[2014] FWC 4016 [Note: An appeal pursuant to s.604 (C2014/5562) was lodged against this decision - refer to Full Bench decision dated 9 December 2014 [[2014] FWCFB 8089] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution in relation to flexible working arrangements

Health Services Union
v
Liviende Inc
(C2012/5869)

Social, community, home care and disability services
COMMISSIONER CRIBB	MELBOURNE, 4 JULY 2014

Alleged dispute concerning classification of staff.

[1] This decision concerns a long-running dispute between the Health Services Union, Tasmania No. 1 Branch (HSU, the union) and Liviende Inc. (Liviende, the employer) as to the appropriate classification rate for Residential Support Officers (RSO’s) under the Tasmanian Disability Services Industry Multi - Employer Enterprise Agreement 2011 (the Agreement, MEA). The context for the dispute is the operation of section 206 of the Fair Work Act 2009 (the Act). The RSO’s are classified at Level 4 under the Agreement.

[2] Liviende applied to the President, Ross J, for the referral of a question of law to the Federal Court of Australia pursuant to section 608 of the Act. The question sought to be referred concerned the proper interpretation of section 206 of the Act. 1 The application was refused and the matter proceeded before Johns C.

[3] Johns C, in his decision, considered the proper interpretation of section 206 of the Act and found that the Level 4 descriptors in the Agreement are relevant as is also the exercise of determining the appropriate classification under the Social, Community, Home Care and Disability Services Award 2010 (the Award, SCHADS) on the basis of the work of the RSO’s. 2

[4] The dispute was then reallocated to the Commission as presently constituted, for determination of the substantive classification dispute between the parties.

[5] Therefore, this decision determines, in the context of section 206 of the Act, which level in the Award the RSO Level 4 employees best align with. This is for the purpose of establishing the Award rate under section 206 as the Agreement rate has already been established (Level 4 of the MEA).

2. WITNESS EVIDENCE

(a) HSU

Mr Eddy

[6] Mr Eddy is an RSO and has been employed at Liviende since August 2009. He provided a written statement 3 and gave oral evidence.

[7] It was Mr Eddy’s evidence that the (former) RSO’s set the timing and framework for the day in the house as they are aware of appointments et cetera. 4 In addition to the list of indicative tasks to be performed each day, Mr Eddy said that he organised the day for the house e.g. arranging a vehicle to be serviced and then for the day support person to come in a bit earlier to take the vehicle. It was stated that he also does the reports at the end of the shift and does the handovers.5

[8] Mr Eddy indicated that he supervised the other person on shift with him in that he sets out what needs to be done that day in the house ie. he plans the day. It was stated that, when he was first employed, Liviende asked him to supervise lower classified employees and he confirmed that the classification descriptor included the capability to do so. In terms of assisting/managing inexperienced staff, Mr Eddy stated that it is not about being a team player. Rather, the (former) RSO’s need to show inexperienced staff what to do and to help them do it in some situations. This could be due to his length of experience in the industry or his particular understanding of the client or of the house. It was said to be supervising in that he is making sure that the inexperienced person did not do anything to make the client angry and violent. 6

[9] It was also stated by Mr Eddy that he checked the progress of subordinate staff e.g. new employees and casuals. If he had any concerns, he would report them to the coordinator. He acknowledged that it was not a direct request from Liviende to do this. However, he said that he would not be doing his job if he was not evaluating the ability of people to do the work. This was because a mistake could have been made where an unsuitable person for the job had been hired. 7

[10] Mr Eddy recounted that, sometime after 1 July 2012 - around March 2013, Liviende started withdrawing some of the RSO’s responsibilities. It was indicated that there had not been a written direction to this effect and he confirmed that a new Position Description had not been issued. He stated that his duties had not changed on 1 July 2012 consistent with Mr Armstrong’s letter. Rather, they had changed about nine months later. 8 It was Mr Eddy’s evidence that, with the introduction of the new Position Description in June 2012, nothing changed practically within the house as they were still expected to do the things that they had done prior to 1 July 2012. Examples of the duties that they were still expected to do were some of the reports, plans, budgets, banking and balancing residents’ accounts etc, dealing directly with day support providers and some contact with external service providers and the key worker role. They had been told around March 2013 that they were no longer required to do these duties.9 There were coordinators in place on 1 July 2012 and Mr Eddy was adamant that his duties and responsibilities did not change at that time but from March 2013.10

