Australian Red Cross Blood Service (a division of the Australian Red Cross Society)

[2015] FWCA 7914

[2015] FWCA 7914

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Red Cross Blood Service (a division of the Australian Red Cross Society)
(AG2015/3406)

AUSTRALIAN RED CROSS BLOOD SERVICE NURSING ENTERPRISE AGREEMENT VICTORIA 2015

Health and welfare services
COMMISSIONER CRIBB	MELBOURNE, 18 NOVEMBER 2015

Application for approval of the Australian Red Cross Blood Service Nursing Enterprise Agreement Victoria 2015.

[1] An application has been made for approval of an enterprise agreement known as the Australian Red Cross Blood Service Nursing Enterprise Agreement Victoria 2015 (the proposed Agreement, the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Red Cross Blood Service (a division of the Australian Red Cross Society). The agreement is a single-enterprise agreement.

[2] A Form F18 - Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement - has been lodged by the Australian Nursing and Midwifery Federation (the ANMF, the union) and also by the Health Services Union of Australia (HSU).

[3] In its Form F18, the ANMF objected to approval of the Agreement on the following grounds:

• the application is not valid as it was not made by an employer



• the application is not valid because the Agreement is not made with an employer



• clause 21 of the proposed Agreement contravenes the National Employment Standards (NES) (section 55 of the Act) as it does not include an applicable award - derived long service leave term in relation to the portability of long service leave which is conferred by section 113 of the Act and the Nurses (Victorian Health Services) Award 2000 (the Award).

[4] The HSU supports the ANMF’s objections and objects on the same grounds.

[5] Both the ANMF and the HSU have given notice, pursuant to section 183 of the Act, that each organisation wants to be covered by the agreement.

[6] The application for approval of the agreement was listed for hearing on Thursday 12 November 2015. The purpose of the hearing was to deal with the ANMF’s objections together with the substantive application. At the conclusion of the hearing, the Commission indicated that, given the effluxion of time, a decision in relation to the application together with brief written reasons, would be issued by Wednesday 17 November 2015. Fuller written reasons for the decision would be issued at a later date. As the Commission has been able to provide full reasons for its decision in this decision, it is not proposed to issue a further decision.

[7] I will deal with each of the ANMF’s objections in turn.

1. Neither the application, statutory declaration or the proposed Agreement is made by an employer

(a) ANMF

[8] The ANMF argued that the application is not made by an employer as the applicant (the Australian Red Cross Blood Service (a division of the Australian Red Cross Society)) has no legal existence and is not capable of being an employer. 1 It was stated that the identity of the employer is plainly wrong and that it is accepted by the parties that the legal entity (the employer) is the Australian Red Cross Society (the Society). The union indicated that the Society was incorporated by Royal Charter in 1942 and so has corporate status and is capable of being an employer. The Divisions of the Society, which include the Australian Red Cross Blood Service (the Blood Service), were said to have no independent legal existence from that of the Society. As the application was made by, and the proposed Agreement will apply to, the Australian Red Cross Blood Service (a division of the Australian Red Cross Society), it was argued that neither the application nor the proposed Agreement was made by/or is capable of being, the employer.2

[9] To remedy this situation, it was proposed by the ANMF that the Applicant seek to amend the application to reflect the legal name of the employer (the Australian Red Cross Society) and provide an undertaking that the definition of “Employer”, at clause 2.3 of the proposed Agreement, means the Australian Red Cross Society. 3

(b) Blood Service

(i) Application

[10] It was confirmed by the Blood Service that, in accordance with Mr Power’s evidence, the legal entity which employs staff is the Australian Red Cross Society. 4 The Blood Service explained that, organisationally, the Society has established a separate division which is organisationally distinct and which operates as the Australian Red Cross Blood Service. It was indicated that, under the rules of the Society, the Board of the Society can delegate the function of negotiating a new agreement to the Blood Service CEO and the Board (clauses 11.4, 19.1 and 19.8).5 The Blood Service submitted that judicial notice can be taken of the fact that running a division of an organisation includes entering into negotiations to settle the industrial instruments which will regulate the terms and conditions of the employees employed in that part of the organisation. It was stated that the application identifies the name of the Applicant as the Australian Red Cross Blood Service and specifies the legal name of the business as the Australian Red Cross Blood Service (a division of the Australian Red Cross Society).6

