[2018] FWC 4925

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Health Services Union – New South Wales Branch
v
Gulgong Hostel Association Inc (t/a Wenonah Lodge & Wenonah Community Care)

(C2018/1660)

COMMISSIONER JOHNS

MELBOURNE, 23 AUGUST 2018

Dispute about matters arising under an enterprise agreement – dispute resolution.

Introduction

[1] This is a decision about whether Care Service Employees Grade 2 (CSE2) employees of Gulong Hostel Association Inc (t/a Wenonah Lodge & Wenonah Community Care) (Gulong Hostel) can be required to dose and administer insulin to residents.

[2] The matter arises out of a dispute about the application of the Wenonah, NSWNMA and HSU Enterprise Agreement 2017 - 2020. (Agreement) in particular clause 35 (labour flexibility and mixed functions) and clause 1.3(a) of the Schedule A (employment classifications) to the Agreement.

[3] The applicant is the Health Services Union – New South Wales Branch (HSU). The HSU contended that CSE2 employees cannot be required to dose and administer insulin to residents. Gulong Hostel contends otherwise.

[4] Having failed to reach an agreement on the articulated question/s for the Fair Work Commission (Commission) to decide, on 20 April 2018 the HSU submitted the following questions for the Commission to answer,

1. Considering cl 35 of the Wenonah, NSWNMA and HSU NSW Enterprise Agreement 2014 - 2017, and the duties referred to in the Care Stream of clause 1.3(a) of Schedule A to the Agreement, is it in accordance with the Agreement and otherwise lawful for Gulgong Hostel Association Incorporated to direct employees engaged as Care Service Employees Grade 2 to dose and administer insulin to residents? (Applicant Question 1)

2. If the answer to question 1 is yes, is it nonetheless unreasonable to require employees engaged as Care Service Employee Grade 2 by Gulgong Hostel Association Incorporated to dose and administer insulin to residents in circumstances where they do not wish to perform those duties? (Applicant Question 2)

(Applicant Questions)

Jurisdiction

[5] Section 739 of the FW Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The Agreement contains such a term at clause 44. Having regard to the information in the Form F10 application and submissions of the parties, the Commission has jurisdiction to deal with the dispute, including by arbitration, under clause 44.6(a) of the Agreement. It was common ground that the Commission had jurisdiction to arbitrate the dispute.

The Agreement

[6] The Agreement was approved on 13 March 2018 and commenced operation on 20 March 2018. It has a nominal expiry date of 30 June 2020. 1

[7] The Agreement applies to the Gulong Hostel and,

… all those employees of the employer performing work within the classifications contained in this agreement and employed in a residential aged care facility or home care program run from an aged care facility in NSW. 2

[8] The HSU is covered by the Agreement. 3 So too is the Australian Nursing and Midwifery Federation (ANMF), however, it played no role in the proceedings.

[9] The following clauses in the Agreement are relevant:

35. Labour flexibility and mixed functions

35.1 The employer may direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training.

35.2 The employer may direct an employee to carry out such duties and use such tools and equipment as may be required, provided the employee possesses the relevant skills and competence to perform such tasks. Where the employee does not possess such skills and competence, appropriate training shall be facilitated.

35.3 Any direction issued by the employer pursuant to sub-clauses 35.1 and/or 35.2 shall be consistent with the employer's responsibility to provide a safe and healthy working environment for employees, and the employer's duty of care to residents and/or clients.

35.4 Where an employer has decided there is no longer a requirement for a Deputy Director of Nursing or an Assistant Director of Nursing to be appointed in a workplace, the employer shall ensure that the workload previously performed by that nurse manager is adequately allocated to other management employees, and that the workloads of all other nurses on the nursing care roster within that workplace will remain consistent with their substantive role, duties and classifications.

Clause 1.3(a) of Schedule A

1.3 Care Service Employee Grade 2 means (a) Level One.

An employee with 500 hours’ work experience in the industry who works individually or in a team environment, or who has or can demonstrate relevant prior work experience, acceptable to the employer, which enables the employee to work effectively at this level. An employee who works individually or in a team environment is responsible for the quality of their own work and works under limited direct and/or indirect supervision, including compliance with documentation requirements as determined by the employer.

Indicative tasks an employee at this level may perform are as follows:

Care Stream: Provide a wide range of personal care services to residents, in accordance with Commonwealth and State Legislative requirements, and in accordance with the resident’s Care Plan, including:

assist and support residents with medication utilising dose administration aids;

simple wound dressing;

Implementation of continence programs as identified in the Care Plans;

attend to routine urinalysis, blood pressure, temperature and pulse checks;

attend to blood sugar level checks etc. and assist and support diabetic residents in the management of their insulin and diet, recognising the signs of both hyper and hypo-glycaemia;

recognise, report and respond appropriately to changes in the condition of residents, within the skills and competence of the employee and the policies and procedures of the organisation;

assist in the development and implementation of resident care plans;

assist in the development and implementation of programs of activities for residents, under the supervision of a Care Service Employee Grade 3 or above, or a Diversional Therapist.

The Hearing

[10] I heard the matter on 5 June 2018.

[11] At the hearing:

a) the HSU was represented by one of its Industrial Officers, Luke Maroney. Mr Maroney called Jennifer Rieche and Lynette McElligott, both CSE2s, to give evidence. They were cross-examined.

b) Gulong Hostel was represented by Mr Gerard Boyce of counsel. I was satisfied that the matter was invested with sufficient complexity such that I would be assisted in the efficient conduct of the matter if I allowed the Respondent to be represented by a lawyer. Mr Boyce called Fiona Newell, the Respondent’s Care Manager, to give evidence. She was cross examined.

[12] In advance of the hearing the parties filed materials. In coming to this decision I have had regard to the following:

EXHIBIT NO.	DESCRIPTION
A1	Applicant's Outline of Submissions
A2	Witness Statement of Jennifer Susan Rieche Dated 27/04/2018
A3	Minutes Of Meeting Dated 07/03/2018
A4	Witness Statement of Lynette Mcgelliott Dated 26/04/2018
R1	Respondent's Outline of Submissions Dated 14/05/2018
R2	Witness Statement of Fiona Newell Dated 14/05/2018

Background to the dispute

[13] The following matters are either substantially common ground between the parties or not otherwise contested 4:

a) Ms Lynne McElligott and Ms Jennifer Rieche are employees of Gulgong Hotel. Each of the Employees is employed as a CSE2, which is styled in the Respondent’s operation as a Personal Care Attendant (PCA). 5

b) Ms McElligott has been employed by the Respondent for 20 years. 6 Ms Rieche has been employed by the Respondent for four years.7

c) The Employees’ duties at the Respondent include:

(i) assisting residents with washing, showering and dressing; 8

(ii) assisting residents with minor treatments such as drops and creams, 9 and Webster pack medication;10

(iii) assisting residents in tidying; 11

(iv) operating lifters to assist in moving residents; 12

(v) assisting residents with clothing protectors and feeding at breakfast time; 13

(vi) taking notes as to residents’ behaviour and continence, 14 their condition generally and any notable events;15

(vii) assisting residents in toileting; 16

(viii) preparing residents for recreational activities; 17

(ix) assisting residents with clothing protectors and feeding at lunchtime; 18

(x) laundry. 19

d) According to the relevant position description, the Respondent considers that the Employees’ essential functions and responsibilities are:

• Attends to all personal care as documented in the care plan and treatment sheets.

• Administers medication &/or other topical preparations in a competent and safe manner as prescribed by LMO or registered nurse.

• Reports any changes in resident’s condition to RN on duty or Care Management Team Leader and takes instructions from the RN & Care Management Team Leader or Care Manager as given.

• Provides personal care to assist residents to maintain independence and dignity with respect to activities of daily living and lifestyle.

• Provides residents nutrition and hydration in a timely manner

• Ensure resident’s daily care is provided in a dignified manner; resident looks neat and tidy, hair is well groomed, food stains removed from face and clothes.

• Attends to residents’ toileting and pressure areas area.

• Attends to continence care as per the allocated pad system.

• Documents daily in the Progress Notes and charts resident observations.

• Delivery of care in accordance with Duties List relevant for your shift.

• Attend to any other duties or tasks for that shift such as cleaning, laundry or ironing.

• Attends to Resident of the Day Documentation and any other audits required for your shift. 20

e) PCAs employed by the Respondent are required to have completed or be currently undertaking a Certificate III in either Individual Support or Aged Care. 21

f) PCAs employed by the Respondent work under the direction of the Registered Nurse, Care Manager and Care Management Team Leader. 22

g) Registered Nurses employed by the Respondent report to the Care Manager and may have Enrolled Nurses and PCAs report to them. 23 Registered Nurses are required to be registered with the NSW Nurses and Midwives Board or eligible for such registration.24

h) Ms Fiona Newell is the Respondent’s Care Manager and is also a Registered Nurse. 25 Ms Newell is the most senior Registered Nurse in the Respondent’s hierarchy and the manager of the other Registered Nurses.26 She has 25 years’ experience in nursing27 and has been a Registered Nurse since 1994.28

i) The Respondent has malpractice insurance which covers the Registered Nurses and PCAs in their employment at the Respondent to the value of $20 million. 29

j) The Respondent’s facility is located three minutes from Gulgong Multi-Purpose Service, which is also known as Gulgong Hospital. 30

k) The Respondent has capacity for 25 residential aged care residents. 31 Five of the Respondent’s residents currently have insulin-controlled diabetes.32

l) The Respondent seeks to require CSE2s to administer insulin via insulin pen to residents who have insulin-controlled diabetes and cannot self-administer such insulin via insulin pen themselves when the Registered Nurse is not on shift. There is only one resident, Mr Petchell, who falls in these circumstances. 33

m) Of the remaining four residents, one (Ms Ellery) is able to administer her own insulin. 34

n) The remaining three (Mr Hoskin, Mr Marshall and Ms Griffith) are not able to administer their own insulin. 35 The Respondent engages Registered Nurses who, as part of their duties, administer insulin to those residents.36

o) The Employees have been required to and are competent to perform BSL checks on residents. 37 The Employees have never been required to administer or inject insulin into residents..38

p) The proposed method for PCAs to administer insulin involves two employees of the Respondent. 39 One staff member will have the current medication chart and signing sheet.40 The other will be witness to the process.41 The staff member performing the administration of insulin is required to follow the following steps:42

(i) Identification of the resident and confirming the correct resident is selected;

(ii) Identification of the correct insulin pen for the resident;

(iii) Obtaining the insulin pen from the medication room;

(iv) Identification of and cross checking the insulin;

(v) Performing a BGL check and ensuring levels are within range;

(vi) Recording BGL result on the sign sheet, dialling the insulin pen to the correct dosage;

(vii) Checking with the other staff member and the resident that the dialled amount is correct;

(viii) Pushing the dial into the correct location, signing and that the medication was delivered, disposing of the sharps safely, and returning the pen to the medication room.

q) The Respondent has never required the Employees to attend any training with respect to diabetes education or insulin management. Nor has it made it mandatory for CSE2s to attend relevant training on diabetes and diabetes management (including the operation of an insulin pen). 43

r) The Respondent can deploy Registered Nurses on shift or on call to administer insulin if such Registered Nurses are available. 44

s) CSE2s have a busy work schedule. 45 No risk assessment was done with respect to the risk that this busy work schedule could cause.46

Principles of interpretation

[14] The principles relevant to the task of construing an enterprise agreement were summarised in Golden Cockerel 47 as follows:

“1. The [Acts Interpretation] Act does not apply to the construction of an enterprise agreement made under the [FW] Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(b) notorious facts of which knowledge is to be presumed;

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.