[11] With respect to medical emergencies, Mr Eddy indicated that there were general procedures regarding how to deal with such occurrences. It was stated that it was not as simple as dealing with someone who fell over and hurt their head, for example. He described the situation where a client has a seizure. It was explained that it is a very unpredictable environment and that no procedure can cover every circumstance. He said that the procedures provide a broad outline and that he has to use his knowledge, skills, experience and judgement to decide what he is going to do in that instant. 11

[12] In terms of seeking assistance and guidance from coordinators, Mr Eddy indicated that, lately, he had been seeking assistance with basic situations. It was explained that he would normally have made his own decision about whether to make a file note or an incident report about an assault. However, as he did not want to do an incident report if he wasn’t required to, he had e-mailed his coordinator. His coordinator had advised him to do a file note. 12 In this regard, Mr Eddy explained the situation regarding the doorknob.13

[13] With respect to duties that he performs, which are not required at Level 2 of the Award, Mr Eddy pointed to liaison with day support on issues. He agreed that they were relatively minor but said that they were pretty major if not done right. 14

[14] In terms of the residence, it was Mr Eddy’s evidence that he decided if intervention from health professionals is required. 15 He explained that he would contact the coordinator and strongly suggest that the resident see, for example, a podiatrist. If the resident had an established podiatrist, he would call and make an appointment. He said that he had not seen the process of ringing the coordinator who then makes the appointment, occur in the house.16 It was stated that, in terms of the three month medication review, he would notice that first and make an appointment for the resident. It was recounted that the coordinator is required to attend medical appointments with GP’s but, if the coordinator is unavailable, either he or another staff member go. It was acknowledged that making a doctor’s appointment is that relatively minor administrative task.17

[15] It was recounted by Mr Eddy that, when he was first employed, he had implemented a holiday program following general instructions from the house manager or coordinator. He had not done this for a couple of years. In terms of family visits, it was recalled that these were sometimes suggested by the RSO’s. He said that, from when he was employed until March 2013, he had initiated, developed and implemented family visits and holiday programmes. 18

[16] Mr Eddy agreed that he was not developing goals for residents in isolation and that he did not determine and set them. However, he disagreed that his involvement was usually at the prompting of the coordinator. His interaction was recalled to be with the family either face-to-face or over the phone. When he was first employed, it was recounted that he actively communicated with families. This was particularly so when the residents are unable to verbalise their goals. 19 It was explained that he, together with the other RSO’s and coordinator, all have an input, as part of a team, in the development of personal plans and healthcare plans.20

[17] With respect to the evaluation of the person centred plans and goals, Mr Eddy explained that he was employed to perform this duty but that he was no longer required to do this since about March 2013. He said that he undertook informal (not written) evaluations of processes and that proposed changes were given to the coordinator. It was indicated that he helped develop personal plans but that, when first employed, he developed them. It was stated that he updated healthcare plans which, as it required a knowledge of health plans, was not simply an administrative task. 21 Mr Eddy also outlined that, if one of the plans is not working, the RSO’s would be informing people that it is not working. He agreed that this was a form of evaluation as the RSO’s are the only ones who can evaluate it.22

[18] Examples of having exercised initiative were given as taking residents out for a drive on a Saturday or taking out one particular resident for a drive and a pie and a coke on a Sunday. It was explained that, as they did not like it to be regimented, they exercised initiative by giving a resident an outing that was not, for example, on every third Saturday. In terms of medical issues, it was said to be difficult to show initiative in this area as it is very prescriptive as to what they do. However, it occurs in noticing where there have been subtle changes in behaviour and then bringing those to the coordinator’s attention. It was acknowledged that this is part of providing care and support to clients which also includes changing work procedures on a day-to-day basis to suit clients. 23

[19] In relation to the key worker role, it was Mr Eddy’s evidence that, although the key worker role no longer exists, RSO’s still take that level of responsibility for their clients. 24 Mr Eddy also explained the process regarding responsibility for administering and monitoring prescribed medications which was required of employees with a medication certificate.25 It was stated that not every RSO is medication endorsed.26 He also confirmed that he has a first aid certificate and that he had done emergency management (fire warden) training.27

[20] With respect to client record management, Mr Eddy indicated that these were administrative tasks which included filling in client journals and the communications journal. He said that the information contained in these were broad general statements. RSO’s were stated to rely on verbal handovers to fill in the gaps. 28 Mr Eddy disagreed that these were basic administrative tasks because the RSO’s are required to pick up faults e.g. wrong dosages or times. He agreed that, prima facie, this was part of having the medication certificate.29

[21] Mr Eddy’s strong view is that his duties are more aligned to Level 3 of the Award. This is on the basis that they include:

The supervision of other employees.

