Compass Group (Australia) Pty Ltd T/A ESS; Compass Group Healthcare Hospitality Services Pty Ltd T/A Medirest (Australia) Pty Ltd

[2019] FWC 6186

[2019] FWC 6186

FAIR WORK COMMISSION

DECISION

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

Compass Group (Australia) Pty Ltd T/A ESS; Compass Group Healthcare Hospitality Services Pty Ltd T/A Medirest (Australia) Pty Ltd
(AG2019/1253)

COMMISSIONER LEE MELBOURNE, 13 SEPTEMBER 2019

Application for approval of the Compass Group - Medirest (Royal Victorian Eye & Ear Hospital) Enterprise Agreement 2018.

Introduction.

[1] This matter involves an application for approval of an Agreement pursuant to s.185 of the Fair Work Act 2009 (‘the Act’). The Agreement is titled the Compass Group - Medirest (Royal Victorian Eye & Ear Hospital) Enterprise Agreement 2018 (‘the Agreement’). The application was lodged on 16 April 2019. The application states that two employers are to be covered by the Agreement, Compass Group (Australia) Pty Ltd trading as ESS and Compass Group Healthcare Hospitality Services Pty Ltd trading as Medirest (Australia) Pty Ltd (the Applicants).

[2] The application and coverage of the Agreement is set out in clause 2 as follows:

“The Agreement applies to and covers Compass Group (Australia) Pty Ltd (ABN 41 000 683 125) and Compass Group Healthcare Hospitality Services Pty Ltd (ABN 79 114320 615) (Company) and to employees employed by the Company in the classifications contained in the Agreement to perform work at or in connection with the Company's hospitality and related services operations at the Company's Medirest operations at the Royal Victorian Eye & Ear Hospital (excluding award free management employees).”

[3] The classifications of the employees to be covered by the Agreement are set out in Schedule A of the Agreement. The classification titles include Catering Attendant, Cleaner and Porter, Courier/ Store Person and Patient Service Attendant (not qualified), Patient Service Attendant (Qualified); Patient Service Attendant (High Acuity), Site administrator, Food Service Supervisor and Cleaning Supervisor.

[4] Schedule A is set out in its entirety as Appendix A to this decision.

[5] At question 3.1 of the Form F17 - Employer's declaration in support of enterprise agreement (F17), the Applicants identify the Hospitality Industry General Award 2010 (the HIG Award) as the Modern Award (Award) that covers the employer and any of the employees covered by the Agreement.

[6] The Health Services Union Victoria No. 1 Branch (of the Health Services Union of Australia) trading as the Health Workers Union (HWU) is a bargaining representative for the Agreement and have submitted a Form F18 – Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement (F18). In the F18, the HWU indicates it supports approval of the Agreement. However, the HWU disagrees with the Applicants’ assertion that the HIG Award is the appropriate Award that covers the employers and its employees. The HWU states as follows in the F18:

“7.1 We disagree with the responses to item 3.1. The HWU submits that the appropriate modern award that covers employees is the Health Professional and Support Services Award 2010 (MA000027) (HPSS Award). We say that the HPSS Award is the most appropriate award, having regard to the work performed by the employees and to the environment in which the employees normally perform their work, being a Hospital.

7.2 In the event that the Commission were to consider that the appropriate modern award that covers the employees is the HPSS Award and not the Hospitality Industry (General) Award 2010 (MA000009) (the Hospitality Award), we would also disagree with the subsequent and ancillary responses in the Employer's Declaration in relation to the Hospitality Award, where they are not otherwise aligned with the HPSS Award.” 1

[7] In emails dated 26 June and 3 July 2019 and at the Mention hearing held on 10 July 2019, I expressed to the parties a provisional view that the Health Professional and Support Services Award 2010 (the HPSS Award) was the relevant Award which applies to the employers and employees covered by the Agreement. The Applicants maintain the HIG Award is the relevant Award. Directions were set for the Applicants and the HWU to file written submissions and evidence, and the matter was listed for Hearing on 31 August 2019.

[8] The hearing focussed on evidence relevant to determining the question as to which Award covers the employers and employees covered by the Agreement. However, I also advised the parties that irrespective of which of the Awards covers the employers and employees, that I had concerns as to whether the employees to be covered by the Agreement would be better off overall. The nature of the Better Off Overall Test (BOOT) concerns differed depending on which of the Awards in fact covers the employers and employees. I also advised the parties that if it was the case that the HPSS Award covers the employers and employees, that this may give rise to a concern as to whether the Agreement was genuinely agreed within the meaning of the Act. However, it was agreed that the most efficient course was to have the Commission determine which Award covers the employers and employees as a first step. This decision deals only with that matter.