[11] The Employer’s Statutory Declaration (Form F17) also stated that the legal name of the employer as the Australian Red Cross Blood Service (a division of the Australian Red Cross Society) and the trading name was cited as the Australian Red Cross Blood Service. It was explained that the Society has registered trading name (Australian Red Cross Blood Service) and the Society has established an operating division within it which is not a separate legal entity (the Australian Red Cross Blood Service). 7

[12] Further, it was stated that the ABN cited in the application is the ABN of the Society. It was contended that the Blood Service is not a separate legal entity nor has it a separate ABN. Rather, it was about how the employer is described for the purpose of the Agreement. The Blood Service argued that the Agreement will only ever apply to the part of the business which is the Blood Service and that it would not have any application to the other division of the Society (the Humanitarian Division). 8

(ii) Proposed Agreement

[13] The Blood Service submitted that there is an employer contained in the proposed Agreement and that the employer is entitled to delegate functions to parts of its organisation eg. in relation to the negotiation of agreements. It was stated that this is what has happened here and that it was quite common for agreements to be negotiated that only applied to part of a business. The latter was said to be contemplated by the Act and that, where this occurs, the Commission has to be satisfied that the employees have been fairly chosen. No contrary argument was said to have been put in relation to this issue. 9

[14] In addition, the Blood Service stated that, in relation to both objections about the named entity, the proposed Agreement is consistent with numerous other enterprise agreements approved in respect of employees of the Blood Service. It was argued that the employer has been identified in the other agreements in the same manner as in this Agreement and that no issue has ever been raised about the description of the employer. 10 In describing the part of the business that the Agreement will apply to, the Blood Service contended that it makes reference to the trading name (Australian Red Cross Blood Service) and that no confusion has been created by doing it this way.11

[15] With respect to the ANMF’s proposal that the application and statutory declaration be amended and an undertaking provided, the Blood Service responded by stating that no undertaking will be given nor an application to amend will be made. This was because the employer has been appropriately identified in the documentation. 12

(iii) Considerations and conclusions

[16] The application for approval of an enterprise agreement filed by the Blood Service (Form F16) and the statutory declaration (Form F17) both state that the legal name of the business is the Australian Red Cross Blood Service (a division of the Australian Red Cross Society). The trading name of the business is specified in both documents as the Australian Red Cross Blood Society. The ABN cited is that of the Society. The Applicant, in the application for approval is specified as the Australian Red Cross Blood Service. Clause 2.3 of the proposed Agreement states that the “Employer” means the Australian Red Cross Blood Service (a division of the Australian Red Cross Society).

[17] The issue of the identity of the employer has been considered previously by the Commission, predominantly in the unfair dismissal part of the Commission’s jurisdiction. A Full Bench in Tobiahs Pty Ltd v Jessica Vidacic 13 was required to determine questions about the sufficiency of identification of an employer in an application for an unfair dismissal remedy. The Full Bench found that:

“In our view the naming of the respondent in the originating application by reference to its trading name rather than legal name did not deprive the Commissioner of jurisdiction to proceed with the arbitration hearing in the absence of the respondent. It is clear that in the ordinary courts of justice a misnaming of this sort will mean that there is no valid proceeding on foot against the correct legal entity. However, in our view, that position does not apply in relation to a tribunal such as Fair Work Australia that is not a court and is, strictly speaking, an administrative tribunal - albeit one that is required to act judicially.” 14

[18] The Full Bench went on to consider the decision of the High Court in Devane v Gati 15 and, on the basis of that decision, concluded that:

“Thus, the Commonwealth Court of Conciliation and Arbitration, exercising a function that we now know did not involve an exercise of judicial power, was able to make an valid award against an employer named in the relevant dispute proceedings by reference to a trading name or firm name rather than its correct legal name.” 16 [citations omitted]

[19] The Full Bench determined that the trading name specified in the application, whilst not the name of the legal entity, could refer to one and only one legal entity, namely the employer. 17 In accordance with the Full Bench authority, it is proposed to, similarly, take a non-legalistic and pragmatic approach to this question. In this matter, the application, statutory declaration and proposed Agreement all state the correct trading name (Australian Red Cross Blood Service) and the ABN cited is that of the employer (Australian Red Cross Society). With respect to the identity of the employer, I am satisfied that the legal name of the employer is sufficiently clear to indicate who the employer is in all of the three documents. There did not appear to be any doubt on the part of either party as to who the employer is.