Scheduling the work program in unison with the coordinator ie. receive broad instructions from the coordinator and the details are left up to the RSO’s.

Taking responsibility on a day-to-day basis for the overall care of residents.

The training of other employees e.g. how to shower a client. This was said to occur a couple of times a year. 30 It was explained that showering a client is not necessarily a simple requirement. If it is done the wrong way, there can be potentially serious behaviours by the client as a result.31

Liaise with a service provider (who runs a work program). This involves, for example, talking to them about changes in schedule, different pick up points, purchasing protective clothing. The latter was said to not be an administrative task. He said that when he was employed, he liaised with external or other service providers at a higher level than just doing tasks to ensure that things run smoothly. However, at the moment, this is not what they are required to do.

A requirement to pass onto staff and management information from health professionals. He stated that he did not require the coordinator to do this if he has taken a client to the doctor. This is because he is able to fill in the gaps in the written information provided by the doctor. Previously, he would have directly emailed all staff about a doctor’s order for a client. However, he now sends the information to the coordinator and asks him to do this.

Preparation of reports on clients for a psychiatrist and the doctors. The content of the reports was said to not simply be the collating of information from the records and other staff. Rather, it was described as being able to observe and assess the resident’s behaviour and note any changes. 32

[22] When he was employed, Mr Eddy stated that Liviende told him that he was required to have a thorough knowledge of the policies and procedures. He also said that he is required to be able to modify work practices in accordance with legislation and changing legislation (a working knowledge of legislation relevant to the workplace). It was indicated that these things are set out in the policies and procedures but were sometimes not updated. 33 It was agreed that the Level 2 descriptors provide for knowledge to be “developing” knowledge. He was of the view that there is a difference between a person with “working” knowledge of legislation and somebody with “developing” knowledge. It was explained that the legislation is not brief and that it uses language that can seem strange to someone who is not used to it. It was said to take time to be able to understand and then interpret the intent of the legislation. It is said to be a matter of keeping up to date with any changes in the legislation or regulations.34

[23] With respect to the role of house managers, it was explained that it was more hands-on than the coordinator role. Mr Eddy confirmed that, even within the house manager structure, there was the capacity for Level 4 RSO’s to supervise lower classified staff. He agreed that no other structures had changed and that coordinators are a little bit more removed than the house managers were. 35 It was said that there is no one on hand to guide RSO’s on how to do a particular task effectively and safely.36

Mr Henry

[24] Mr Henry has been an RSO with Liviende since July 2008. He provided a written statement 37 and gave oral evidence.

[25] It was Mr Henry’s evidence that, where two RSO’s are working on the same shift, one will generally run the shift in terms of handling the finances, having the combination to the safe, having access to the medicine cabinet et cetera. It was his understanding that, if a casual worker is rostered on with him, he is not allowed to give that person the safe combination. Therefore, he is responsible for opening the safe, getting the daily money out etc. It was stated that he immediately responds when a less experienced RSO cannot handle the situation. He said that there are currently a lot of casual employees who cannot fulfil all the duties of the shift. In addition, there are employees who have done their buddy shifts but who are unable to fulfil all the duties in the house. This might be because they have been unable to do all of the training (medication, first aid, manual handling etc) or they have not yet been approved to drive vehicles with clients in them etc. 38 Mr Henry indicated that it was his understanding that it is a requirement for an RSO to have a first aid certificate and to be able to drive a particular vehicle.39 With respect to checking the progress of other staff and co-ordinating work flow, he explained that he meant that, if he had been showering somebody, when he came out of the bathroom, he would ask his co-walker as to what has been happening and double check on the running of the shift.40 He confirmed that checking progress and coordination of the workflow of lower classified employees is in his classification descriptor, as is supervising employees.41