10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”

[15] In 2017 a Full Bench of the Commission modified the above summary in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Ltd (Berri). 48 The Full Bench made the following observations:

“[41] The construction of an enterprise agreement, like that of a statute or a contract, begins with a consideration of the ordinary meaning of the relevant words. The disputed words must be construed in the context of the agreement as a whole. The process of interpretative analysis focusses upon the language of the agreement itself. In Amcor Limited v CFMEU,49 Gleeson CJ and McHugh J described the process in the following terms: ‘[t]he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...’.50 Or, as Kirby J put it in the same case, ‘[i]nterpretation is always a text-based activity’. 51

….

[44] There is considerable force in the Appellant’s contention that, as a general principle, all words in an enterprise agreement must prima facie be given some meaning and effect. It would seem to follow that the inclusion of a laundry allowance in Appendix 3 of the 2014 Agreement should not be regarded as superfluous or insignificant. Such an approach accords with the principles of statutory construction, 52 and, as a general proposition, the principles developed in the general law in the context of the interpretation of statutes are applicable to the interpretation of enterprise agreements. As the Full Bench observed in Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers’ Union:53

‘Australian Paper made the submission that no principle of statutory construction has any application to the interpretation of enterprise agreements, and relied upon the proposition stated in Golden Cockerel that the Acts Interpretation Act 1901 (Cth) does not apply to the construction of enterprise agreements in support of that submission. The submission is rejected. It does not follow from the fact that enterprise agreements are not instruments to which the Acts Interpretation Act applies that modes of textual analysis developed in the general law in the context of the interpretation of statutes are incapable of application to enterprise agreements. While it undoubtedly remains necessary in interpreting a particular instrument to pay attention to the peculiar characteristics of that instrument, it is equally the case that there has been a convergence in the approach taken to the interpretation of statutes, agreements and other types of instruments - in particular, in the emphasis on the objective ascertainment of the instrument’s purpose and the move from textual to contextual interpretation. Additionally, many of the grammatical aides to the interpretation of statutes are equally applicable to other types of instruments. In the High Court decision in Royal Botanic Gardens and Domain Trust v South Sydney City Council, Kirby J said “... it would be indefensible for this Court, without good reason, to adopt a different approach in the ascertainment of the meaning of contested language in a contract from the approach observed in respect of legislation”. We therefore do not consider that Golden Cockerel should be taken as an exhaustive statement of the means by which the text of an enterprise agreement might be construed.’ (references omitted)

….

[46] There is a long line of authority in support of the proposition that a ‘narrow or pedantic’ approach to the interpretation of industrial instruments (such as enterprise agreements) is to be avoided, 54 and that ‘fractured and illogical prose may be met by a generous and liberal approach to construction’.55 A consequence of such an approach may be that some principles of statutory construction have less force in the context of construing an enterprise agreement. For example, in Shop, Distributive and Allied Employees’ Association v Woolworths Limited,56Gray ACJ held that the presumption that a word used in one provision of a statute has the same meaning when it is used in another provision of the same statute, applied with less force in the context of an enterprise agreement:

‘Typically, such agreements are the product of hard negotiation, in which wording of particular clauses is often agreed without reference to other provisions of the same document. Provisions are commonly transmitted from one agreement to the next in a series, without regard to whether their terminology sits well with the words used in newly adopted terms. The use of other agreements, and awards, as precedents can often result in the borrowing of provisions, again without regard to whether the words used in them are consistent with the rest of the agreement under consideration. For these and other reasons, consistency will often be absent. It is easy to see that the same word can be used in different provisions with different meanings.’ 57

[47] We acknowledge that the fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. But it is also relevant that the instrument being interpreted in these proceedings is an enterprise agreement made pursuant to Part 2-4 of the FW Act and, as observed by White J in National Tertiary Education Union v La Trobe University, 58it may be inferred that such agreements are intended to establish binding obligations:

‘The manner of making such agreements is subject to detailed prescription and their operation is contingent upon approval by the Fair Work Commission, the obtaining of which is itself a matter of detailed prescription. In my opinion, it is natural to suppose that parties engaging in this detailed process intend that the result should be a binding and enforceable agreement. To my mind, that is an important matter of context when approaching the construction of [the disputed clause in the agreement]’. 59

[48] Of course his Honour’s observation does not mean that an enterprise agreement may not include ‘matters which are in the nature of statements of aspiration or commitment and not themselves intended to be enforceable obligations or entitlements’ 60 – so much is clear from Reeves v MaxiTRANS Australia Pty Ltd.61 The fact that the 2014 Agreement is an enterprise agreement made pursuant to Part 2-4 of the FW Act is also relevant to the weight to be given to evidence of prior negotiations, a point to which we shall return shortly.

….

[60] It seems to us that there is an ambiguity in the 2014 Agreement regarding the laundry allowance referred to in Attachment 3. In particular, it is unclear in what circumstances the amount specified is to be paid and to whom. The frequency with which any such payment is to be made is also unclear.

[61] Having identified ambiguity it is permissible to consider evidence of the surrounding circumstances as an aid to the task of interpreting the agreement. As Mason J observed in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (Codelfa): 62

‘… evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract where it has a plain meaning.’ 63

[62] The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties and the subject matter of the contract. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations. As Mason J observed in Codelfa:

‘… when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of contract, except insofar as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting.’ 64

[63] As noted in Golden Cockerel, evidence of relevance to the objective framework of facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

[64] As to category (i), evidence of prior negotiations will be admissible – but only for a defined purpose. As Mason J observed in Codelfa:

‘Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.

It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parole evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.’ 65

[65] Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was. So much is clear from the oft-quoted statement of Madgwick J in Kucks v CSR Limited: 66

‘But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’

….

[88] The diversity of interests involved in the negotiation and making of enterprise agreements warrants the adoption of a cautious approach to the admission and reliance upon evidence of positions advanced during the negotiation process. As Rares J recently observed, in Australian International Air Pilots Association v Qantas Airways Limited: 67

‘Substantially, the Act provided that the agreement was a tripartite document between a body of employees, a corporation with numerous officers and an industrial association. The involvement of so many individuals in the formation of the agreement re-emphasises the importance of approaching the construction of that document in accordance with the principle of objectivity. It is important, in doing so, to be cautious and bear firmly in mind the fact that the agreement was formed by a diversity of persons who had sought to protect their differing interests by various formulations of words in it. Those disparate intentions cannot be determinative of the proper construction to be given to the words chosen. In Health Services Union v Ballarat Health Services [2011] FCA 1256 at [79], Gray J said:

“In the days when an award might be negotiated between a union and an employer, and made by consent, the existence of a common understanding between the union and the employer as to the meaning of terms might have had some role to play in their construction. Whatever were the terms of such an agreement, and whatever their meaning was, those terms were imposed upon the employees who became bound by the award. In the current era, most industrial instruments are required to be put to a vote of the employees whose work will be covered by them, before they can be certified or approved so as to become enforceable by statute. The union and the employer who negotiated the terms might have had a common understanding of the meaning of them, but that understanding might not have been shared by all or some of the employees who voted for the operation of the agreement. They may have been entirely ignorant of the common understanding. In those circumstances, the occasions on which it can be said that a party to an agreement who entered into it on a common understanding should not be allowed to resile from that understanding will be rarer than they have been in the past.”’

….

[101] The admissibility of the post-contractual conduct as an aid to the construction of a contract is a somewhat vexed issue, in respect of which no clear line of authority has emerged.

[102] Some early High Court authority permitted the admissibility of post-contractual conduct as an aid to construction. 68 But obiter in more recent High Court judgements tends to support the view that such evidence is inadmissible.69

[103] Further, in Agricultural and Rural Finance Pty Ltd v Gardiner, 70a majority of the High Court adopted the ‘general principle’ that ‘it is not legitimate to use as an aid to the construction of [a] contract anything which the parties said or did after it was made’. Of course, the expression ‘general principle’ is itself somewhat ambiguous, as Campbell JA observed in Franklins Pty Ltd v Metcash Trading Ltd (Metcash):71

‘It might mean that it is a principle that applies in all cases, or that it is a principle that usually applies, though perhaps being subject to exceptions.’

[104] As Allsop P observed in Metcash (at [6]), ‘much ink has been spilt over the last 30 years on this topic’. There is a daunting array of intermediate appellate court judgements on the admissibility of post contractual conduct, 72 but no clear consensus appears to have emerged.

[105] The judgement of Santow J in Spunwill Pty Ltd v BAB Pty Ltd 73gave detailed consideration to whether subsequent conduct may be used as an aid to construction. Spunwill is a significant first instance judgement that has been considered, and cited with approval, in some of the intermediate appellate court judgements which have dealt with this issue. After considering the relevant authorities, Santow J concluded that the use of subsequent conduct as an aid to the construction of a contract:

‘… will be legitimate under the objective theory of contract in the limited circumstances where conduct evidences a clear and mutual subjective intention as to what the contract originally meant.’ 74

[106] In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But, consistent with the view expressed by Santow J in Spunwill, the post-contractual conduct must be such as to found a common understanding – a settled interpretation accepted by the parties.

[107] We also note that in Spunwill 75 Santow J observed that in deciding on the weight to be given to extrinsic evidence of post contractual conduct as part of the surrounding circumstances, it was useful to refer to the following passage from the judgment of Lambert JA in the Canadian case of Re Canadian National Railways and Canadian Pacific Ltd 76:

‘In the case of evidence of subsequent conduct the evidence is likely to be most cogent where the parties to the agreement are individuals, the acts considered are the acts of both parties, the acts can relate only to the agreement, the acts are intentional and the acts are consistent only with one of the alternative interpretations. Where the parties to the agreement are corporations and the acts are the acts of employees of the corporations, then evidence of subsequent conduct is much less likely to carry weight. In no case is it necessary that weight be given to evidence of subsequent conduct.’”

[16] The Full Bench in Berri then modified the summary set out in Golden Cockerel in light of the observations made in the course of our decision.