[20] Accordingly, I find that there is a valid application before the Commission and that the employer is identified sufficiently clearly in the proposed Agreement such that the proposed Agreement is capable of being approved.

2. Long service leave portability issue

(a) ANMF

[21] It was submitted by the ANMF, in its submissions attached to the Form F18, that the Blood Service is an “Institution”, as defined by clause 20.6.1(c) of the Award. This was because the Blood Service is registered and subsidised under the Hospitals and Charities Act 1958 (Hospitals and Charities Act) and the Health Services Act 1998 (Health Services Act). 18

[22] In relation to the Hospitals and Charities Act, the ANMF argued that:

• within the ordinary language of the Award, the Blood Service is a “Society or Association” within clause 20.6.1(c) of the Award. 19



• the Blood Service is a society or association of persons as defined in section 3 of the Hospitals and Charities Act. This was on the basis that this Act regulated subsidies for organisations that received charitable donations and provided health and/or welfare services. These elements were said to apply to the Society, as set out in its Royal Charter of 1941. Therefore, the Blood Service falls within the scope of the definition of benevolent society under the Hospitals and Charities Act and so is a Society and Association under the Award. 20



• the ANMF stated that the Society was a named Respondent to the Award and was identified as a public health sector institution in Schedule B of the Award. 21 It was submitted that the definition of Institution in the long service leave clause of the Award is/must be informed by the Blood Service’s status as a public health sector institution in Schedule B of the Award. The union argued that the word “Institution”, in clause 20, is informed by reference to the Blood Service as a public health sector institution.22

[23] During the hearing, the ANMF focused its objection on whether or not the Blood Service is registered and subsidised pursuant to the Health Services Act.

[24] In relation to the issue of registered pursuant to the Health Services Act, the ANMF submitted that:

• the provision of registration under the Health Services Act has been abandoned by administrative action of the Victorian Department of Health and Human Services (the Department). This was said to have been replaced by funding through Health Service Funding Agreements. Advice received from the Department was stated to indicate that there is no longer a register maintained under section 20 of the Health Services Act, rather, a List of funded agencies. 23 The union stated that section 20 is no longer applied and is the only relevant provision regarding potential registration by the Blood Service.24



• there is nothing to suggest that registration under the Health Services Act is exclusively confined to registration under section 22(3). It was stated that section 17A confers on the Secretary a power to fund agencies on terms and conditions which the Secretary considers appropriate. The ANMF contended that section 17AB, which defines the term “agency” (which is not defined elsewhere), includes an agency involved in the provision of health services which therefore includes the Blood Service. This was explained to be because that is what section 17A is concerned with. 25



• there is registration required by the Secretary for eBusiness. It was argued that the requirement to register for eBusiness is a condition of the funding under section 17A of the Health Services Act. Registration under the Health Services Act was stated to not be confined to registration under section 22(3) but may be derived from other places, namely section 17A. 26



• payment of monies under the Health Services Act and the conditions attached to that payment, together with the process of registration under the Health Services Act, are all permitted by section 17A and there is no need to go outside section 17A to find those elements. It was argued that the funding List that has been provided constitutes an administrative arrangement that the Secretary is obligated to undertake as part of the administration of the funds for which the Secretary is responsible. 27



• section 18 was described as setting out the criteria which the Secretary has regard to. This section was said to be significant in that it provides the power to the Secretary to make payments. These payments can be on the terms and conditions that the Secretary considers appropriate. 28



• the registration process has been discontinued for funding purposes and registration under section 20 of the Health Services Act is discretionary. Therefore, it was contended that the proper interpretation of the composite term “registered and subsidised” does not require registration under a Register as applies to community health centres. Rather, the term was said to refer, in the present context, to being listed and recorded as the Register has been discontinued in favour of funding agreement arrangements and registration in that sense. It was noted that the Australian Red Cross Society appears on the official list of funded agencies. 29