[26] Mr Henry confirmed from memory, that he received a new Position Description for his role as an RSO, in June 2012. At the same time, he received a letter from Mr Armstrong saying that his duties have not altered in any way. He said he has been working to the new Position Description as it is a requirement of his employment. 42 In terms of Liviende’s list of indicative tasks,43 it was stated that he also did some client reporting to the coordinator which was similar to the role of the key worker/specific client.44 He agreed with the proposition that the tasks list does not go into any detail about the degree of discretion, initiative, problem-solving ability in relation to the tasks.45

[27] With respect to the supervision of other staff, Mr Henry outlined the situation where a day support person was due to come in and look after a client in-house but is unable to attend. Therefore, the care of the client is left with him which he described as supervising or caring. It was also explained that when a client’s usual day support worker is not able to come on a particular day, there is a bit of supervision required in reporting to and telling the new person what the background is, what the various books are and what the paperwork is for that particular client. He agreed that this could be described as assisting the day support worker to do their job. 46

[28] In terms of his work, Mr Henry stated that, in disability care, there is no set routine as things can occur at any time. 47

[29] Mr Henry referred to the previous Position Description of RSA’s and RSO’s and confirmed that these were the duties required prior to 1 July 2012. He believed that the duties of key worker role, participation in the development of behaviour management programs and participation in the personal planning process, that are in the new Position Description, are the same as what was in the old Position Description. 48 He also set out what he believed was the chain of command - the RSA would be supervised by an RSO who would be supervised by the house manager.49 It was his view that, both RSA’s and RSO’s had the same level of responsibility in terms of the clients. However, that was said to be the extent of it.50 He agreed that, since 1 July 2012, all support workers have been required to do the same work as RSO’s.51 It was also agreed that, as at 1 July 2012, his duties were set out in the new Position Description. Mr Henry’s evidence was that he continued to do the banking for the clients in the house and the budgeting - which are no longer required under the terms of the new Position Description. He acknowledged that client budgets and assisting residents to manage their finances is contained in Liviende’s indicative tasks list.52 It was stated by Mr Henry that, when he was appointed, the Level 4 Agreement descriptor about undertaking non routine work was correct.53

[30] In terms of medical emergencies, Mr Henry confirmed that there are procedures in the house manuals which deal with emergencies and he responded to questions about the various steps in the procedures. 54 When he has called the on-call coordinator, that person was said to have asked him for his reasoning and he had given his recommendations. It was recalled that his call about ringing an ambulance had never been reversed by on-call.55 With respect to seeking assistance and guidance, it was acknowledged by Mr Henry that he has sent text messages to the coordinator and has made the coordinator aware of situations. He explained the circumstances in which he needed assistance to download his time sheet (computer dying).56

[31] With respect to his problem - solving with day support, Mr Henry explained that day support staff contact them about the behaviour of a particular client and seek their guidance in that regard. He indicated that, on occasion, if a day support person has contacted him, he then contacts the coordinator to ask what to do. However, it was said that, more often than not, he does not do that as, generally, the support worker is satisfied with the guidance provided. 57

[32] Mr Henry recounted that, when he contacts the on-call coordinator, he is generally ringing them to report an incident or a situation which requires either support to himself or support to the clients. It was stated that they often take advice from the on-call person. However the on-call person isn’t always accessible and so, to avoid a situation building up, they have to be really careful with phone calls ringing back and the noise factor within the house. He agreed that, generally, the coordinator confirms the proposed actions and does not defer to him for decision making. However, sometimes events happen and things have happened before the coordinator gets back to him. 58 With respect to RSO’s calling coordinators to seek guidance on matters contained in the house manuals or policy documents, Mr Henry said that he had done this but at a very minimal level.59

[33] It was explained by Mr Henry that he determines which health professional clients see as all of the clients have their own doctors. However, not all of the doctors are at the surgery five days a week. Therefore, depending on the issue, he decides how to deal with the situation but the priority is to get the client to a doctor and quickly. In terms of whether he or the other worker should call an ambulance or take a client to the doctor, it was said to be a matter of judgement as to whether he could leave the other worker to look after the clients whilst he left the house. He said that he made that judgement call without talking to the coordinator. Mr Henry stated that generally, the worker who is on shift attends the medical appointments with the resident, following a call to the coordinator. If the coordinator is unable to attend, he would go with the client. This is despite the procedure being that Ms Gould or another coordinator would go if his coordinator couldn’t. 60