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding. “

[17] I adopt the Berri principles. Consequently, it is necessary to,

a) begin the analysis with a consideration of the ordinary meaning of the words of the relevant clauses in the Agreement,

b) determine whether the Agreement have a plain meaning,

c) review the text of the Agreement as a whole,

d) not rewrite the Agreement to achieve what might be regarded as a fair or just outcome,

e) (in determining the objective intention of the parties) do so by reference to what a reasonable person would understand by the language used in the Agreement,

f) not adopt an overly technical approach to the interpretation of the Agreement, and

g) not contradict the plain language of the Agreement.

Submissions

[18] On 27 April 2018 the HSU filed an Outline of Submissions as follows,

“OUTLINE OF SUBMISSIONS FOR THE APPLICANT I BACKGROUND

1. The Health Services Union (Union) is an organisation registered in accordance with the Fair Work (Registered Organisations) Act 2009 (Cth). The New South Wales Branch of the Union (Applicant) is covered by the Wenonah, NSWNMA and HSU NSW Enterprise Agreement 2017 - 2020 (Agreement) pursuant to ss 183 and 201 of the Fair Work Act 2009 (Cth) (Act).

2. Gulgong Hostel Association Incorporated (Respondent) is an association incorporated in accordance with the Associations Incorporation Act 2009 (NSW). The Respondent operates an aged care facility in Gulgong, New South Wales and is the employer covered by the Agreement. It employs members of the Applicant.

3. It is relevant to note at the outset that the Agreement is relevantly referred to in the application as the Wenonah, NSWNMA and HSU NSW Enterprise Agreement 2014 – 2017 (2014 Agreement). The 2014 Agreement ceased applying when the Agreement came into operation on 20 March 2018. 77 The Agreement and the 2014 Agreement contain relevantly similar terms with respect to the dispute, subject to some minor formatting differences. As such, the Applicant seeks determination of the dispute in accordance with the Agreement (and not the 2014 Agreement).

4. Pursuant to directions of Commissioner Johns, the Applicant articulated two questions for arbitration by the Fair Work Commission (Commission), those being:

a. Considering cl 35 of the [Agreement], and the duties referred to in the Care Stream of clause 1.3(a) of Schedule A to the Agreement, is it in accordance with the Agreement and otherwise lawful for [Respondent] to direct employees engaged as Care Service Employees Grade 2 to dose and administer insulin to residents? (Applicant Question 1)

b. If the answer to question 1 is yes, is it nonetheless unreasonable to require employees engaged as Care Service Employee Grade 2 by [the Respondent] to dose and administer insulin to residents in circumstances where they do not wish to perform those duties? (Applicant Question 2)

(collectively Applicant Questions)

5. The Applicant submits the Applicant Questions should be answered:

a. Applicant Question 1: No; and

b. Applicant Question 2: Unnecessary to answer (or, to the extent that it is necessary to answer, yes).

6. There was not agreement as to the question or questions which should be articulated for arbitration by the Commission. The Respondent proposed the following question:

Having regard to the terms of the [Agreement], including Schedule A – Employment Classifications and Clause 35 Labour Flexibility and Mixed Functions, does the classification of Care Service Employee Grade 2 under the [Agreement] provide for or extend to employees dialling up an insulin dose in an Insulin Pen and administering such insulin dose to a diabetic resident in accordance with relevant training, practices, policies and/or procedures of the facility and relevant legal and/or legislative obligations (if any)? (Respondent Question)

7. To the extent that the Commission determines it appropriate to answer the Respondent Question, the Applicant submits it should be answered in the following terms: No.

II THE QUESTIONS TO BE ANSWERED

8. At the outset, it is convenient to address the issues as to the questions proffered. The Respondent has foreshadowed that it objects to Applicant Question 2 as beyond jurisdiction. The basis for this is the asserted operation of s 739(5) of the Act.

9. The Respondent’s position appears to be that, in the event that Applicant Question 1 is answered in the Respondent’s favour, then to answer Applicant Question 2 in favour of the Applicant is inherently contrary to the terms of the Agreement.

10. This question was considered by a Full Bench of the Commission in Lloyd v Australia Western Railroad Pty Ltd 78 (Lloyd). In that matter, the Full Bench relied on the reasoning of the Full Court of the Federal Court that:

Section 739(5) does not alter the character of the arbitration which the Commission undertakes under an enterprise agreement … It merely places a limit on the range of arbitrated (but not conciliated, it may be noted) outcomes available to the Commission in those cases in which the parties have agreed that the Commission may arbitrate. 79

11. The Full Bench concluded that s 739(5) ‘does not limit the jurisdiction of the Commission in dealing with a dispute about the terms of an Agreement, but it may impact on the nature of remedy that may be determined.’ 80

12. It is important to note that Lloyd dealt with an enterprise agreement term regarding disciplinary procedures which allowed ‘discretionary responses to alleged misconduct’ and ‘did not provide an absolute right or obligation for the employer to apply a particular disciplinary outcome.’ 81

13. Similarly the terms of the Agreement in question in the present case do not require the Respondent to direct staff in any particular way and there is a residual discretion. The dispute settlement term in the Agreement allows for the Commission to determine a dispute about the exercise of such a discretion.

14. The Respondent Question does not deal with the correct exercise of management discretion and as such the Applicant submits that there would be residual disputation if the Respondent Question were answered in the Respondent’s favour. (Of course, if the Respondent Question or Applicant Question 1 were answered in favour of the Applicant, there would be no residual disputation with respect to discretion.)

15. The Applicant Questions are formulated to deal with all matters in dispute between the Applicant and the Respondent. The answering of Applicant Question 2, if it arises, would resolve the dispute finally.

III APPLICANT QUESTION 1 AND RESPONDENT QUESTION

16. Applicant Question 1 and the Respondent Question are each directed at the proper interpretation of the Agreement with respect to the proposed change in duties.

17. The proper interpretation of the Agreement is to be considered in accordance with the recent decision of the Full Bench of the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 82 (Berri).

18. In Berri, the Full Bench reformulated the principles in Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd 83 (Golden Cockerel) as follows:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

19. These matters are dealt with in turn.

1 Ordinary Meaning of Relevant Words in Context

20. The words around which the dispute is centred are:

Indicative tasks an employee at this level may perform are as follows:

… attend to blood sugar level checks etc and assist and support diabetic residents in the management of their insulin and diet, recognising the signs of both Hyper and Hypo-Glycaemia

21. These words are found, in their immediate context, amongst a list of duties designated as

‘indicative tasks’ for a Care Service Employee Grade 2 (CSE2) in a classification structure in an Appendix to the Agreement.

22. Relevantly, elsewhere in the classification structure are the following classifications:

Care Service Employee Grade 4 means:

Level Two: An employee who is required to deliver medication to residents in residential aged care facilities:

• previously defined as Nursing Homes (as at 31 December 2004) by the Nursing Homes Act 1988 (NSW); or

• in which more than 80% of places are “allocated high care places” as defined in the Aged Care Act 1997 (Cth).

Enrolled Nurse (with Notation) means an Enrolled Nurse registered by the Board as an Enrolled Nurse with the notation “does not hold a Board Approved qualification in medicines administration”. An Enrolled Nurse with notation performs the duties and has the skills of an Enrolled Nurse however is not authorised to administer medication.

Enrolled Nurse (EN) means a nurse enrolled with the Board and is authorised to administer medications. An Enrolled Nurse may be required to lead and/or supervise the work of others.

23. Each of these needs to be read bearing in mind the following provision of the Agreement:

35.1 The employer may direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training

35.2 The employer may direct an employee to carry out such duties and use such tools and equipment as may be required, provided the employee possesses the relevant skills and competence to perform such tasks. Where the employee does not possess such skills and competence, appropriate training shall be facilitated.

24. The Applicant notes, a relevantly identical classification structure and labour flexibility clause was considered by Commissioner Hampton in Southern Cross Care (Broken Hill) Ltd v The Broken Hill Town Employees' Union 85 (Broken Hill). That case dealt with the administration of non-insulin medications. The Commissioner in Broken Hill matter summarised the role of a CSE2 as follows:

The CSE2 classification contemplates employees working under general or limited supervision (of a CSE3 or higher - including potentially nurses and management) and providing a wide range of personal care services to residents including assisting and supporting residents with medication utilising medication compliance aids, simple would dressing, attending to routine urinalysis, blood pressure, temperature and pulse checks, and general monitoring of residents including those with diabetes. 86

25. The Applicant submits that the ordinary words of the Agreement accords with a limitation to ‘general monitoring’ in accordance with the approach of Commissioner Hampton, even considering the labour flexibility term.

26. Specific reference elsewhere in the Agreement to the delivery and administration of medication also supports the contention that those terms are not intended to be implied into the CSE2 classification with respect to residents with diabetes.

27. In any case, it is submitted the cl 35 of the Agreement has a limiting, as opposed to broadening, effect on the term in the classification. Clause 35, first, limits the directions the Respondent can give its employees to ‘such duties as are within the limits of the employee's skill, competence and training.’ This does not support a broad or unrestrained reading of the Respondent’s ability. Rather, the discretion which can be exercised by Respondent management is confined by cl 35.1.

28. Clause 35.2, similarly, has a limiting effect. Directions to use ‘tools and equipment’, such as an insulin pen, are subject to specific control in accordance with the Agreement as to the relevant employee’s ‘skills and competence’. It does not follow that just because two one hour training session have been provided that relevant employees will have the ‘skills’ or ‘competence’ to complete certain tasks.

29. Clause 35.3 specifically limits the Respondent’s discretion to ensure compliance with:

a. The Respondent’s responsibility to provide a safe and healthy working environment for employees; and

b. its duty of care to residents and/or clients.

30. There is evidence before the Commission that would allow the Commission to determine that the direction to administer insulin is causing stress to certain employees. The Respondent has a duty of care to ensure the health and safety of its employees, 87 which includes their psychological health.88 The creation of stress is inconsistent with this obligation to provide a safe and health working environment.

31. The Commission would also want to be positively satisfied that the practice does not create a risk to the Respondent’s residents. The (lay) opinion of the employees in evidence supports a finding that such risk is real.

32. As such, even if (contrary to the Applicant’s submission) the Schedule to the Agreement allowed on its plain reading for the impugned directions to be made, in the context of the Agreement as a whole and cl 35 in particular, the direction cannot be made.

2 Task of Interpreting

33. The Applicant relies on its above submissions with respect to item 1.

3 Common Intention to be Identified Objectively

34. The Applicant relies on its above submissions with respect to item 1.

4 Part 2-4 of the Act

35. The Applicant relies on its above submissions with respect to item 1.

5 Making of the Agreement

36. The Applicant relies on its above submissions with respect to item 1.

6 Modes of Textual Analysis

37. The Applicant relies on its above submissions with respect to item 1.

7 Ambiguity

38. The Applicant submits that a plain reading of the Agreement, as per item 1, is available to the Commission. To the extent that the Commission is not satisfied that such a plain reading is available, the resolution of the ambiguity is discussed below.