[25] With respect to whether the Blood Service is subsidised pursuant to the Health Services Act, the ANMF argued that it is on the basis that:

• the meaning of “subsidy” in the Australian Oxford dictionary and the Macquarie dictionary was outlined to be “Money granted by a government instrumentality… to keep down the price of commodities… or (b) money granted to a charity or other undertaking held to be in the public interest and pecuniary aid furnished by government to a private industrial undertaking or cultural organisation or the like”, respectively. 30



• these definitions, together with the context in which the words appear, mean that money granted to a charity held to be in the public interest is a subsidy. It was stated that the Society operates in a partnership to support the Victorian health system and it relies on donations of blood from the public. Further, the services that the Blood Service provides are not provided directly to the Department but to organ donors, recipients of blood, for example. The ANMF submitted that, to characterise the arrangements that the Blood Service has entered into with government, as a fee-for-service contract, misses the point of the character of the Blood Service’s partnership with the community through the government to the public in general and to the recipients of blood services. 31



• this partnership was described as a “special arrangement”. 32



• the Applicant’s attempt to delineate between the Blood Service and the other Society services is irrelevant. This is on the basis that the Award specifies “subsidised and registered under the Health Services Act” and makes no reference to the Society or a particular part of it. Therefore, the funding for all of the other services e.g. patient transport, emergency, are also funding by the Department. All of these monies were said to be granted to the charity held to be in the public interest - for the provision of these services. 33



• the Blood Service’s inability to identify the legislative basis of its funding resulted in the clear inference that the funding is paid under section 17A of the Health Services Act. The union said that there must be a legislative basis for the payment of about $8 million to the Blood Service. The legislative basis were said to be section 17A of the Health Services Act. Therefore, that the instruments which provide the payment of the monies, do not refer back to the Health Services Act was said to not be proof or evidence that the monies are not paid under the Health Services Act. Further, the funds are reported in the Department’s annual report. 34



• the Applicant bears the onus of satisfying the Commission in relation to the application. At the present time, the union contended that the Commission has before it only one submission in relation to the legislative basis of the funding. This submission is that the funds are provided under section 17A of the Health Services Act. This was because there is no other material before the Commission in relation to how the funds are provided. 35

(b) Blood Service

[26] On the other hand, the Blood Service contended that, as it is not an “Institution” for the purposes of clause 20.6.1(c) of the Award, the long service leave portability provisions in clause 20 of the Award, do not apply to it. This was on the basis that the Blood Service is not a hospital or benevolent home, community health centre, Society or Association registered and subsidised pursuant to the former Hospitals and Charities Act or the Health Services Act. 36

[27] It was stated that clauses 20.1.1 and 20.2.1 operate so as to establish the long service leave portability scheme where an employee’s service with different employers would count towards their long service leave entitlements where those employers are institutions or statutory bodies as defined by the Award. The Blood Service noted that, under clause 20.1.1, the entitlement is limited by the application of the wording in the Award which regulates that entitlement ie. “…within institutions or statutory bodies in accordance with the provisions of this clause”. 37

[28] As the union does not submit that the Blood Service is statutory body, it was stated that the only issue is whether or not the Blood Service is an ‘Institution’ within the meaning of the Award. 38 It was submitted that the Blood Service is not a hospital, benevolent home or community health centre as, on any view in relation to its functions, it cannot be regarded as any of these types of organisations.39

[29] In relation to whether the Blood Service is an Institution under clause 20.6.1(c) of the Award, the Blood Service argued that the ANMF’s argument that the Blood Service is registered and subsidised, pursuant to the Hospitals and Charities Act or the Health Services Act, has no foundation either in fact or in law. It was submitted that it is not necessary to determine whether the Blood Service is a society or an association because the Blood Service is not registered and subsidised pursuant to either Act. The Blood Service stated that the term “registered and subsidised” is a composite one in that the long service portability obligations only arise in respect of societies or associations who are both registered and subsidised pursuant to either of the Acts. 40