[34] Mr Henry agreed that the coordinator’s role is to make sure that the arrangements are in place and that there is funding. He said that his role is to take the person to the allied health professional, make sure that their paperwork is up-to-date and their Medibank card and that everything is organised and processed and that all the paperwork is done. 61 It was agreed that the procedural thing to do is to contact the coordinator if he determines that there is a change in the behaviour or health of a resident. However, if you cannot get to the phone or have time to make a call or get to the coordinator, he makes a command decision and he would call an ambulance or whatever.62

[35] With respect to podiatry appointments, it was stated that he arranges these because, when they have gone to the previous appointment, another appointment date is given. This is then recorded in the house diary which the coordinator will come and check. It was recounted that the RSO’s often make a courtesy call to the coordinator or send a text message about one of the clients going to podiatry or for a blood test. However, if they do not get an opportunity to tell the coordinator, then it is in the diary for them to see. 63

[36] In terms of implementing holiday programs, the last time Mr Henry did one was two years ago, in conjunction with the coordinator, through an activity planner. With respect to holiday programs, it was Mr Henry’s evidence that he is not aware of any holiday programs that have taken place. He said that they are spoken about in staff meetings occasionally. It was agreed that that part of his statement is therefore incorrect as it does not happen. 64

[37] With respect to the development of goals and objectives for clients, Mr Henry indicated that there has not been a house meeting this year and that they did not have one until late last year. He said that generally anything around the goals and objectives for a client is left to the RSO’s in that he has taken two different clients to an AFL football game. Things such as the Launceston Show come up in between staff meetings and they are thought of and implemented and the paperwork goes in as a result of talk amongst the RSO’s in the house. The coordinator will then be made aware and he will look into the budget aspect of it. In terms of the client’s goals being set by the family, Mr Henry explained that each client’s family circumstances are different. He said that the RSO’s have input into the paperwork around resident’s goals. 65 It was also indicated that it is a team environment and that he would help the coordinator establish the goals, objectives and outcomes for clients.66

[38] In regard to the evaluation of person centred plans, Mr Henry stated that they have input into the evaluation, in that they assist with the evaluation, but that they do not do the actual evaluation. He said that he has assisted in the development of the personal plans. 67 With respect to liaison with external support services, he stated that the clients attend various organisations and that they have established communication with various people in those organisations. He explained the nature of the liaison when handing over a resident to the external service. He stated that it was not just the administrative passing on of information but integral things to the client’s well being that day eg amount of sleep etc.68

[39] With respect to playing a role in the development of the programme for the client with the external provider, Mr Henry explained that, when he was a key worker, he would represent a particular client and work out the programs that could be implemented for that client through the external service. He confirmed that there have not been key workers since June 2012, despite it being in the new Position Description. However, it was stated that he does a monthly report to his coordinator about two clients and argued that, if he is not seen as a key worker for those two clients, why does he not do a general report for all of the clients? Also, why don’t the other two RSO’s do reports across all of the four clients as well? 69

[40] Mr Henry stated that he performs a number of tasks that are needed to be done for the residents or for the house. These were said to include making appointments, doing banking et cetera. 70

[41] In relation to the exercise of initiative, Mr Henry explained that, in general terms, there are a lot of things that you do with initiative. However, he could not express what he wanted to say in terms of specific examples. 71 He confirmed that, when he was appointed, the classification descriptor about using initiative, discretion and judgement in planning and organising work was pertinent.72

[42] Mr Henry explained that, with respect to the administration of prescribed medications and that documentation, it was not part of the training that comes with the medication endorsement. Rather, it is a reflection of a time factor in that, after the other person has gone, the responsibility comes back to him being the person remaining in the house on shift. He said that he would get his bum kicked if he did not go back and check that the other person had done the medication as they said they had. 73

[43] In terms of clients’ record management, Mr Henry recounted that he brings each client’s daily notebook (journal) up-to-date by recording all of the relevant information eg whether they have slept well etc. They also make appropriate phone calls e.g. to somebody’s mother who has rung up. As well, they complete the staff communication book which concerns matters regarding the house but not any information about clients. It was agreed that these are clerical procedures. 74