8 to 14 Plain Meaning and Evidence as to Surrounding Circumstances

39. The Applicant relies on item 7 above and makes no submission as to the surrounding circumstances.

15 Post Agreement Conduct

40. The Applicant submits that, in circumstances where the entire nominal term of the 2014 Agreement elapsed, there should be a firm inference drawn from the Respondent’s non- direction of the relevant employees to administer insulin until the present dispute arose.

41. Indeed, the terms in dispute were also present in the Wenonah, NSWNA & HSU Enterprise Agreement 2009 which applied to the Respondent from early 2010. It was not until March 2018 at the earliest that the impugned direction came into place. The over eight years of relevantly unchanged industrial arrangements must, in the Applicant’s submission, speak to more than simply mutual inadvertence or lack of complaint. Rather it speaks to an understanding as to the settled role of CSE2 employees at the Respondent.

IV APPLICANT QUESTION 2

42. Applicant Question 2 is directed at the appropriateness of the direction to employees that they are required to dial up and administer insulin to residents. This question only arises if the Commission has resolved Applicant Question 1 (or the Respondent Question) in favour of the Respondent. If the Commission resolves Applicant Question 1 (or the Respondent Question) in favour of the Applicant, Applicant Question 2 does not arise and the dispute is resolved finally.

43. The starting point for consideration of Applicant Question 2 is Australian Federated Union of Locomotive Enginemen v State Rail Authority (NSW) 89 (XPT):

It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. 90

44. More recently, a Full Bench of the Commission in Lend Lease Project Management and Construction (Australia) Pty Limited v Construction, Forestry, Mining and Energy Union 91 (Lend Lease) noted:

It may be accepted that the above principle is one which should be taken into account and given significant weight in the exercise of an arbitral discretion concerning whether the Commission should intervene in relation to a lawful business management decision by an employer. However to elevate the XPT Case principle into an immutable rule applicable to any employer decision is to overstate the effect of the principle. 92

45. The Applicant acknowledges that the authorities in XPT and Lend Lease speak to an arbitral to interfere with managerial prerogative. The test is one of industrial injustice or unreasonableness.

46. In the context of unfair dismissal proceedings, the Commission observed that:

What is reasonable will depend upon all the circumstances including the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument governing the relationship. A policy will be reasonable if a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy. That is, a policy will only be unreasonable if no reasonable employer could have adopted it. A policy will not be unreasonable merely because a member of the Commission considers that a better or different policy

may have been more appropriate. 93

47. The Applicant submits that industrial injustice manifests in the present case. First, Ms McElligott’s evidence is that she has worked for the Respondent for a lengthy period of time and never been required to do the particular duties in question. Second, she gives evidence of the duties she is required to undertake in the day and that she is constantly busy already. Each Ms McElligott and Ms Rieche note that this is a new and more advanced duty that is not accompanied by any additional remuneration. Each of these matters speaks to an unjust outcome.

48. Unreasonableness also manifests in the present case. While it is not the Commission’s roles to choose between various options or policies, unreasonableness can be made out in circumstances where a smaller change could have been made instead of the disputed change. Various such alternatives are available on the evidence.

49. The Applicant submits that the Respondent’s change in practice is the most burdensome change on the most people. That itself is inherently unreasonable. Rather, they could have marginally changed the rostered hours of Registered Nurses it engages, or made use of its on call facilities (which would mean no change to the status quo prior to the dispute arising).

50. Unreasonableness is also manifested in the impacts that the dispute and the proposed changes have on its employees.

V DISPOSITION OF THE DISPUTE

51. The Applicant submits the dispute should be disposed of by the Commission answering the Applicant Questions as follows:

a. Applicant Question 1: No; and

b. Applicant Question 2: Unnecessary to answer (or, to the extent that it is necessary to answer, yes).

[19] On 14 May 2018 the Respondent filed an Outline of Submissions as follows,

“Overview

1. These submissions are made on behalf of the Respondent, Gulgong Hostel Association Incorporated t/as Wenonah Lodge and Wenonah Community Care (Wenonah}.

2. On behalf of two of its members, the Health Services Union - NSW Branch (the HSU) alleges employees employed by Wenonah in the role (ie classification) of Care Services Employee Grade 2 (CSE2) are not required to assist relevant residents in the provision of insulin under the Wenonah, NSWNMA and HSU NSW Enterprise Agreement 2014-2017 and/or the Wenonah, NSWNMA and HSU NSW Enterprise Agreement 2017-2020 (the EBA). Both classifications structures under each enterprise agreement are the same.

3. The dispute between the parties is being arbitrated by the Fair Work Commission (the Commission) pursuant to the terms of Clause 44 of the EBA. There is no issue between the parties as to the Commission's jurisdiction to hear and resolve this dispute.

Onus

4. It is the HSU that alleges the status quo (as to existing CSE2 employees) should be altered. The HSU (as Applicant), therefore carries the onus to prove and satisfy the Commission that its assertions should be upheld.

Construction of Industrial Instruments

5. The principles which govern the interpretation of industrial instruments are reasonably well settled. 94 The task begins with a consideration of the nature and ordinary meaning of the words used, read in the context of the instrument as a whole, as well as taking into account any relevant statutory or historical context. The words should not be interpreted in a strict, technical, narrow or pedantic fashion because the authors of the document may have drafted the words in the context of custom and practice in a particular industry or enterprise. A court or tribunal should endeavour to give effect to the intention of the award maker or parties, provided that the words in the instrument can reasonably be so interpreted. Recourse to extrinsic material is not dependent upon a finding that the relevant words are unclear, ambiguous or raise uncertainty.

Statutory context

6. The EBA was approved by the Commission on 13 March 2018, to commence operation on 20 March 2018, with a nominal expiry date of 30 June 2020. 95 For the purposes of the better off overall test, the EBA was relevantly assessed against the modern award titled the Aged Care Award 2010 (the AC Award).

7. At this juncture, it is appropriate to highlight the judgement of Burchett J (with whom Drummond J agreed on this point) in Short v FW Hercus Pty Ltd (1993) 50 FCR 511 where his Honour said "the circumstances of the origin and use of [a] clause are plainly relevant to an understanding of what is likely to have been intended by its use." 96 In supporting this proposition, his Honour referred to the dictum of Isaacs J in Australian Agricultural Company Limited v Federated Engine-driver's and Firemen's Association of Australasia (1913) 17 CLR 261 (at 272) in which Isaacs J cited Lord Halsbury LC as saying: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it." Burchett J then concluded that:

"Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. 'Sometimes', McHugh J said in Saraswati v The Queen (1991) 172 CLR 1(at 21), the purpose of legislation 'can be discerned only by reference to the history of the legislation and the state of the Jaw when it was enacted.' Awards must be in the same position." 97

The duties and responsibilities of CSEs under the EBA

8. A review of the various grades of Care Service Employee (CSE) under the EBA provides that CSEs are graded from New Entrant up to Grade 5. Mandatory or essential elements of each CSE Grade are as follows:

(a) CSE New Entrants have less than 500 hours work experience. They perform basic duties under direct supervision.

(b) CSE1s work individually or in a team under limited supervision within established guidelines. In some situations detailed instructions may be necessary.

(c) CSE2s work individually or in a team environment, are responsible for the quality of their own work, and are subject to general supervision. Relevantly, CSE2s "assist and support residents with medication utilising dose administration aids"; "attend to blood sugar level checks etc. and assist and support diabetic residents in the management of their insulin and diet, recognising the signs of both hyper and hypo-glycaemia"; recognise, report and respond appropriately to changes in the condition of residents, within the skills and competence of the employee and the policies and procedures of the organisation"; and "assist in the development and implementation of resident care plans".

(d) CSE3s hold either a Certificate Ill in Aged Care Work or other appropriate qualifications or experience "acceptable to the employer'' and are "designated by the employer as having the responsibility for leading and/or supervising the work of others" or have "been designated by the employer as having overall responsibility for a particular function within the residential aged care facility". Employees at this level may be required to plan, direct, and train staff and comply with documentation requirements as determined by the employer and assist in the development of budgets. They work under minimal supervision.

(e) CSE4s (Level 1) hold either a Certificate IV in Aged Care Work or other appropriate qualifications/experience "acceptable to the employer'' and are "required to act on them" and are "designated by the employer as having the responsibility for leading and/or supervising the work of others in excess of that required for a CSE3". They work under minimal supervision. (my emphasis)

(f) CSE4s (Level 2) "must hold" the following qualifications: Certificate Ill in Aged Care Work (CHC30102) and Certificate IV in Aged Care Work (CHC40102) and medication module "Provide Physical Assistance with Medication" (CHCCS303A) or other appropriate qualifications acceptable to the employer. They may be required to perform the duties of a CSE4 (Level 1). (my emphasis)

(g) CSE5s have responsibility for the supervision of the care service. They may be required to exercise managerial functions (eg Hostel Supervisor).

9. The foregoing mandatory descriptors set the classifying qualities of each CSE Grade, with indicative tasks following. The fact that a CSE Grade sets out "indicative tasks" does not mean that the performance of an indicative task establishes the requisite CSE Grade, because in any event the indicative task must broadly satisfy the CSE Grade description.

The duties and responsibilities of CSE2s at the workplace

10. In respect of the duties of responsibilities of relevant CSE2s at the workplace, Wenonah relies upon the Witness Statement Ms Fiona Newell, Care Manager and Registered Nurse (RN).

11. On the issue of supervision by the Care Manager or RNs, the findings of Deputy President Sams in Transport Workers' Union of Australia v Toll Dnata Airport Services (2012) 223 IR 415 are pertinent (at [55]):

"Given the above definitions, it does seem to me to be very difficult to sustain an argument that employees who are located 3-4 km from their direct supervisors, are within the immediate vicinity of the persons who are overseeing them. Thus, while the adjective 'immediate' might not strictly apply to the waste and water work here in dispute, the word must be read in conjunction with 'supervision'. When viewed in this light, the force of Mr Magee's argument as to the actual nature of the supervision, becomes obvious. There can be no doubt that, for all practical purposes, the waste and water employees are under the oversight and direction of the Ramp Supervisors. Any problems, such as changed bay allocation or other directions from Virgin's operations, are not decisions undertaken independently by the employees themselves in the course of their duties; rather they follow the directions of others in the performance of these duties. In my view, this is a fundamental difference to working 'without immediate supervision'. In any event, I am bound to follow the agreement interpretation principles (referred to earlier) which require the Tribunal to consider the words in their context, and not in isolation. In doing so, I am unable to agree with the Union's strict literal approach to the interpretation of the words, 'without immediate supervision' as applying to the work in dispute."