[30] It was contended that there is no evidence before the Commission that the Blood Service is either registered or subsidised or that any money that it receives arises under the Health Services Act or the Hospitals and Charities Act. Mr Power’s evidence was referred to in this regard. 41 The Blood Service stated that it was entirely open to the union to have called evidence from the Department in relation to the legislative basis for the payments to the Blood Service. Through Mr Power (the Corporate Shared Service Manager, Australian Red Cross Blood Service), copies of the service and other arrangements had been provided and, from the Blood Service’s perspective, these documents were said to be the basis on which the payments were made to the Blood Service.42 Knowledge of the requisite authority was said to be in the hands of a third party (the Department).43

[31] With respect to the meaning of “subsidy”, it was argued that the most relevant definition in the Macquarie Dictionary was “A grant by a government to a company, organisation or individual, for which it receives nothing in return”. 44 The one way flow of funds contemplated by the definition was highlighted, and was said to distinguish the way in which the Society receives the money, pursuant to the agreements.45 It was stated that the mere fact that the Blood Service receives payments from the Department in exchange for the provision of services, in the absence of other evidence to the contrary, does not lead to the conclusion that the legislative source of the payments is the Health Services Act or section 17A of the Health Services Act.46

[32] The Blood Service recounted that registration was not a precondition for funding under the Health Services Act at the time the 2000 Award was made. Therefore, it was argued that it could be reasonably assumed that the term “registered and subsidised” was made in the context that registration was not a compulsory precondition for funding by the Department. 47 The Blood Service submitted that the proper interpretation of the Award provision, in relation to ‘registered’, is a reference to registration under the process established by Division 2 Part 3 of the Health Services Act. It was stated that there is no other process under the Act and that it is incorrect to say that there is some other form of registration eg the List or eBusiness registration. The Blood Service contended that eBusiness registration is an administrative process to facilitate the payment arrangements.48

[33] This was distinguished from section 24 of the Health Services Act which provides for certain rules of registered funded organisations e.g. a registered funded agency must not change its name, change its objectives etc without the prior approval in writing of the Secretary. Section 25 was also referred to in this regard. However, it was noted that registration is not a precondition for funding under this legislation. It is a discretion that the Secretary has - to determine that an organisation needs to be registered. The Blood Service argued that that is the proper basis on which the meaning of “registered” in the Award should be considered. 49

[34] Further, the Blood Service stated that the purpose of section 113 of the Act is to preserve but not to expand entitlements. If the union’s interpretation of the portability provisions is accepted, it was argued that they would have a much broader application than could have been contemplated at the time of making the Award. 50

[35] Reference was made to the union’s argument that, as long as there is some money which transfers from the Department to an organisation, it does not have to be under the Health Services Act or to a registered organisation and that this was sufficient to bring it within the operation of the portability obligations on the Award. In response, the Blood Service argued that the wording of the provision (clause 20.1.1) provided that an employee’s service with an institution will arise in accordance with the provisions of this Award. This was described as quite a confined remit. 51

[36] With respect to the union’s contention that “registered” in clause 20.6.1 of the Award means no more than being contained in a list, it was submitted that this was an unsustainable argument. This was because of the wording of the Award itself but also by reference to the Health Services Act. The “List of Health Funded Organisations as at April 2013” 52 was said to not be the register, as argued by the union. Rather, the List was described as no more than a list of organisations funded by the Department. Some of the organisations were said to be health organisations whilst others were clearly not. The Blood Service contended that the List could not be relied on to assist in the interpretation of “Institution”.53

[37] Reference was also made to the covering email which said that there are no registered funded agencies under section 22(3) of the Health Services Act. 54 The Blood Service contended that this clearly supports the contention that the Blood Service is a registered funded agency. It was argued that the Health Services Act provides for registration in certain circumstances. Even if the Blood Service could be said to be subsidised under the Health Services Act, (which was denied), it was contended that there is no evidence that the Blood Service is registered under the Act.55

[38] The Blood Service referred to section 17A which states that the Secretary may provide “…grants, payments… to agencies from funds administered by the Secretary… on the terms and conditions that the Secretary considers appropriate”. 56 It was argued that “agency” (section 17AB) is defined in a way which does not apply to the Blood Service.57 Within that context, it was argued that section 20 provided that the Secretary may require registration as a condition of continued or actual funding with a process by which registration was to occur.58 It was stated that there is no evidence that the Blood Service has ever been required to seek registration, that it has sought registration or that it is registered under the Health Services Act. Therefore, it was contended that there is no proper basis for the long service leave portability provisions to apply in this case.59

(c) Considerations and conclusions

[39] It is useful at this point to set out the Award clause in contention, namely clause 20.6.1(c). It is as follows:

“20.6.1(c) Institution shall mean any hospital or benevolent home, community health centre, Society or Association registered and subsidised pursuant to the Hospital and Charities Act 1958, or the Health Services Act 1988 or the Cancer Institute constituted under the Cancer Act 1958, or the Fairfield Hospital Board or the Victorian Bush Nursing Association (Inc.), or a Bush Nursing institution.”