[44] It was Mr Henry’s view that he is responsible if anything happens to a resident if he is the only person there. He explained that he would take personal responsibility for the running of the shift. It was agreed that all staff are responsible for the care of the client - if they are there. 75

[45] With respect to providing on-the-job training to other employees, Mr Henry explained that it was even more specific than that - it was specifically around the shift and knowing the clients. An example was described as assisting/providing advice to another employee about the specific needs of clients in order to avoid angry behaviour. 76

[46] Mr Henry also explained that they schedule work programmes for the clients e.g. there are tomatoes that need to be watered and so they might ask the clients to come and assist. Lots of these types of opportunities were said to happen when they happen. 77

[47] It was also recounted by Mr Henry that he had to present incident reports in a coherent manner for psychologists and psychiatrists. This entails setting out everything that is appropriate including all of the relevant information about the client. Then, through cooperation with the coordinator, the psychologists and psychiatrists would ask him questions. He said that it is not a matter of simply collating all of the incident reports in order of seriousness and that it is not just a clerical task. It was stated that, because he is reporting on the number of incidents, number of medication ones etc and because he is going to be asked relevant questions, he has to be up with it as he was one of the people on shift at the time. Mr Henry recalled that the last time he did this was over two years ago, prior to the new Position Description. 78

[48] When going with the client to an appointment with a health professional, it was recounted by Mr Henry that they take a medication sheet with all of the relevant information on it (written report) and answer the doctor’s questions (oral report). They then come back and email the relevant people the doctor’s recommendations. To be able to do this was said to mean that they have to have some idea so that they can pass on the doctor’s recommendations properly. 79

[49] Mr Henry stated that Liviende had not told him that he needed a thorough knowledge of policies and procedures or a working knowledge of legislation relevant to the workplace. However, it was his view that it is necessary to have a thorough knowledge of policies and procedures. He agreed that they are all available on Liviende’s intranet. 80

[50] In terms of the sort of guidance that coordinators provide, it was explained by Mr Henry that coordinators are not generally available to provide guidance on how to do tasks e.g. showering a client. He said that it was generally left to the people on shift as, although coordinators do come to the house periodically, they are not there for that purpose but to do other things. 81

(b) Liviende

Ms Tanya Petrie

[51] Ms Petrie is Program Manager with Liviende and she provided written 82 and oral evidence.

[52] Ms Petrie described her role as being responsible for the day-to-day operations of the service (the day support and community support services). She said that she has direct supervision and responsibility for the day support service i.e. anything to do with the clients. She also manages the coordinators and has contact with the residents, although not as much as a coordinators. 83

[53] It was recounted by Ms Petrie that her understanding is that the pay and classifications come from the Award and that the conditions come from the MEA. Although she is part of senior management, Ms Petrie said that she has not been too closely involved. 84 It was also stated that there are no longer RSA’s as everyone is now employed at Level 2 of the Award.85

[54] Ms Petrie explained that the RSA’s were re-profiled to RSO (Level 4 under the Agreement) for equity reasons. This was due to there being little difference in the work of an RSA compared with an RSO, except for participation in personal planning for clients and key worker roles. RSO’s, who had previously worked as RSA’s, were saying that they were doing the same work as RSA’s. 86 Ms Petrie was very firm that what had been happening was that the duties and tasks of the two roles were the same.87 She found it hard to agree with the proposition that, after one week’s employment, there would be no difference between that person and a person with three years experience. This is because she believed that people are different and a new employee may have a lot of confidence and enthusiasm compared with an employee with 10 - 20 years experience.88

[55] It was stated by Ms Petrie that she did not recall that the old Position Description for Level 4 (RSO) clearly provided for supervision of RSA’s (Level 3). 89 She explained that no supervision is required as all RSA’s are equal. Therefore, they do not require supervision from another RSA. Ms Petrie did not believe that an experienced employee who shows a new employee the correct way to perform a particular task was supervising that employee. She agreed that it is appropriate that there be an employee on shift to show new employees, hands-on, how to perform tasks. However, Ms Petrie viewed this as familiarisation rather than supervision or training.90 It was explained that buddy shifts share information with the new employees but are not accountable for the work of the new employee or for coordinating workflow.91