Issues and questions concerning the dispute

12. The question posed by the Respondent to resolve this dispute is

"Having regard to the terms of the Wenonah, NSWNMA and HSU Enterprise Agreement 2017-2020, including Schedule A- Employment Classifications and Clause 35 Labour Flexibility and Mixed Functions, does the classification of Care Service Employee Grade 2 under the Enterprise Agreement provide for or extend to employees dialling up an insulin dose in an Insulin Pen and administering such insulin dose to a diabetic resident in accordance with relevant training, practices, policies and/or procedures of the facility and relevant legal and/or legislative obligations (if any)?"

13. It is submitted that in order to answer this question, the following questions require findings by the Commission:

(a) Is administration of Insulin to residents (drawing up and injections) (the practice) part of CSE2 duties under EBA? The Respondent submits that it is on the express terms of the EBA

(b) What are the key components of the practice?

(c) What training has been provided to relevant employees in respect of the practice and mediation administration more generally?

(d) What policies and procedures are in place around practice?

(e) Is Insulin part of resident/s normal medication each day/week? (f) Is the practice done during an emergency?

(g) How is practice supervised and administered? When are RNs on duty?

What are staffing ratios on each shift? Is there external or remote support to CSE2s in respect of the practice?

(h) Is the practice otherwise unlawful under legislation or regulation? (i) Is the practice contrary to relevant guidelines?

(j) What is liability (civil or criminal) of employees who engage in the practice? Note provisions of the Employees Liability Act 1991 (NSW).

(k) What are the merits of the practice (ie What happens if a resident does not receive their Insulin? What are the genuine alternatives to the practice? Call in an RN? Have a resident's relative attend to administer insulin?)

14. In addition to the case law referred to herein, the Respondent will be relying upon the following cases: Southern Cross Care (Broken Hill) Ltd v The Broken Hill Town Employee's Union [2015] FWC 803, Adelaide, 8 April 2015, Hampton C (at [149]); lnna Grabovsky v UPA of NSW [2015] FWC 2504, Sydney, 10 April2015, Lawler VP; (on appeal) /nna Grabovsky v UPA of NSW [2015] FWCFB 3926, Sydney, 25 June 2015, Hatcher VP, Kovacic DP, Johns C (at [24]).

Conclusion

15. The HSU has failed to prove its case (or its claims in these proceedings), especially when one has regard to the natural and ordinary meaning of the terms of the CSE2 classification.

16. It is submitted that the Respondent's evidence as to the duties of CSE2s at the workplace reflect the unambiguous mandatory and indicative tasks of CSE2s as set out in the EBA. On that basis, the claim that CSE2s are unable to assist residents with their insulin regime, or are able to otherwise individually or collectively refuse such duties or tasks, ought be dismissed. The EBA contains no such stipulations.

17. The Respondent will further develop these submissions, on the law and the evidence, orally at the hearing.”

[20] On 12 June 2018 the HSU filed Final Submissions as follows,

“I BACKGROUND

1. On 27 April 2018 the Applicant filed an Outline of Submissions 98 in accordance with the directions of Commissioner Johns made on 13 April 2018. The Applicant continues to rely on that outline of submissions.

2. On 5 June 2018 the Applicant called evidence from two employees of the Respondent.

Ms Lynette Ann McElligott and Ms Jennifer Susan Rieche each swore to the truth of written witness statements 99 and were cross examined by counsel for the Respondent.

3. The Respondent called evidence from Ms Fiona Newell. Ms Newell relied on a witness statement 100 and a bundle of documents comprising attendance records at training sessions and a competency document Ms Newell adapted from a precedent from Moving On Audits.101 Ms Newell was cross examined by the Applicant.

4. During the course of the hearing, the Commission called for two sets of documents to be provided, namely competency assessments for insulin administration regarding the employees of the Respondent, 102 and a document evidencing an audit being undertaken by the Respondent as to the medication competencies of care staff in late 2017.103

5. In accordance with directions of the Commission, on 8 June 2018 the former category of documents (Called-For Competencies) was filed and served. On 8 June 2018 the Respondent, in accordance with the same direction, filed and served a document purportedly in compliance with the second category of documents (Purported Called-

For Audit Document).

II THE EVIDENCE

A Ms McElligott

6. Ms McElligott has worked for the Respondent for 20 years. 104 She gives evidence, which was unchallenged in cross examination, that it has never been a part of her duties to administer insulin.105

7. Ms McElligott outlines the average schedule for the day. 106 The schedule is busy.107

8. The extent of the training that has been provided to Ms McElligott is two one hour training sessions. 108 In response to questioning from the Commission, Ms McElligott stated that she has asked further questions of Ms Newell about areas of concern. The answer received from Ms Newell is unsatisfactory. In particular, the following exchange is noteworthy:

Commissioner: You've had this training from Ms Newell. You've had the training from the dietician. What more training do you need in order to make you feel comfortable doing this?

McElligott: I would like some training on for instance if a person was sick overnight, if their levels are down we know how to get them up quickly. Do we give them a meal before, what are the things that can affect a person's diabetes - that kind of area on a resident.

Commissioner: Right - did you ask those questions of Ms Newell?

McElligott: Yes, I have asked those questions of Ms Newell.

Commissioner: What's her answer been?

McElligott: We're doing further education with the diabetes educator. 109

…

Commissioner: What - I'm still trying to understand what questions were left unanswered for you?

McElligott: The questions left unanswered for me were about diabetes more than the insulin pen, the winding of the pen and the actual doses of insulin and the parameters. I wanted to know more about actual diabetes.

Commissioner: Then did you go and do any reading up about that?

McElligott: Yes, I have done some reading on it.

Commissioner: Yes - what questions remain unanswered for you after your research?

McElligott: The questions mainly are concerning the resident and the changeover of our shifts, what could have happened, were they ill through the night, were they - - -

Commissioner: But surely - you get handover notes, don't you?

McElligott: Yes, we do.

Commissioner: Yes?

McElligott: But that is the thing I don't know, if the resident has been sick, if they have been vomiting - does that affect their BSL reading that may be in the parameters but they're still not well?

Commissioner: Right - did you ask that of Ms Newell? That's a very good question. Did you ask that question of Ms Newell?

McElligott: We had a conversation last week, Fiona and I, about some of these concerns, yes.

Commissioner: Yes, and did she give you the answers you needed?

McElligott: She gave me some information, yes, she did.

…

Commissioner: Sitting there today, what questions remain unanswered for you?

McElligott: The question now I would have is that is it something that a personal carer should actually do, given that RNs have always done the insulin and RNs get PCs to check it with them. We're now - we've just got two PCs doing it, which haven't got the clinical training or the knowledge that our RNs have. 110

9. Ms McElligot’s evidence demonstrates shortcomings in the education. While Ms McElligott appropriately conceded her ability to perform the actions required of her, 111 the level of education offered by the Respondent has been insufficient to allow her to do so confidently.

10. Ms McElligott attests to fears relating to a ‘risk that something could go wrong’ and that ‘[r]esidents could die.’ She also attests to concerns relating to the effects mistakes could have on the community and the Respondent. 112 She raised those concerns also in cross examination.113 The genuineness of those concerns was unchallenged in cross examination.

B Ms Rieche

11. Ms Rieche has worked for the Respondent for four years and in the aged care industry for eight years prior to that. 114

12. Ms Rieche works on both morning and afternoon shifts. She gives unchallenged evidence about the current structure of each of those shifts. 115 She gives further unchallenged evidence that she has never been required to dial up or administer insulin.116

13. Like Ms McElligott, Ms Rieche concedes that she understands the policies and procedures. 117 However, Ms Rieche expresses that she considers insulin to be high risk,118 and that she is underqualified.119 Ms Rieche has fears that something could go wrong, including that a resident could die.120 The genuineness of these fears was not challenged in cross examination.

14. This fear is against the background of her limited training. It was not contested that Ms Rieche’s training was limited to one session with Ms Newell and one session with a Dietician. 121 The fears expressed by Ms Rieche are reasonable in the circumstances of the limited training.

C Ms Newell

15. The Commission should treat the evidence of Ms Newell with caution. Ms Newell’s evidence is characterised by a willingness to exaggerate matters she considers will assist the Respondent’s case. When weighed against more objective evidence, certain matters can be seen to be plainly incorrect. 122

2. The following submissions set out Wenonah’s answers to the two articulated questions adopted by the Commission. These submissions are to be read and considered in conjunction with the Respondent’s Outline of Opening Submissions dated 14 May 2018. 168

Question 1: Considering cl 35 of the Agreement, and the duties referred to in the Care Stream of clause 1.3(a) of Schedule A to the Agreement, is it in accordance with the Agreement and otherwise lawful for Wenonah to direct employees engaged as Care Service Employees Grade 2 to dose and administer insulin to residents?

3. The central task of the Commission in resolving this dispute is to interpret the words set out under clause 1.3(a) of the Agreement in respect of the CSE2 classification and its scope of duties. Despite the urgings of the HSU, such words are not to be interpreted in a strict, technical, limiting, narrow or pedantic fashion. As Commissioner Hampton correctly states in Southern Cross Care (Broken Hill) Ltd v The Broken Hill Town Employees’ Union [2015 FWC 803] (the SCC decision), at [129]:

“Consistent with the approach discussed earlier in this decision, the provisions of the classification structure are not to be applied in a narrow or pedantic manner. They are also be interpreted in the context in which they were developed, reflecting the needs and circumstances of the employer and the employees in the sector and enterprise where they were developed and applied.”

4. In its Form 10 Dispute Application (dated 27 March 2018), the HSU does not assert that relevant employees are incorrectly classified under the Agreement, or that such employees ought receive a higher rate of pay under the Agreement. Such matters are not before the Commission for determination. Rather, the HSU simply asserts CSE2s are prohibited from assisting relevant residents in the management of their diabetes by way of insulin pen. According to the HSU, the words of the Agreement do not extend to assisting diabetic residents with an insulin pen. Wenonah contends otherwise.

5. Item I of Schedule A to the Agreement states that “the following employment classifications and definitions apply to this Agreement” (my emphasis).

6. Clause 1.3(a) of Schedule A of the Agreement reads:

“1.3 Care Service Employee Grade 2 means:

(a) Level One. An employee with 500 hours’ work experience in the industry who works individually or in a team environment, or who has or can demonstrate relevant prior work experience, acceptable to the employer, which enables the employee to work effectively at this level. An employee who works individually or in a team environment is responsible for the quality of their own work and works under limited direct and/or indirect supervision, including compliance with documentation requirements as determined by the employer.