The Awards and their respective coverage provisions

[9] Relevantly, the HIG Award contains the following:

“4. Coverage

4.1 This industry award covers employers throughout Australia in the hospitality industry and their employees in the classifications within Schedule D—Classification Definitions to the exclusion of any other modern award. The award does not cover employers in the following industries:

(d) hospitals;”

[10] Clause 4.2 of the HIG Award also details the following:

“For the purpose of clause 4.1, hospitality industry includes hotels; motor inns and motels; boarding establishments; condominiums and establishments of a like nature; health or recreational farms; private hotels, guest houses, serviced apartments; caravan parks; ski lodges; holiday flats or units, ranches or farms; hostels, or any other type of residential or tourist accommodation; wine saloons, wine bars or taverns; liquor booths; resorts; caterers (emphasis added); restaurants operated in or in connection with premises owned or operated by employers otherwise covered by this award; casinos; and function areas and convention or like facilities operating in association with the aforementioned.”

[11] The clauses of the HPSS Award that are relevant to coverage include the following:

“4. Coverage

4.1 This industry and occupational award covers:

(a) employers throughout Australia in the health industry and their employees in the classifications listed in clauses 14—Minimum weekly wages for Support Services employees and 15—Minimum weekly wages for Health Professional employees to the exclusion of any other modern award”

[12] The definition of “health industry” is described at clause 3 of the HPSS Award as:

“health industry means employers whose business and/or activity is in the delivery of health care, medical services and dental services.”

Law to be applied

[13] Both parties relied upon the decision in R v. Central Reference Board; Thiess (Repairs) Pty Ltd (Thiess). 2 In Thiess, the High Court was required to determine whether an employee of an engineering company that largely provided mechanical repair services to the operators of an adjacent coal mine was in the coal industry. In the leading judgement of CJ Latham, it was made clear that whether an employer or employee is in a particular industry is a question of fact:

“It is a question of fact depending on all the circumstances of the case whether a particular employer or employee is engaged in the coal mining industry; The line between industries is in many cases not clear. One industry may be entirely concerned with the service of another industry, and yet may not be part of that other industry. A laundry company may do work for hotels and restaurants but, to take a case at one end of the line, if the laundry business were conducted by a laundry company completely separate from any of the hotels and restaurants for which it did work ( as for other customers) upon ordinary commercial terms, it would not be possible to say the laundry was part of the hotel industry. A case at the other end of the line would be found where a hotel employed some laundresses on the hotel premises who did work exclusively for the hotel and were completely under the control of their employer. In such a case the laundresses might well be held to be working in the hotel industry. 3”

[14] Consideration was given to various facts by his Honour such as whether the two sets of workmen worked together with the the finding being that they “…do not work together in any sense.” 4

[15] The Chief Justice also made the following observations:

“…the fact that enterprise A is “closely associated” with enterprise B does not in itself establish either that enterprise A is engaged in the same industry as B or that enterprise B is engaged in the same industry as A.”

“The fact that an enterprise provides a service for a particular industry cannot be held to identify that enterprise with that industry so as to make it a part of the industry.”

“In my opinion the question to be asked is-What is the substantial character of the industrial enterprise in which the employer and employee are concerned? In the present case the employer is Thiess (Repairs) Pty. Ltd. That employer is not engaged in coal mining, but is an engineering company carrying on general work. It is not under the control of the mine owner, or even the contracting party (Thiess Bros. Pty. Ltd.) which actually conducts the mining operations. But the more important fact is that its operations are separate from and different in kind to the operations carried on at the open cut. It supplies certain needs of the coal mining industry in the same way as do many other industrial enterprises. But these facts do not show that all such suppliers of goods and services to that industry are themselves engaged in that industry.”  5

[16] It is also the case that the enterprise of an employer can have more than one character and be in more than one industry. 6 Where an enterprise has more than one character. it is not necessary to decided what is predominant.7 A character must be substantial before one can ground a conclusion that the enterprise is in a particular industry.8

The Evidence

[17] Evidence was provided by Ms Bondini, the National HR and risk manager for Compass Group Management Services Pty Ltd (a wholly owned company of Compass Group Australia Pty Ltd which is one of the Applicants). Evidence was also provided by Ms Murray who is employed by the Applicants as the Service Manager at the Royal Victorian Eye and Ear Hospital (Eye and Ear Hospital) in Melbourne.