[40] By the time of the hearing, the ANMF’s objections centred on the Health Services Act and whether the Blood Service is registered and subsidised under the Health Services Act. It was common ground that “registered and subsidised” is a composite term. This results in a situation where, if the Blood Service is found to be only either registered or subsidised, the Blood Service is not caught by the definition of “Institution”, as set out in clause 20.6.1(c) of the Award. This results in the portability of long service leave not being an applicable award- derived term (from the Award) and so clause 21 of the proposed Agreement does not contravene section 55 of the Act. As well, section 186(2)(c) would be satisfied.

[41] As the ANMF’s objection, during the hearing, was on the basis of the Health Services Act (and not the Hospitals and Charities Act as well), “registered and subsidised” pursuant to the Health Services Act only will be considered. In the first instance, whether the Blood Service is registered pursuant to the Health Services Act will be dealt with.

[42] It was argued by the ANMF that the Blood Service is registered under the Health Services Act. This was on the basis that:

• the Blood Service is contained in the Department’s List of Health Funded Organisations



• the power to register agencies is not confined to section 22(3) of the Health Services Act



• section 17A provides the power to fund and register agencies on terms and conditions the Secretary considers appropriate



• the Blood Service is included in the definition of “agency” in section 17AB



• section 18 sets out the criteria which is the Secretary must have regard to



• eBusiness is a condition, amongst others, imposed by the Secretary under section 17A



• as the registration process has been discontinued for funding purposes and registration under section 20 is discretionary, registration under a register, as it applies to community health centres, is not required



• the present approach of the List of Health Funded Organisations and the funding agreement arrangements equate to registration in that sense.

[43] On the other hand, the Blood Service argued that at the time the Award came into operation, registration under the Health Services Act was, and still is, not compulsory in order to receive funding. It was stated that there is no evidence before the Commission that the Blood Service is or has ever been registered under the Health Services Act or that it has been required to be registered. It was stated that, therefore, the Blood Service is not registered pursuant to the Health Services Act, as required by clause 20.6.1(c) of the Award.

[44] The Health Services Act provides for registration of organisations in certain circumstances in Division 2 of Part 3 (sections 19 - 22) and it regulates registered funded agencies in Division 3. Division 2 provides for registration of certain agencies as a condition of funding. Section 19 specifies what the term “agency” does not include. Section 20 provides that the Secretary may determine that an agency may not receive, or continue to receive funding, unless it is registered under Division 2. Unlike the former Hospitals and Charities Act, registration under the Health Services Act, for agencies (as defined in section 19) is not compulsory in order to receive funding. However, Division 2 specifically provides for registration. Section 22(3) requires the Secretary to keep a register of registered funded agencies. Division 3 sets out the way in which registered funded agencies are regulated. Section 24 sets out the rules of a registered funded agency and the requirements regarding the agency’s constitution; the requirements in terms of the Chief Executive Officer are found in section 25 and the other requirements of registered funded agencies are set out in sections 26 - 30.

[45] It was common ground between the parties that the registration provisions under Division 2 of Part 3 are the only registration provisions which are relevant to the Blood Service in the Health Services Act. There are other registration provisions in the Health Services Act e.g. Division 6 - Community Health Centres. However, Division 2 of Part 3 contains the only registration provisions which could be applicable to the Blood Service.

[46] The ANMF argued that section 17A provided the basis for the funding of agencies (as defined in section 17AB) on the terms and conditions that the Secretary considers appropriate. The power under section 17A, together with the abandonment of registration under section 22(3) of the Health ServicesAct in favour of the Department’s List of Funded Organisations and accompanying administrative arrangements, was argued to amount to registration pursuant to the Health Services Act.