Indicative tasks an employee at this level may perform are as follows:

Care Stream: Provide a wide range of personal care services to residents, in accordance with Commonwealth and State Legislative requirements, and in accordance with the resident’s Care Plan, including:

• assist and support residents with medication utilising dose administration aids;

• simple wound dressing;

• implementation of continence programs as identified in the Care Plans;

• attend to routine urinalysis, blood pressure, temperature and pulse checks;

• attend to blood sugar level checks etc. and assist and support diabetic residents in the management of their insulin and diet, recognising the signs of both hyper and hypo-glycaemia;

• recognise, report and respond appropriately to changes in the condition of residents, within the skills and competence of the employee and the policies and procedures of the organisation;

• assist in the development and implementation of resident care plans;

• assist in the development and implementation of programs of activities for residents, under the supervision of a Care Service Employee Grade 3 or above, or a Diversional Therapist.

(my emphasis)

7. The starting point is that CSE2s “provide a wide range of personal care services to residents”.

8. In the SCC decision, Commissioner Hampton, in interpreting a very similar classification structure under the Southern Cross Care enterprise agreement, in the context of a residential aged care facility (Hostel) like Wenonah, after noting that “indicative tasks” are not ‘exclusive’ as to the duties to be performed by CSE2s, found that CSE2 duties essentially extend to “generally anything the resident would otherwise do in their own home, but now need assistance”. 169 It is submitted that the same conclusion is appropriate in this case, in that Commissioner Hampton’s interpretation cannot be said to be in error, or otherwise plainly wrong.

9. The fact that the use of an insulin pen to assist residents in the management of their diabetes is “in accordance with a resident’s Care Plan” is not in dispute. 170

10. The HSU has identified no Commonwealth or State legislative requirements that prohibit personal carers assisting a resident in the management of their diabetes via the use of an insulin pen. That is because there are no such legislative prohibitions. Rather, on the HSU evidence, the highest the HSU case gets is that two employees do not want to and/or are not comfortable in using an insulin pen. Such subjective views cannot change and do not alter the plain and ordinary meaning of words such as:

(a) “assist and support residents with medication utilising dose administration aids”; and

(b) “attend to blood sugar level checks etc. and assist and support diabetic residents in the management of their insulin and diet, recognising the signs of both hyper and hypo-glycaemia” (my emphasis)

11. On any possible reading of (a) or (b), the use of a dose administration aid (in the form of an insulin pen) to assist and support diabetic residents in the management of their insulin falls with the words set out under clause 1.3(a) of the Agreement, both generally (“wide range of personal care services to residents”) and specifically (“utilising dose administration aids” and “assist and support diabetic residents in the management of their insulin”).

12. Wenonah takes issue with the implied assertion in Question 1 that CSE2s use a level of judgement in clicking the numbers on the insulin pen to draw an insulin dose for a resident. The relevant “dose” is mandated by the resident’s Care Plan, ie as drafted by the treating Medical Practitioner and the Registered Nurse. It was accepted by both HSU witnesses that there is (and they have) no issue with checking or monitoring a resident’s blood glucose levels (BGLs) via finger pricking. There are essentially only two outcomes when a BGL is checked by a CSE2. Firstly, the BGL range is that identified in the Care Plan, and the relevant insulin (numbered) dose is clicked through the insulin pen (dose administration aid) and given to the resident (to self- administer or assist with insulin delivery). Secondly, in the alternative, the BGL range is not that identified in the Care Plan, and the treating Medical

Practitioner and/or the Registered Nurse is/are contacted.

13. It is submitted that the only conclusion (or answer) in respect of Question 1 is that it is directly in accordance with the Agreement, and otherwise lawful (ie not contrary to any Commonwealth or State legislation), for Wenonah to direct employees engaged as CSE2s to dose and administer insulin to residents via insulin pen. Such duties fall squarely within the words, and the scope of the words, in respect of CSE2 duties contained in clause 1.3(a) of Schedule A of the Agreement.

Question 2: If the answer to Question 1 is ‘YES’, is it nonetheless unreasonable to require employees engaged as CSE2s by the Respondent to dose and administer insulin to residents in circumstances where they do not wish to perform those duties?

14. Ms Rieche and Ms McGelliott gave various reasons as to why it is that they either do not want, or it is allegedly unreasonable for them, to assist residents with the management of their diabetes via the use of an insulin pen. Such reasons included: unknown variables, 171 outside the scope of employment,172 “I don’t feel I want to perform this procedure”,173 “I’m not confident to make clinical decisions”,174 “I have refused to do it because my union has advised me not to touch them”,175 It is high risk and something could go wrong (especially when rushing),176 It is the role of an enrolled nurse,177 I am not comfortable in doing it,178 I have not had training or experience in it,179 I have not done a competency assessment on it,180 there is the potential for the diminished reputation of the facility if something goes wrong,181 Registered Nurses might get into trouble in terms of their continued registration.

15. It is submitted that apart from further education and training, and the undertaking of a competency assessment, none of the reasons provided by the HSU witnesses identify any issue of unreasonableness. Further, it is not for an employee to decide that they will not perform duties within the scope of their employment as set out in, and mandated by, an enterprise agreement. Such conduct would be a breach of the relevant enterprise agreement, and the employee’s contract of employment.

16. The foregoing is to be understood in the context that both Ms Rieche and Ms McGelliott gave unequivocal evidence that they understood and could perform all of the requirements of the competency assessment in respect of the use of an insulin pen.

17. The issue thus becomes, in circumstances where both Ms Rieche and Ms McGelliott would benefit from further training and education on diabetes and the use of an insulin pen, and the undertaking of a competency assessment on the use of an insulin pen, what relief ought flow in this dispute.

18. Section 739(5) of the Fair Work Act 2009 (the FW Act) provides that the Commission must not make a decision or order that is inconsistent with a fair work instrument (such as an enterprise agreement) that applies to the parties. That being so, it is submitted that the Commission cannot make an order that would stop, prohibit or otherwise limit the nature and scope of CSE2 duties contained in clause 1.3(a) of Schedule A of the Agreement.

19. However, it is accepted that in this dispute the Commission may grant relief consistent with clauses 35.1 to 35.3 of the Agreement. Wenonah submits that it is not necessary or appropriate, in the Commission’s discretion, to impose orders upon Wenonah in this regard. Wenonah agrees to follow any recommendation made by the Commission in resolution of this dispute.

Disposition of dispute

20. Wenonah submits that the proper disposition of this dispute is as follows:

(a) Question 1 is answered “yes”.

(b) The Commission makes the following Recommendations:

(i) Consistent with clauses 35.1 to 35.3 of the Agreement, in respect of any CSE2 who is directed by the Respondent (Wenonah) to assist residents in the management of their diabetes via the use of an insulin pen, the Respondent is to:

• make mandatory for such CSE2 employees relevant training and education on diabetes, diabetes management and the use of an insulin pen; and

• ensure CSE2 employees participate in and pass the Respondent’s competency assessment titled “Competency Assisting a resident using an Insulin Pen” (as set out at pages 6 to 8 of Exhibit #R3 in these proceedings).

(ii) CSE2 employees shall make themselves available and attend any relevant training and education on diabetes, diabetes management and the use of an insulin pen as referred to in Recommendation (i);

(iii) CSE2 employees shall use their best endeavours to pass the Respondent’s competency assessment titled “Competency Assisting a resident using an Insulin Pen” as referred to in Recommendation (i).

(iv) Upon Recommendation (i) being satisfied, CSE2 employees shall assist residents in the management of their diabetes via the use of an insulin pen as directed by the Respondent, in accordance with the Respondent’s relevant policies and procedures.

21. The Respondent will further develop these submissions, on the law and the evidence, orally at the hearing.”

[22] On 6 July 2018 the HSU filed Reply Submissions as follows,

“I BACKGROUND

1. The Applicant continues to rely on its Outline of Submissions dated 27 April 2018 and its written Submissions dated 12 June 2018. These further submissions are made in reply to the Respondent’s Outline of Closing Submissions (Respondent Submissions) dated 14 June 2018.

II RESPONSE TO RESPONDENT SUBMISSIONS

2. In response to paragraph 10 of the Respondent Submissions, the Respondent’s position about the lawfulness of the proposed practice does not assist in the Commission’s interpretive role. To the extent that it is relevant to the question of whether it is ‘otherwise lawful’ as articulated in Question 1, the Applicant responds as follows:

a. Ms Newell accepts that the guidelines with respect to delegations are mandatory to follow; 182

b. Ms Newell accepts that in order for a delegation to be in accordance with the guidelines, a competency assessment of the delegee must have taken place; 183

c. Ms Newell accepts that Ms McElligott, Ms Rieche and Ms Woods have not had any competency assessment undertaken; 184

d. Ms Newell accepts that in conformity with the guideline she should not delegate to staff who are not willing to accept the delegation; 185

e. Ms McElligott and Ms Rieche have expressed unwillingness to accept the delegation; 186

f. It is unsatisfactory professional conduct for a Registered Nurse in New South Wales to permit an assistant employed in association with the RegisteredNurse’s professional practice ‘to attend, treat or perform operations on patients in respect of matters requiring professional discretion or skill’; 187 and

g. The Applicant submits that the injection of insulin amounts to a matter requiring professional discretion or skill.

3. In further response to paragraph 10 of the Respondent Submissions, the Applicant accepts that the ‘subjective views’ of Ms Rieche and Ms McElligott do not bear on the construction of the phrases ‘assist and support residents with medication utilising dose administration aids’ or ‘attend to blood sugar level checks etc. and assist and support diabetic residents in the management of their insulin and diet, recognising the signs of both hyper and hypo-glycaemia’. They do, however, bear upon ‘the limits of the employee's skill, competence and training’ and as such the scope of duties which can be directed in accordance with cl 35 of the Agreement. It also bears on the reasonableness of the direction in accordance with Question 2.

4. Contrary to paragraph 11 of the Respondent Submissions, the Applicant submits that the actual injection of insulin does not fall within the scope of ‘assist[ing] and support[ing] diabetic residents in the management of their insulin and diet, recognising the signs of both hyper and hypo-glycaemia.’ First, truncating that clause at ‘insulin’ deprives the clause of its context; the assistance and management of insulin should be limited to a similar level of skill to assistance and management in diet and recognising the signs of hypo- and hyper-glycaemia. Similarly, the using of dose administration aids should be construed as referring specifically to the measuring and not the actual administration of medication.

5. Second, the injection of insulin by a PCA is not something that is necessarily required in the support of diabetic residents. Ms Ellery, for example, is able to inject her own insulin. 188 The evidence suggests that the administration by a Registered Nurse or PCA is related rather to the resident’s non-diabetes conditions.189

6. In response to paragraph 18 of the Respondent Submissions, the Applicant repeats its submission that to answer Question 2 favourably to the Applicant would not lead to inconsistency with the Agreement. Section 739(5) of the Act is not an ‘anti-Magic Pudding clause’; rather, where the Agreement allows arbitration of ‘any matters arising in the employment relationship,’ 190 arbitration of Question 2 will be largely outside the terms of the Agreement and not contrary to it,191 and to the extent that it touches on matters covered by the Agreement it bears on residual discretions to be exercised by the Respondent and as such is not contrary to the Agreement.