[18] The HWU did not provide any witness evidence, however the HWU submitted a number of documents and cross examined the Applicants’ two witnesses at some length.

The make-up of the Applicants’ business and the services they provide.

[19] Ms Bondini’s evidence was that she had an understanding of the Applicants’ business and the industries in which it provides services, that she was an expert in relation to the operations of the Applicants and had a general understanding of the contracts of the business and the services that they provide. 9

[20] Ms Bondini’s evidence with respect to the two employers covered by the Agreement was as follows:

“[Compass Group (Australia) Pty Ltd] (CGA) used to be the employing entity for all employees within Compass Group except for Omega and DeltaFM. Progressively over recent years, new employees in each of the divisions have been employed by a division specific employing entity. There are, however, some exceptions, for example employees who were covered by an existing enterprise agreement which bound CGA, were not transferred to a sector-specific employing entity.

It is for this reason that some of the employees covered by the Agreement are employed by CGA and the remainder by Compass Group Healthcare Hospitality Services Pty Ltd (CGHHS). Both of these companies are party to the Agreement.” 10

[21] Ms Bondini’s evidence is that hospitality and catering is the core business of the Applicants. She conceded there were exceptions to this, being Omega Security Services which operates in the security industry and DELTA FM which is a facilities management company. 11

[22] Ms Murray understands the Applicants to be one of the largest catering companies in the world. 12 Compass Group Healthcare Hospitality Services Pty Ltd (CGHHS) is the main employing entity for “MediRest.”13 It employs persons at numerous sites where it holds contracts to provide, what Ms Bondini describes as, hospitality services to a range of hospitals and aged care facilities throughout Australia. Either the HIG Award or an enterprise agreement covers and/or applies to these employees.

[23] Ms Bondini’s evidence is that, where an enterprise agreement applies, it is underpinned by the HIG Award. 14 There are however exceptions to this general position. The Agreement which covers employees at Thomas Embling Hospital is one, where it is said there are “historical” reasons for not applying the HIG Award. Another exception is the Newcastle Mater Hospital, where a private/public partnership is in operation. At the Newcastle Mater Hospital, CGHHS (one of the Applicants) manages the employees who perform catering, cleaning, laundry and security services.15 However, NSW Health employs the staff being managed. A similar public/ private partnership is in place at Long Bay Forensic Hospital.

[24] The Applicants employ approximately 10,000 employees across Australia. Approximately 2,000 of these employees are in the “Medirest” business. 16

[25] Other Compass group entities are:

•  Compass Group Education Hospitality Services Pty Ltd;

•  Compass Group B&I Hospitality Services Pty Ltd;

•  Compass Group Defence Hospitality Services Pty Ltd; and

•  Compass Group Remote Hospitality Services Pty Ltd.

[26] It is apparent from the evidence of Ms Bondini, that a significant part of the Applicants’ business is in the provision of food or catering services and that they provide these services in a range of diverse environments, from offshore platforms to defence establishments. 17

[27] However, it is also apparent that the Applicants have significant involvement in the provision of services other than food and catering, including broader support services, security and facilities management. Ms Bondini accepted that the Applicants’ business is broader than just contract food services. 18 Ms Bondini did not know what proportion of the Applicants’ business could be attributed to support services as opposed to catering and hospitality, either in Australia or on a global basis.19 However, Ms Bondini maintained that catering and hospitality was the core business of the Applicants and that this knowledge was obtained from “on boarding, my business review meetings and inductions with general managers.”20

[28] At the hearing, Ms Bondini was shown printouts from the Applicants’ website. She agreed that the Applicants worldwide have 14% of its services attributed to support services. She was unable to comment on the data on the break up of revenue on the website. 21

[29] Ms. Bondini did not have any knowledge of the specific arrangements at Newcastle Mater Hospital or Long Bay Forensic Hospital. 22 Ms Bondini’s evidence is that the Applicants’ employees would not ordinarily be required to hold health care qualifications in order to carry out the duties associated with their classifications, as is the case at the Eye and Ear Hospital.23 However, it is apparent from two of the Applicants’ job advertisements for hospitals in Queensland, 24 that the positions advertised at the hospital required a Certificate III in health support. Further, Ms Murray’s evidence was that some employees of the Applicants at the Eye and Ear Hospital were required to hold health care qualifications. Ms Bondini agreed that the duties in the job advertisements such as transporting patients to theatres, assisting clinical staff, preparing operating rooms, cleaning and maintaining theatre equipment, assisting preparation of patients prior to surgery and the assistance of clinical staff could not be described as catering duties or ancillary to catering.25 Ms Bondini agreed that patient support work was not “unexpected” for employees of the Applicants.26 Ms Bondini did not know if it was unusual for the Applicants’ employees to take instructions from employees of the hospital (rather than employees of the Applicants).