[47] I have not been persuaded that section 17A of the Health Services Act provides for registration of the Blood Service. Leaving aside whether or not the Blood Service is an “agency” as defined in section 17AB, this Division of Part 3 of the Health Services Act, in which section 17A is contained, deals with public funding and the power of the Secretary to provide grants, payments, subsidies or other financial assistance. It also provides that the Secretary can determine the terms and conditions of the provision of the funds. The Service Agreement Information Kit for Funded Organisations 60 sets out the documentation and information required by the Department when entering into a new service agreement with an organisation.61 eBusiness, together with the other administrative arrangements required are, in my view, the terms and conditions on which the grants are paid by the Secretary (section 17A of the Health Services Act). Section 18 of the Health Services Act contains the criteria for determining whether an agency should be funded.

[48] The requirements for registration, under the Health Services Act, are set out in sections 19 - 25. Section 20 of the Health Services Act specifically provides for the registration of agencies. One of the conditions for registration is that the Secretary is required to approve the constitution, objects, purposes and bylaws of the agency (section 21(1)). In addition, the Secretary may refuse to register an unincorporated agency if they consider that the agency should be incorporated or should be managed by an incorporated body (section 21(2)). Once registered, there are ongoing requirements relating to an agency’s constitution, objects, purposes and bylaws. These include the requirement that a registered funded agency must not change its name, objects or purposes or amend or alter its constitution or make, amend or alter its bylaws without the written approval of the Secretary (section 24). In addition, each registered funded agency must appoint a Chief Executive Officer, whose appointment must be pre-approved by the Secretary (section 25).

[49] Therefore, it is my view that ‘registered pursuant to the Health Services Act’ means registration under section 20 of Division 2 of Part 3 of the Health Services Act. Section 17A provides the Secretary with the power to fund agencies and to set the terms and conditions of the funding. It does not provide the Secretary with the power to register an agency and the power to decide if an agency should be registered in order to receive funding. That power resides in clause 20 and the conditions of registration and ongoing registration are set out in sections 21 and 24 - 25. The only place where the power to register an agency, as opposed to fund an agency, can be found in the Health Services Act, is section 20. The provisions that follow (sections 21, 24 - 25 and the remainder of Division 3) are typical registration requirements which are not located, relevantly, in any other part of the Health Services Act. Section 20 is, in my view, quite clear. It provides for registration of agencies in certain circumstances. Section 17A is equally clear in that it provides the Secretary with the power to fund agencies. Clause 20.6.1(c) of the Award requires the Blood Service to be registered pursuant to the Health Services Act. In my view, this means registered under section 20of the Health Services Act and it cannot be substituted by the power to fund agencies under section 17A. The two sections contain the power for the Secretary to do different things - register and fund.

[50] In addition, there is no evidence before me that the Blood Service is registered under Division 2 of Part 3 of the Health Services Act 1988. The covering email 62 from the Department, which states that there are no registered funded agencies under section 22(3), confirms that the Blood Service is not registered pursuant to the Health Services Act.

[51] It is also evident from the submissions that a Register of registered funded agencies (section 22(3)) has not been maintained by the Secretary. That there is a List of Funded Organisations kept by the Department does not, in my view, equate to a Register of registered funded agencies as required under section 22(3) of the Health Services Act.

[52] Taking all of this into account, I am satisfied that the Blood Service is not registered pursuant to the Health Services Act 1988. The term “registered and subsidised pursuant to the Health Services Act 1988” is a composite term. Therefore, as I have found that the Blood Service is not registered pursuant to the Health Services Act 1988, there is no necessity to consider whether or not the Blood Service is subsidised under the Health Services Act 1988.

[53] Accordingly, I find that the Blood Service is not an “Institution” under clause 20.6.1(c) of the Award. The ANMF’s argument that the definition of “Institution” in clause 20.6.1(c) should be informed by the fact that the Blood Service is listed as a public health sector institution in Schedule B of the Award is not accepted. Clause 20.1.1, which sets out the entitlement to long service leave, is specific in that the entitlement is “in accordance with the provisions of this clause”. Therefore, it is clause 20 of the Award that determines the entitlement to long service leave rather than it, in conjunction with another clause or Schedule in the Award, performing that function. Therefore, I find that the long service leave portability provisions in the Award do not apply to the Blood Service as the Blood Service is not an “Institution” as defined in clause 20.6.1(c) of the Award.

