4   Ibid at [30]-[31]

 5   Ibid at [31]

 6   Ibid at [30]

 7   See also, for example, Application by the Police Citizens Youth Club Launceston (Inc.) (1997) T7291

 8   TWU v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 at [22]; applied in Mitolo Group Pty Ltd v NUW [2015] FWCFC 2524 at [42]-[43]

 9   (2006) T12613

 10   Ibid at [19]-[25]

 11   D G Lewis Pty Ltd v Health Services Union of Australia, Tasmania No 1 Branch (2007) T12891

 12   See, for example, part IV, clause 4 and part VIII, clauses 2 and 3 of the DSP Award and

 13   Clause 2(a) of the CS Award and clause 3(a) of the DSP Award

 14   Ibid

 15   Clause 2(b) of the CS Award and clause 3(b) of the DSP Award

 16   Mulligan and National Disability Insurance Agency [2015] AATA 974 at [39]

 17   Ibid at [39]-[40]

 18   Ibid at [47]-[51]

 19 Section 4 of the Disability Discrimination Act 1992 (Cth)

 20   M Collins & Son Ltd v Bankstown Municipal Council (1958) 3 LGRA 216 per Sugarman J at 220

 21 (2011) 207 IR 129

 22   Ibid at [146]; applied in RailPro Services Pty Ltd v Flavel[2015] FCA 504 per Perry J at [123]

 23   TWU v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 at [22]; applied in Mitolo Group Pty Ltd v NUW [2015] FWCFC 2524 at [42]-[43]

 24   See paragraph [10] above

 25   Clause 3(b)(iv) of the CS Award