Evidence as to the type of work performed at the Eye and Ear Hospital

[30] Ms Bondini had little to no knowledge of the work actually performed at the Eye and Ear Hospital. 27 She did not know what patient services were performed at the Eye and Ear hospital by the Applicants’ employees.28 However, at paragraph 24 of her witness statement, Ms Bondini makes the following claim:

“The work performed by employees who will be covered by the Agreement is essentially indistinguishable from the work performed by employees across the Compass Group. It is firmly based upon catering, cleaning and guest services. The food preparation and service undertaken at this hospital requires all of the same skills and experience as food preparation and service at the various schools, boarding houses, accommodation camps, aged care homes and defence barracks where Compass Group employees are engaged. The position is the same with cleaning work, many of the areas are maintained in the same way across the whole portfolio e.g. changing linen, general room cleaning and making beds. Whilst specific additional items need to be cleaned at various locations, the methods in place rarely change. When this Agreement uses the term 'patient services' for the most part it refers to duties which are essentially guest service duties performed across a number of the sites where Compass Group companies perform work.” 29

[31] When Ms Bondini was asked how she could make that claim in light of her concession that she does not know what work is done at the Eye and Ear Hospital, she replied:

“Your statement at paragraph 24 goes to the work performed, not the industry that you say you're in.  Specifically in relation to these employees covered by this agreement - or proposed agreement - you're saying the work that they do is indistinguishable, essentially indistinguishable, from the work performed by employees across the Compass Group.  My question is how is it that you come to that conclusion?‑‑‑Through my time with the company; through visiting sites; through my onboarding process; through attending business meetings; from reading industrial documents; and the general induction process.” 30

[32] The evidence from Ms Bondini on this point was rather vague.

[33] As stated previously, Ms Murray is the Service Manager for the Applicants at the Eye and Ear Hospital and was able to provide more detailed evidence as to the type of work performed and the way in which the Applicants’ employees interact with the hospital and its staff. Ms Murray’s evidence is that the Applicants’ employees at the Eye and Ear Hospital have their own site office and locker area and that the Applicants supervise their own staff and give directions to them. However, Ms Murray also conceded that the Applicants’ employees would be likely to be given directions or instructions by staff other than the applicants employees. On the wards, a nurse may ask an employee to do something and they are expected to do it. 31

Food services provided by the Applicants employees at the Eye and Ear hospital

[34] Ms Murray’s evidence was:

“There are 30 beds in the hospital and the food services provided by Compass primarily relate to wards where in-patients stay. Compass provides breakfast, lunch and dinner, morning tea and afternoon tea, and tea and coffee to these patients.” 32

[35] Employees of the Applicants do not operate the kiosk or snack bar at the Eye and Ear Hospital. In terms of the food services component of the work, they are primarily focussed on providing meals to patients as opposed to staff, with some minor exceptions. 33 The food is cooked and prepared off site (with the exception of porridge) and the Applicants’ staff then further prepare (e.g. heat the food where necessary) and then distribute the food to patients when it arrives. Ms Murray sets out the way in which the Applicants’ employees provide meals to patients using the “simplicity menu.”34 The salient points are that the hospital identifies patients particular dietary requirements,35 the Applicants’ employees then provide the meal options. The Applicants’ employees will point out to a patient if they have chosen a meal that is not appropriate to the dietary requirements of the hospital. When patients order inappropriate meals, the Applicants’ employees will engage with clinical staff as to how to deal with the matter.36 Ms Murray likened the process of providing meals to patients as similar to that of restaurants or an airline.37 Ms Murray conceded that catering or food services was approximately only 10% of the work at Eye and Ear Hospital.38

Cleaning services undertaken by the Applicants’ employees at the Eye and Ear Hospital

[36] In terms of the cleaning function, the Applicants staff are involved in cleaning most areas of the hospital including inpatient wards and operating theatres and both clinical and non- clinical areas of the hospital. The required standard of the cleaning varies depending on what area is being cleaned. For example, in clinical areas all surfaces must be wiped, but that will be less the case in non-clinical areas. Also, the frequency of cleaning will be greater in the clinical areas. The Victorian Hospital Cleaning Standards apply to the cleaning tasks at the Eye and Ear Hospital and must be complied with. Clinicians advise employees of the Applicants what cleaning chemicals to use. 39 Generally, the Applicants’ employees liaise with clinicians as to the cleaning chemicals required to be used in relation to infection control requirements.40 Staff of the Eye and Ear Hospital train the Applicants’ cleaning staff in regards to infection control.41