[54] As there is no applicable award-derived long service leave portability term, clause 21 of the proposed Agreement is consistent with section 113 of the Fair Work Act 2009 and it does not breach section 55 of the Act.

Other requirements for approval

[55] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[56] As indicated earlier, the ANMF and HSU, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the organisations.

[57] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 November 2015. The nominal expiry date of the Agreement is 30 May 2019.

Appearances:

P Mercuri of Lander and Rogers for ARCBS

P Gardner of Ryan Carlisle Thomas Lawyers for the ANMF

Hearing details:

2015.

Melbourne:

October 28;

November 12.

 1   Written Submissions, dated 13 August 2015, attached to the Form F18 - Statutory declaration filed by the ANMF on 14 August 2015, at paragraph 4

 2   Ibid at paragraph 6 - 10

 3   Transcript PN 1017 - 1035

 4   Ibid PN 916 and 936

 5   Ibid PN 916 - 929

 6   Ibid PN 930 - 931

 7   Ibid PN 932 - 938

 8   Ibid PN 939

 9   Ibid PN 941 - 944

 10   Ibid PN 945

 11   Ibid PN 946

 12   Ibid PN 1253

 13   [2011] FWAFB 1679

 14   Ibid at [35]

 15 (1956) 95 CLR 174

 16   [2011] FWAFB 1679 at [37]

 17   Ibid at [41]

 18   Submissions attached to the ANMF’s Form F 18 at paragraphs 19 - 42

 19   Ibid at paragraphs 26 - 27

 20   Ibid Ibid at paragraphs 28 - 31

 21   Ibid at paragraph 18 and Attachment 5 and Transcript PN 1037

 22   Transcript PN 1037 and 1039

 23   Ibid PN 33 - 35 and Submissions attached to the ANMF’s Form F18 at Attachment 8

 24   Ibid PN 35

 25   Ibid PN 1064 - 1074

 26   Ibid PN 1095, 1099 and 1138 - 1147 and Submissions attached to the ANMF’s Form F18 at paragraph 36

 27   Ibid PN 1089 - 1090 and 1099

 28   Ibid PN 1076 and 1083

 29   Submissions attached to the ANMF’s Form F18 at paragraph 39 and Attachment 8

 30   Transcript PN 1040 - 1043

 31   Ibid PN 1044 - 1046

 32   Ibid PN 1046

 33   Ibid PN 1047 - 1048

 34   Ibid PN 1100 - 1101, 1116 - 1119, 1149, 1159 - 1163 and 1173 - 1174

 35   Ibid PN 1150 - 1151 and Submissions attached to the ANMF’s Form F18 at paragraph 41

 36   Exhibit R4 at paragraphs 1 - 2 and Transcript PN 915

 37   Ibid at paragraphs 5 - 8 and ibid PN 952 - 954

 38   Ibid at paragraph 9 and ibid PN 955

 39   Ibid at paragraphs 13 – 15 and ibid PN 958 - 961

 40   Ibid at paragraphs 20 - 21 and ibid PN 964 - 965

 41   Ibid PN 967

 42   Ibid PN 1255

 43   Ibid PN 1260

 44   Exhibit R4 paragraph 25

 45   Transcript PN 1261

 46   Ibid PN 968 and 1283 - 1284

 47   Ibid PN 969

 48   Ibid PN 1264 - 1270

 49   Ibid PN 1270 - 1275

 50   Ibid PN 969 - 970

 51   Ibid PN 971 - 972

 52   Submissions attached to the ANMF’s Form F18 at Attachment 8

 53   Transcript PN 975 - 976 and Exhibit R4 at paragraphs 26 and 42

 54   Submissions attached to the ANMF’s Form F18 at Attachment 8

 55   Transcript PN 977 - 979

 56   Ibid PN 983 and 987

 57   Ibid 983 - 986 and 1276 - 1281

 58   Ibid PN 983 - 990

 59   Ibid PN 990 and Exhibit R4 paragraph 42

 60   Exhibit R2 at Attachment CP-4

 61   Ibid

 62   Submissions attached to the ANMF’s Form F18 at Attachment 8

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