7. In response to paragraph 19 of the Respondent Submissions, the Applicant states that the relief that can be ordered is not dictated by the consideration of cl 35 of the Agreement and can be considered more broadly in accordance with the preceding paragraph.

III DISPOSITION OF THE ARBITRATION

8. The Applicant repeats that the dispute should be disposed of by the Commission answering the Questions as follows:

a. Question 1: No; and

b. Question 2: Unnecessary to answer (or, to the extent that it is necessary to answer, yes).”

[23] Also on 6 July the Respondent filed its Reply Submissions as follows,

“Overview

1. These submissions are made in reply to the Applicant’s written submissions dated 12 June 2018 (the Applicant’s Submissions).

Delegations (paragraphs 23-24 of the Applicant’s Submissions)

2. The Applicant asserts that Ms Newall was bound to follow the Guidelines found at paragraph 35(e) and Annexure ‘M’ to the Statement of Fiona Newall dated 14 May 2018. Despite the evidence of Ms Newall 192, Annexure ‘M’ states that these Guidelines are “to assist nurses and midwives to make sound supervision and delegation decisions”.193 Nothing in these Guidelines supports the assertion by the Applicant that Ms Newall (as Care Manager and Registered Nurse) cannot delegate the use of an insulin pen to a personal care worker to assist a resident in the management of their diabetes.

Delegations and legal authority (paragraphs 25-30 of the Applicant’s Submissions)

3. The Applicant submits, at least impliedly, that the Poisons and Therapeutic Goods Regulation 2008 (NSW) (made pursuant to the Poisons and Therapeutic Goods Act 1966 (NSW)) prohibits the use of an insulin pen by a personal care worker to assist a resident in the management of their diabetes. No specific provisions of this legislation or regulation is referred to or identified by the Applicant. This is because no such prohibition (or provision as to limitation or otherwise) exists.

Delegations and willingness to accept delegation (paragraphs 31-32 of the Applicant’s Submissions)

4. The Applicant submits that delegations by a registered nurse to a personal care worker to assist a resident in the management of their diabetes via an insulin pen must only occur with the “consent” (of the delegation) by the personal carer concerned. Such an assertion is contrary to the express terms of the enterprise agreement, and is otherwise unavailable by reference to relevant legislation and/or regulation.

The Audit document (paragraph 40 of the Applicant’s Submissions)

5. The Applicant submits that the face of the document entitled “Nursing Appraisal 18” identifies it as a 2018 document. The Respondent submits that such a claim in respect of this document is unavailable. Although the document itself refers to a 2018 date, the Respondent’s instructions are that the date stamp refers to the date the document was printed, not the date it was created. Proof in this regard is readily available if the Applicant’s assertions remain in contest.

The insulin pen being a “medication compliance aid” (paragraph 47 of the Applicant’s Submissions)

6. The concession by the Applicant that an insulin pen is a “medication compliance aid” is correct. That being so, the use of such insulin pen to assist and support a resident in the management of their diabetes thus falls squarely within the enterprise agreement classification descriptor for a PCA2 (and is beyond further argument).

Conclusion

7. The Respondent otherwise relies upon its written submissions tendered in these proceedings.”

Consideration

[24] The starting point is to determine if the Agreement is ambiguous or susceptible to more than on meaning. The parties did not submit that the Agreement was ambiguous or susceptible to more than one meaning. Having read the Agreement I agree. While interpreting the Agreement may not be free from difficulty that does not render it ambiguous.

[25] It is sufficient to have regard to the ordinary meaning 194 of relevant words as follows,

a) “skill, competence and training” (clause 35.1),

• “skill” means “the ability that comes from knowledge, practice, aptitude, etc.”,

• “competence” means “the quality of being competent; adequacy; due qualification or capacity”,

• “training” means “the development in oneself or another of certain skills, habits, and attitudes”,

b) “indicative” (clause 1.3(a) of Schedule A), means “suggestive”,

c) “wide range” (clause 1.3(a) of Schedule A), means “having considerable or great extent from side to side; broad; not narrow”,

d) “range” (clause 1.3(a) of Schedule A), means “the extent to which, or the limits between which, variation is possible”,

e) “including” (clause 1.3(a) of Schedule A), means “to place in an aggregate, class, category, or the like”,

f) “assist” (clause 1.3(a) of Schedule A), means ““to give support, help, or aid to in some undertaking or effort…” or “to be associated with as an assistant”,

g) “support” (clause 1.3(a) of Schedule A), means “to give assistance to”.

[26] I have not found a definition of “dose administration aid”, however, it was not contested between the parties that an insulin pen is such a thing.

[27] The importance of the word “including” in clause 1.3(a) of Schedule A means that the list to be found in the dot points that follow are non-exhaustive. They are indicative only.

[28] It is also necessary to give some meaning to “personal care services”. Having regard to how that phrase is used in its ordinary context I hold that it means “services performed by (in this case CSE2s) to assist residents meet the requirement of their daily living.” I further hold that the management of diabetes is commonly a requirement of daily living for some residents in the Respondent’s facilities.

[29] This definition of “personal care services” is consistent with the finding of Commissioner Hampton in Southern Cross Care (Broken Hill) Ltd v The Broken Hill Town Employees’ Union. 195 In that decision the Commissioner identified CSE2 duties as including “generally anything the resident would otherwise do in their own home, but now need assistance.” The administration of an insulin pen is such a thing. Having had it demonstrated to me in the course of the hearing, it is clear to me that an insulin pen can be used with ease and routinely. It requires no special skill. I take notice of the fact that children are able to use them.

[30] Having considered the Agreement by beginning with an analysis of the ordinary meaning of the words of the relevant clauses in the Agreement and having observed how an insulin pen is used, I am satisfied that if a CSE2 employee of the Respondent is required to inject insulin into a resident by using an insulin pen they are “assisting a resident with medication by utilising a dose administration aid”. Consequently, the duty is within the CSE2 classification.

[31] However, it necessary to ensure that CSE2s directed to perform the function are skilled, competent and trained. It is in this area that the Respondent must improve its practices. The evidence of Ms Newell left me with serious concerns about the training and competency assessment practices of the Respondent, including its record keeping of the same. However, once those matters are attended to, there is no impediment to requiring CSE2s to use insulin pens.

[32] Having considered all that has been put in relation to the matter I have determined that the Agreement (in particular clause 1.3(a)) has a plain meaning. In doing so I have reviewed the relevant text of the Agreement and considered it as a whole. Nothing about finding that CSE2s can be required to operate insulin pen requires a rewriting of the Agreement, nor does in contradict the plain language of the Agreement.

[33] To find otherwise would be to adopt an overly technical approach to the interpretation of the Agreement and the meaning of the relevant words. It would result in CSE2s being able to dial up an insulin pen say for a resident with arthritis, but not inject it for a resident with dementia. That is would be an absurd result and undermine the skills and experience of CSE2s and the great work they do as personal care assistants.

Conclusion

[34] For the reasons set out above, the Commission, as presently constituted, has determined that the answers to the Applicant Questions are as follows:

1. Considering cl 35 of the Agreement, and the duties referred to in the Care Stream of clause 1.3(a) of Schedule A to the Agreement, is it in accordance with the Agreement and otherwise lawful for Gulgong Hostel Association Incorporated to direct employees engaged as Care Service Employees Grade 2 to dose and administer insulin to residents?

Yes, provided that the CSE2s have been trained and assessed as competent. Further, it is reasonable and lawful to direct CSE2s to attend relevant training and require them to undergo competency assessment.

For these reasons I adopt the suggested recommendations proffered by the Respondent and recommend that,

a) Consistent with clauses 35.1 to 35.3 of the Agreement, in respect of any CSE2 who is directed by the Respondent to assist residents in the management of their diabetes via the use of an insulin pen, the Respondent must:

i. make mandatory for such CSE2 employees relevant training and education on diabetes, diabetes management and the use of an insulin pen; and

ii. ensure CSE2 employees participate in and pass the Respondent’s competency assessment titled “Competency Assisting a resident using an Insulin Pen” (as set out at pages 6 to 8 of Exhibit #R3 in these proceedings).

b) CSE2 employees must make themselves available and attend any relevant training and education on diabetes, diabetes management and the use of an insulin pen as referred to in Recommendation a);

c) CSE2 employees must use their best endeavours to pass the Respondent’s competency assessment titled “Competency Assisting a resident using an Insulin Pen” as referred to in Recommendation a).

d) Upon Recommendation a) being satisfied, CSE2 employees must assist residents in the management of their diabetes via the use of an insulin pen as directed by the Respondent, in accordance with the Respondent’s relevant policies and procedures.

If an employee is trained and competent (and both of the HSU’s witnesses gave evidence that they can perform the task and that they understand the relevant policies and procedures) then it is not unreasonable to require them to dose and administer insulin. In the witness box I observed CSE2s who are skilled in their work and care deeply about it. They have no issue with checking and monitoring a resident’s blood glucose level via finger pricking. The administration of insulin is a natural and reasonable extension of care for that resident. While I accept that the reservations held by the CSE2s were genuinely held, their fears are misplaced (especially if proper compulsory training is provided). The fact that they may not want to do it, or feel uncomfortable about injecting insulin is not a relevant consideration. Many employees have to do tasks that they do not want to perform.

For these reason, I answer Applicant’s Question 2 as follows: “No”.

COMMISSIONER

Appearances:

Mr L Maroney for the Applicant

Mr G Boyce for the Respondent

Hearing details:

5 June 2018

1 [2018] FWCA 1484.

2 AG2017/4685, clause 3(e).

3 [2018] FWCA 1484, para [7].

4 On 29 June 2018 the parties jointly file an Agreed Statement of Facts. There were some non-agreed items. For example, the HSU claimed the Respondent was requiring CSE2s to “administer” insulin. The Respondent proposed “assist in the provision of insulin”. Having viewed the “pen” used to administer the insulin and had the process explained, I prefer the HSU’s characterisation. I have also preferred to include the rest of the suggestions made by the HSU over those made by the Respondent.