[37] As to the cleaning up of bodily fluids, this is the responsibility of clinical staff. The Applicants’ employees do the final clean once the fluids are removed by clinical staff of the hospital. Nurses empty bedpans and then the Applicants’ staff take care of putting the pan in the steriliser and so on. Needles and other such types of used medical equipment are not handled by the Applicants’ employees. However, Ms Murray agreed that some of the cleaning performed by the Applicants’ employees such as “type A” and “airborne” cleaning of emergency departments and patient wards is unique to health care. 42

[38] Ms Murray also drew a comparison in relation to specific cleaning requirements in a hospital to “suitable levels of cleaning” where somebody has died in a hotel room. She then went on to state that “maybe they would get somebody externally to do it.  Maybe their cleaning staff wouldn't do it themselves.” 43

Distribution services undertaken by the Applicants employees at the Eye and Ear Hospital

[39] Ms Murray describes the Applicants’ transportation or distribution services as a “porter” type service:

“This includes general distribution of items for patients and general equipment, collection and return of mobile garbage bins and general waste service, collection and return of dirty linen, equipment relocation service (moving beds, bedside lockers, tables, trolleys, office equipment, including desks, chairs, filing cabinets, tables, whiteboard or other communication equipment, equipment requiring repairs, or obsolete items for disposal), setting up of meeting rooms and patient transport services, including luggage if required.” 44

[40] Porters transport patients on trolleys or wheelchairs. If the patient is unwell or has medical needs, a nurse accompanies the porter. Ms Murray claimed that this type of patient transport was similar to hotel staff assisting a customer in a wheelchair to a room.

[41] The Applicants’ staff also transport medical equipment. 45 They also pick up and transport “tubs” which are coded to indicate if the contents are clean or dirty.46

Patient support services provided by the Applicants employees at the Eye and Ear

[42] Mr Murray’s evidence in relation to patient services at the Eye and Ear Hospital was as follows:

“Compass provides patient support services which includes, primarily cleaning services for clinical areas (such as wards, emergency department, treatment rooms, theatre and day surgery), restocking of consumables and transportation services. Compass staff strip and make beds, clean surfaces, assist patients with their meals (including removing lids, opening packs, cutting up meals and assisting with feeding, for example, vision impaired patients), and organise linen. Patient support services will offer tea, coffee or a sandwich to patients in postoperative areas, and ensure fresh water jugs have been distributed in the morning, as well as replenished throughout the day. They may also provide additional food and beverage service to patients between meals as directed by clinical staff.

In relation to replenishing stock ('imprest items'), this may be both clinical and nonclinical consumables. The process for replenishing both clinical or nonclinical consumables is fundamentally the same. Compass staff must assess whether there is sufficient stock, and if not, obtain additional items and restock. In some cases, clinical staff may identify that an item needs to be re-filled and will direct Compass staff to replenish that particular item.” 47

[43] It is a requirement of the Eye and Ear Hospital that employees at levels 4 and 5 engaged under the Agreement, hold a Certificate III in health care or equivalent. Ms Murray’s evidence on this requirement is as follows:

“The reference to the holding of a Certificate III Healthcare or equivalent in the level 4 and level 5 roles in the Agreement is included because this is a requirement of our client. My understanding is this is required because Compass staff may need to assist clinicians to provide patient support. Examples of where Compass staff may provide patient support include patient feeding (as noted above), assisting nurses who may need to perform lifts and positioning of patients, or assisting nurses with showering patients.” 48

[44] Ms Murray points out that it is the nurses who undertake this work but that Applicants’ staff assist the nurse in performing the work. 49

The current (2012) Agreement and its relationship to the new Agreement

[45] The employers and employees currently operate under the Compass Group (Medirest Royal Victorian Eye and Ear Hospital) Enterprise Agreement 2012 (the 2012 Agreement). 50

[46] Ms Murray was taken to the various differences between the 2012 Agreement and the Agreement which is the subject of these proceedings. She agreed that there had been “quite a change” from the previous classification structure to the one under the Agreement which is the subject of these proceedings. 51 However, Ms Murray said the work performed at the Eye and Ear Hospital had not changed.52 Ms Murray thought that the classification structure under the 2012agreement made no sense53 and gave the following evidence:

“That was identified by Compass in bargaining that it needed to change it because it was not fit for purpose.  That's why you have a new classification structure that is very specific to the hospital environment that these workers work in.  That's right?‑‑‑Yes.” 54

Other matters

[47] Ms Murray agrees all staff are required to understand the hospital emergency system. When an emergency code is called, a member of the response team can include a porter engaged by the Applicants. 55 The Applicants’ employees are required to wear scrubs which are supplied by the hospital for infection control. They are also required to “carbolise” beds.56 Ms Murray concedes that employees at hotels are not required to follow this process and therefore is unique to a hospital setting.57

Consideration

Does the HIG Award apply cover the employers and employees at the Eye and Ear Hospital?

[48] It is apparent, and it is conceded by the HWU that that the Applicants, both globally and in Australia, are predominately in the food services and catering business. 58 However, it is also apparent that the Applicants have significant involvement in providing services beyond those in food and catering. They are also in the security and in the facilities management business. Approximately 20% of the employees of the Applicants in Australia are in the Medirest business. The Medirest website states that: “Medirest look after a wide range of support services that go beyond the kitchens of Healthcare, Hospital and Senior Living Facilities.”59 There is a list of “Our Industries” on the Medirest website. The list of industries are “Hospitals and Senior Living; Food Services; Support Services.”60

[49] The Applicants are involved in public/private partnerships at the Long Bay Hospital and at the Newcastle Mater Hospital, where they are managing employees, the majority of whom are directly employed by NSW Health. The partnership arrangement at those hospitals evidences the Applicants being engaged in the hospital industry at those sites, as opposed to being separate from it.

[50] An employer can be in more than one industry. It is apparent that while the Applicants are predominately a food service and caterer, this is not the only industry that it is in. It has a discrete segment of its business that has a substantial character that is in the hospital industry.

[51] At the Eye and Ear Hospital, the evidence shows that the services the Applicants already provide and will provide under the terms of the Agreement extend well beyond that of food services and catering. Ms Murray was clear that approximately 10% of the work is involved in catering services. I agree that the making and provision of the food to the hospital, almost all of which is prepared at another location is that of a catering service. Of course, there is no suggestion that employees of the Applicants who make the food and transport it to the hospital are involved in any industry other than hospitality. However, the distribution of the food is largely to patients of the hospital. It is not, with some minor exceptions, to staff of the hospital or visitors. The Applicants’ website acknowledges that patient’s meals are an integral part of a patient’s treatment. 61

[52] While I accept that the clinicians of the hospital are responsible for determining the dietary needs of the patients, the evidence is that the Applicants’ staff are required to engage with the clinicians when there are issues with meal selections of patients. They are from time to time required to feed patients. This is not characteristic of the type of work one would normally associate with the hospitality industry. I agree with Ms Murray that there are similarities of the work of distributing the food at the hospital with that of a restaurant or an airline. However, the evidence reveals that there are also significant differences.

[53] Irrespective of the food services aspect of the work performed at the hospital, the majority of the work undertaken is in the other support services that were canvassed in the evidence earlier. Ms Bondini gave evidence that the work performed by employees at the hospital was indistinguishable from the work performed by employees across the Applicants’ business. However, this evidence was rather vague, given Ms Bondini clearly had little to no knowledge of the work performed at the Eye and Ear Hospital.

[54] Overall, Ms Murray sought to portray the type of work, other than food services work, undertaken by the Appliants’ employees as hospitality work. For example, that the cleaning work was similar to cleaning work performed at a hotel or similar hospitality environment, that the transporting of patients was akin to the type of service that might be provided in a hotel and so on. However, the evidence is that the work being performed is in many respects unique to the hospital environment. The cleaning of theatres and wards and the related need for infection control and adherence to government mandated standards can be contrasted with more general cleaning tasks in a provider of hospitality services such as a restaurant or hotel.

[55] At the Eye and Ear Hospital, the Applicants’ staff are directed as to the type of cleaning chemical to use by the clinicians. The transporting and feeding of patients is certainly unique to the hospital environment. While a hospitality worker at a hotel may occasionally assist a guest with accessing a room in a wheelchair, this is not what is occurring at the hospital. The transport of patients is part and parcel of the service provided, not an uncommon event as it is likely to be in the case of transporting guests at a hotel. I agree that the role of a Porter mirrors the typical health classification of a Hospital Orderly and bears little resemblance to the guest services attendant classification in the HIG Award. The fact that some classifications of staff at the hospital are required by the hospital to hold health care qualifications is significant. That this is so is not surprising given the involvement of the Applicants’ staff with patient feeding, assisting nurses with lifting, positioning and showering patients. Patient service attendants (PSAs) are expected in some circumstances to work in high acuity settings. Again, this is not work that could reasonably be said to be similar to that of guest services in the hospitality industry.

[56] Importantly, the evidence shows that the work undertaken by the Applicants’ staff is very much part of the fabric of the hospital’s operations. True it is that the Applicants’ staff take directions from the Applicants’ employees, as well as having their own lockers and uniform. However, they also take direction from the hospital’s clinical staff directly. They are provided training from hospital staff. Considering the business of the employers as a whole, the evidence demonstrates that the Applicants’ operations are not separate from and different in kind to the operations carried on at the hospital. In many respects, they work together with the hospital staff.

[57] Having regard to the totality of the evidence, the Applicants have a significant part of their business that is substantially the character of a business in the hospital industry. Therefore, the Applicants and their employees are not covered by the HIG Award by virtue of the operation of clause 4.1(d), which provides that the Award does not apply to employers and their employees who are in the hospital industry.

Does the HPSS Award apply?

[58] As set out earlier, the HPSS Award covers employers throughout Australia in the health industry and their employees in the classifications listed in clause 14 - minimum weekly wages for support services employees, to the exclusion of any other Modern Award. The health industry is defined as employers whose business and/or activity is in the delivery of health care, medical services and dental services.

[59] Health care is not defined. However, the Macquarie dictionary definition defines health care to include “medical and other services provided for the maintenance of health, prevention of disease etc.” 62 It is apparent on the evidence already referred to, that the Applicants are in the hospital industry and that is certainly the case at the Eye and Ear Hospital. On any view, the hospital industry is in the health industry. The Eye and Ear Hospital is a public health service under the Health Services Act 1988. As to the Applicants’ employees at the hospital, it is apparent that the classifications, as they cover hospital orderly, food and domestic services assistant and other food services duties, cleaner, patient services assistant, gardener align with the support service classifications in the HPSS Award.

[60] It is apparent from the foregoing that the HPSS Award applies to the employer and employees.

The meaning of “activity” as it is used in the HPSS Award

[61] As noted, the definition of health industry in the HPSS Award includes employers whose business and/or activity is in the delivery of health care or medical services.

[62] The Applicants submitted that I should find that “activity” where it is used in the HPSS Award, is a synonym of “business,” in so far as it concerns public sector entities. This submission is based on a the claim that it is not customarily apt to describe a public sector organisation pursuing not for profit activities which serve the public good, as being engaged in a “business” and that at the time the HPSS Award was formed, there was a desire of the Victorian Hospitals’ Industrial Association to ensure that the HPSS Award covered both public and private sector employers.

[63] The Applicants submit that, seen in its proper context, it is of no surprise that the word “activity” appears in the definition of health industry. This submission is speculative. The Applicants ultimately submitted that they could not, after trying as hard as they could, find the explanation for why “and/or activity” is there. However, the submission as to what it should mean is the only coherent reason that the Applicants’ representative could conceive. 63

[64] The HWU submits that the ordinary meaning of the word “activity” should be used. The task of construction of a Modern Award or enterprise agreement, like that of a statute or contract begins with the ordinary meaning of the relevant words, and I see no reason to depart from that approach. 64

[65] Activity means “the state of action; doing.” 65 It is apparent from the evidence canvassed above, that the Applicants are involved in the activity of delivering health care services at the Eye and Ear Hospital.

[66] In the event that I am wrong to have determined that the Applicants’ business is in the delivery of health care, then they most certainly would be involved in the “activity” of the delivery of health care and therefore, the HPSS Award would cover them.

Could both awards apply?

[67] In the event my foregoing reasoning is incorrect, it may be the case that both Awards apply to the employer and its employees. In these circumstances, clause 4.8 of the HPSS Award and clause 4.8 of the HIG Award would apply:

“Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.”

[68] Taking into account the Award classifications, it is apparent that the HPSS Award classifications are more appropriate to the work to be performed by the employees as described in the proposed Agreement and amplified in the evidence of Ms Murray. There is no apparent relevant classification for a PSA in the HIG Award. There are three PSA classifications (levels 4, 5 and 6) in the Agreement. Although the Applicants submit that the role of the porter aligns with that of a guest services employee under the HIG Award, the evidence adduced as to the requirements of the role demonstrates that there is no appropriate comparator under the HIG Award. The classification of cleaner under level 2 of the Agreement refers to ‘general cleaning’ as do various classifications in the HIG Award, however the Agreement classification description extends to specialised cleaning for discharge and infections cleans in clinical and non-clinical areas which the HIG Award does not contemplate.