5 Exhibit A4 [1], Exhibit A2 [1].

6 Exhibit A4 [1].

7 Exhibit A2 [1].

8 Exhibit A4 [9]; Exhibit A2 [10], [15].

9 Exhibit A4 [9].

10 Exhibit A2 [20].

11 Exhibit A4 [9].

12 Exhibit A4 [9]; Exhibit A2 [15].

13 Exhibit A4 [10].

14 Exhibit A4 [11].

15 Exhibit A2 [23].

16 Exhibit A4 [12]; Exhibit A2 [15].

17 Exhibit A4 [12]; Exhibit A2 [10].

18 Exhibit A4 [13].

19 Exhibit A2 [10].

20 Exhibit R2, Annexure V.

21 Exhibit R2, Annexure V.

22 Exhibit R2, Annexure V, Annexure W.

23 Exhibit R2, Annexure W.

24 Exhibit R2, Annexure W.

25 Exhibit R2 [1].

26 Transcript of proceedings, 5 June 2018 (Transcript) PN365–6.

27 Transcript PN364.

28 Exhibit R2 [2].

29 Exhibit R2 [34].

30 Exhibit R2 [12].

31 Exhibit A4 [4], Exhibit A2 [6], Exhibit R2 [8].

32 Exhibit A4 [15], Exhibit A2 [23], Exhibit R2 [14].

33 Exhibit R2 [14]; Exhibit A2 [16].

34 Exhibit A4 [20], Exhibit A2 [28], Exhibit R2 [15].

35 Exhibit A4 [16], [17], [19]; Exhibit A2 [24], [25], [27]; Exhibit R2 [18–20].

36 Exhibit R2 [18–20].

37 Transcript PN74–6, PN157 (Ms Rieche); Transcript PN203 (Ms McElligott).

38 Exhibit A4 [25], Exhibit A2 [36].

39 Exhibit R2 [30].

40 Exhibit R2 [31].

41 Exhibit R2 [32].

42 Exhibit R2 [33].

43 Transcript PN314–5.

44 Transcript PN434.

45 Exhibit A4 [14]; Transcript PN508–9.

46 Transcript PN500; Exhibit R2 [21], Annexure C.

47 [2014] FWCFB 7447 at [41]

48 [2017] FWCFB 3005.

49 (2005) 222 CLR 241.

50 Ibid at 246.

51 Ibid at 262.

52 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 per McHugh, Gummow, Kirby and Jayne JJ.

53 [2017] FWCFB 1621 at [21].

54 Kucks v CSR Limited (1996) 66 IR 182 at 184.

55 City of Wanneroo v Australian, Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at 440; See in general Golden Cockerel at [19]–[22].

56 [2006] FCA 616.

57 Ibid at [26].

58 [2015] FCAFC 142.

59 Ibid at [108].

60 NTEU v La Trobe University [2015] FCAFC 142 at [109] per White J.

61 (2009) 188 IR 297 at [19]-[22].

62 (1982) 149 CLR 337.

63 Ibid at 352.

64 Ibid

65 Ibid

66 (1996) 66 IR 182 at 184.

67 [2017] FCA 346 at [29].

68 See Howard Smith and Co Ltd v Verawa (1907) 5 CLR 68 at 78; Farmer v Hanon (1919) 26 CLR 183 at 197 and White v Australian and New Zealand Theatres Ltd (1943) 67 CLR 266 at 275 and 281.

69 Administration of Papua New Guinea v Daera (1973) 130 CLR 353 at 446; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 348.

70 (2008) 251 ALR 322 at [35] per Gummow, Hayne and Kiefel JJ, and at [163] per Heydon J.

71 [2009] NSWCA 407 at [319] per Allsop P.

72 Metcash at [330].

73 (1994) 36 NSWLR 290 at 304.

74 Ibid at 312.

75 Ibid

76 (1978) 95 DLR (3d) 242 at 262.

77 Application by Gulgong Hostel Association Inc. [2018] FWCA 1484 (13 March 2018) [8].

78 [2017] FWCFB 143 (9 January 2017).

79 Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied

Services Union of Australia (2016) 244 FCR 178, 189; 260 IR 231, 242.

80 Lloyd v Australia Western Railroad Pty Ltd [2017] FWCFB 143 (9 January 2017) [36].

81 Ibid [37].

82 (2017) 268 IR 285.

83 (2014) 245 IR 394.

84 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian

Manufacturing Workers Union (AMWU) v Berri Pty Limited (2017) 268 IR 285, 310–12 [114].

85 [2015] FWC 803 (8 April 2015).

86 Ibid [132].

87 Work Health and Safety Act 2011 (NSW) s 19.

88 Ibid s 4, definition of “health”.

89 (1984) 295 CAR 188.

90 Ibid 191.

91 [2015] FWCFB 1889 (31 March 2015).

92 Ibid [27].

93 Ramos v Serco Australia Pty Ltd [2017] FWC 5470 (23 October 2017) [35].

94 “Knucks v CSR Limited (1996) 66 IR 183 (at 184); The Australian Workers' Union, Western Australian Branch v Co-Operative Bulk Handling Limited [2010] FWAFB 4801 (at [6]-[14]); Catholic Regional College Sydenham v Independent Education Union of Australia [2011] FWAFB 2784 (at [37]-[39]); Shop, Distributive and Allied Employees' Association v Woolworths SA Ply Ltd [2010] FCAFC 67 (at [14]-[18]); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 (at [39]); Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; The Australasian Meat Industry Employees Union v Coles Supermarkets Australia Ply Ltd (1998) 80 IR 208 (at 212); Short v FW Hercus Ply Ltd (1993) 50 FCR 511 (at 517-518); K and SLake City Freighters Ply Ltd v Gordon and Gotch Ltd (1985) 157 CLR 309 (at 315); Guidance is also obtained by the principles which courts apply to the construction of contracts: Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 (at 437);Toll (FGCT) Ply Ltd v Alphapharm Ply Ltd (2004) 219 CLR 165 (at 179); see also Golden Plains Fodder Australia Ply Ltd v Ashley Perkins [2004] SAIRComm 20 (at [34]). As to the meaning of 'context' see City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426.”

95 [2018] FWCA 1484; AG2017/4685.

96 Short v FW Hercus Ply Ltd (1993) 50 FCR 511 (at 517).

97 Short v FW Hercus Ply Ltd (1993) 50 FCR 511 (at 518); see also Geo A Bond & Co Ltd (In Liq) v McKenzie [1929] AR (NSW) 498 (per Street J at 503) and McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 (at [74]) per Kirby J.

98 Exhibit A1.

99 Exhibit A4 and Exhibit A2 respectively.

100 Exhibit R2.

101 Exhibit R3.

102 Transcript of proceedings, 5 June 2018 (‘Transcript’), PN350–1.

103 Transcript PN572–84.

104 Exhibit A4, [1].

105 Exhibit A4, [25].

106 Exhibit A4, [8–13].

107 Exhibit A4, [14].

108 Exhibit A4, [23–4].

109 Transcript PN247–9.

110 Transcript PN258–68.

111 Transcript PN217, PN220.

112 Exhibit A4, [26].

113 Transcript PN219–20, PN222–3, PN227–8.

114 Exhibit A2, [1–2]; Exhibit R2, Annexure T.

115 Exhibit A2 [10–22].

116 Exhibit A2 [29], [36].

117 Transcript PN69, PN144.

118 Transcript PN161.

119 Transcript PN165–6.

120 Transcript PN171–7.

121 Exhibit A2 [30–5].

122 See sections D and E below.

123 Exhibit R2 [9].

124 Transcript PN513.

125 Transcript PN513–27.

126 Transcript PN528.

127 Transcript PN529.

128 Jones v Dunkel (1959) 101 CLR 298.

129 Transcript PN326.

130 Transcript PN315, PN320.

131 Transcript PN316.

132 Exhibit R2, Annexure C, 5.

133 Exhibit R2, Annexure C, 6.

134 Transcript PN390–412.

135 Exhibit R2, [35(e)], Annexure M.

136 Transcript PN419–24.

137 Transcript PN427.

138 Transcript PN429.

139 Transcript PN439.

140 Transcript PN374; Exhibit R2, Annexure Q.

141 Transcript PN378–82.

142 Transcript PN379–81.

143 Health (Drugs and Poisons) Regulation 1996 (Qld) appendix 9, definition of ‘restricted drug’.

144 Poisons and Therapeutic Goods Act 1966 (NSW) s 4, definition of ‘restricted substance’.

145 Transcript PN 699–700.

146 Transcript PN440, PN503; Exhibit R2, Annexure M, 3.

147 Transcript PN441; Exhibit R2, Annexure C.

148 Transcript PN443–8.

149 Transcript PN505.

150 Transcript PN481.

151 Transcript PN468.

152 Transcript PN500–504.

153 Transcript PN330.

154 Transcript PN338–47.

155 Transcript PN347–8.

156 Transcript PN572–84.

157 “In correspondence between the parties, the Respondent has stated ‘the document provided was created in December 2017. The date at the bottom of 8 June 2018 is that date it was printed. Hence, the document provided is the one which was called for.’ In the Applicant’s submission, the inclusion of competencies completed in 2018 is still unexplained, and the Respondent’s explanation should not be accepted.”

158 Transcript PN568–9.

159 [2015] FWC 2504 (10 April 2015).

160 Grabovsky v United Protestant Association of NSW Ltd [2015] FWCFB 3926 (25 June 2015).

161 Grabovsky v United Protestant Association of NSW Ltd[2015] FWC 2504 (10 April 2015) [26].

162 Exhibit R1.

163 Transcript PN97.

164 Exhibit A1 [22].

165 Grabovsky v United Protestant Association of NSW Ltd [2015] FWCFB 3926 (25 June 2015) [13–4].

166 Ibid [18].

167 [2017] FWCFB 143 (9 January 2017).

168 Exhibit R1

169 SCC decision at [92].

170 Exhibit R2, Annexures F, G, H; Not challenged in cross-examination.

171 Transcript PN69, PN220.

172 Transcript PN69, PN148-PN149, PN165.

173 Transcript PN147.

174 Transcript PN155.

175 Transcript PN156.

176 Transcript PN161, PN175, PN177, PN222, PN227.

177 Transcript PN165.

178 Transcript PN169.

179 Transcript PN171.

180 Transcript PN215.

181 Transcript PN225.

182 Transcript PN424.

183 Transcript PN426–7.

184 Transcript PN347.

185 Transcript PN429.

186 Exhibits A2 and A4 generally.

187 Health Practitioner Regulation National Law (NSW), s 139B.

188 Exhibit R2, [15].

189 Exhibit A4, [16–9].

190 Agreement cl 44.2(e).

191 United Voice v Serco Australia Pty Ltd [2018] FWC 3238 (12 June 2018) [30–1].

192 Transcript PN419-424.

193 “Introduction” to Guidelines, Annexure M to the Statement of Fiona Newall dated 14 May 2018.

194 With reference to the Macquarie Dictionary.

195 [2015] FWC 803.

Printed by authority of the Commonwealth Government Printer

Health Services Union New South Wales Branch v Gulgong Hostel Association Inc (t/a Wenonah Lodge & Wenonah Community Care)

[2018] FWC 4925

23 AUGUST 2018

DECISION

Jurisdiction

The Agreement

The Hearing

Background to the dispute

Principles of interpretation

Submissions

Conclusion