[69] Considering the environment in which the employees perform the work, the environment is a hospital environment. Hospitals generally and certainly the Eye and Ear Hospital, is involved in the provision of health care. This strongly weighs towards a finding that the HPSS Award is the most appropriate Award for the employers and employees covered by the proposed Agreement.

Conclusion

[70] For the foregoing reasons, I have determined that the HPSS Award is the relevant Modern Award that covers the Applicants the employees covered by the Agreement.

Next steps

[71] I have a concern as to whether the Agreement passes the BOOT. I also have a concern as to whether the Agreement has been genuinely agreed in circumstances where it is apparent that it has been explained to employees that the comparator award is the HIG Award. The matter will be relisted on 1 October 2019 for mention and if necessary further programming to deal with these matters.

COMMISSIONER

Appearances:

Mr A. Longland for the Applicants

Mr S. Crawford for the HWU

Hearing details:

31 August 2019.

Printed by authority of the Commonwealth Government Printer

<PR712040>

Appendix A

 1   Form F18 – Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement filed by HWU, 16 May 2019.

 2 (1948) 77 CLR 123.

 3   Ibid.

 4   Ibid.

 5   Ibid.

 6   R v Drake Brockman; Ex parte National Oil Pty Ltd (1943) 68 CLR 51; Dyno Nobel Asia Pacific Limited v Construction, Forestry, Mining and Energy Union, PR956868 at 51. (1948) 77 CLR 123..

 7   R v Isaac; Ex parte Transport Workers Union, (1985) 159 CLR 323.

 8   R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123; Burgess v Connell-Mott (1979) 27 ALR 427; Dyno Nobel Asia Pacific Limited v Construction, Forestry, Mining and Energy Union, PR956868 50-51.

 9   PN71 - PN74.

 10   Exhibit 1, Witness Statement of Melanie Lillian Bondinidated 9 July 2019 at [12] – [13].

 11 Ibid at [10].

 12 Ibid. at [6].

 13 Ibid at [15].

 14 Ibid at [15].

 15 Ibid at [16].

 16 Ibid at [8].

 17   Ibid.

 18   PN79.

 19   PN92 - PN95.

 20   PN205.

 21   PN265 – PN283.

 22   PN168.

 23   PN227.

 24   Exhibit HWU9 as Marked, as Filed; Exhibit HWU10 as marked, as filed.

 25   PN250-252.

 26   PN264.

 27   PN189-197; PN200.

 28   PN208.

 29   Exhibit 1, Witness Statement of Melanie Lillian Bondinidated 9 July 2019 at [24].

 30   PN205.

 31   PN350.

 32 Exhibit 2, Witness Statement Of Kate Lorraine Murray Dated 30 July 2019 at [11].

 33   PN376.

 34   Exhibit 2, Witness Statement Of Kate Lorraine Murray Dated 30 July 2019 at [12] – [27].

 35   Ibid.

 36   PN393.

 37 Exhibit 2, Witness Statement of Kate Lorraine Murray Dated 30 July 2019 at [23].

 38   PN388.

 39   PN457.

 40   PN460.

 41   PN438; PN450 – 451.

 42   PN450-451

 43   PN441.

 44 Exhibit 2, Witness Statement of Kate Lorraine Murray Dated 30 July 2019 at [42].

 45   PN495.

 46   Exhibit 2, Witness Statement of Kate Lorraine Murray Dated 30 July 2019 at [50] – [52].

 47   Ibid at [53] – [54].

 48 Ibid at [55].

 49   Exhibit 2, Witness Statement of Kate Lorraine Murray Dated 30 July 2019.

 50   AE895617.

 51   PN522.

 52   PN523.

 53   PN536.

 54   PN358.

 55   PN477.

 56   PN465.

 57   PN465.

 58   PN699 – PN700.

 59   Exhibit 6, HWU6 - Screenshots from Compass Group Web Sites.

 60   Ibid.

 61   Exhibit 6, HWU6 - Screenshots from Compass Group Web Sites.

 62   Macquarie Dictionary, fifth Edition.

 63   PN785.

 64   AMWU v Berri Pty Ltd (Berri) [2017] FWCFB 3005; AMIEU v Golden Cockerel Pty Ltd [2017] FWCFB 4487.

 65   Macquarie Dictionary, fifth Edition.