[56] Ms Petrie indicated that neither Mr Henry nor Mr Eddy (nor any of the other employees) were promoted to the position of RSO. Rather, they had been appointed. She agreed that, at the time of their appointment, Liviende made a judgement that they were expected to perform the tasks and duties are set out at Level 4. 92

[57] With respect to the development of Person Centred Plans for clients, Ms Petrie explained that RSO’s, as part of a team, contribute to the drafting of the Person Centred Plans. It was stated that they do not develop and implement those plans. 93 She said that the Position Descriptions (July 2012) are not wrong but that it has not been the practice for RSOs to evaluate personal plans. Along with other people, they have been involved in the development of them but it is not their primary role.94 With respect to the Position Description being dated July 2012, it was said that Position Descriptions are constantly evolving and are not static.95

[58] In terms of clients’ personal care plans, it was Ms Petrie’s evidence that these are developed in consultation with allied health professionals. RSO’s are part of this but they do not show initiative or develop them as such. RSO’s, as part of a team of people, would be involved in evaluating these plans. 96

[59] With regard to whether RSO’s work “under general direction”, it was Ms Petrie’s view that they work within a solid framework of policies and procedures and report to, and are supervised by, coordinators. Therefore it was said to be a combination of the policies and procedures and direction from the coordinators. 97

[60] Ms Petrie acknowledged that Level 4 employees are capable of solving problems of limited difficulty - but to a very limited degree. It was also indicated that Level 4 employees have access to senior employees for assistance but disagreed that it was not readily available. She said that a coordinator did not have to physically go to the house to provide assistance. She did not agree that, because coordinators have been removed from the houses and are operating on a phone call system, they were not readily available. It was stated that a coordinator would be available in person if an employee was really struggling. 98

[61] In regards to the on-call coordinator, Ms Petrie explained that assistance is available from that person over the phone. The on-call person may be in Hobart or in Launceston but it was indicated by Ms Petrie that it does not have to be the on-call coordinator who goes to the house, if that is what is required. She stated that she would get called by the Hobart on-call coordinator if necessary and then others including the CEO, if she was not available. It was said that there is a difference between “readily” and the “availability” and that there was always availability. 99

[62] With respect to whether Level 4 employees have a thorough knowledge of work activities, Ms Petrie indicated that generally they do but not all staff. This was because there were some long serving employees who had become complacent. 100

[63] In terms of whether RSO’s have a working knowledge of statutory requirements or are developing that knowledge, it was Ms Petrie’s view that there they are developing it. She explained that the policies and procedures framework encompasses the legislation so that it is not critical that an RSO has a thorough working knowledge of the Disability Services Act. 101

[64] Ms Petrie indicated that, on occasion but rarely, new employees have been rostered on the long shift after one week’s experience. She said that she was not comfortable putting a new employee to the sector on a long shift. 102

[65] With respect to a medical emergency, it was Ms Petrie’s evidence that, in the first instance, the employee should make a decision as to whether or not to administer emergency first aid and then call an ambulance. She indicated that these decisions did not involve the employee using their discretion or experience. Rather, the staff have been told that, if they are ever in doubt, they are to call an ambulance. 103 The coordinator was said to be largely in the hands of the support worker in terms of advising what is happening on site in an emergency. The coordinator could not really make a decision without the support worker giving their opinion.104

[66] In regards to developing and implementing family visits, Ms Petrie disagreed that an RSO would use their initiative in first determining and then advising as to when and how a client may benefit from a family visit. She indicated that it is mainly families or the client who initiate contact, rather than the RSO. 105

[67] Ms Petrie agreed that Level 4 employees may exercise initiative by identifying that a client may have behavioural or health issues. This is then referred to the coordinator. It was explained that, as part of the role of working with a client for a shift, issues would be identified by the employee. There is a process for reporting these issues. 106

[68] It was confirmed by Ms Petrie that RSO’s make comments about clients in communications books and assist in the records relating to clients. 107 She disagreed that, in terms of the scheduling of the work program, the RSO and the coordinator work together. It was stated that it is usually that the employee is under the instruction of the coordinator.108

Ms Jan Gould

[69] Ms Gould is the Client Services Coordinator with Liviende and she gave written 109 and oral evidence.

[70] It was explained by Ms Gould that her role is to plan, coordinate and monitor medical service delivery given to clients and to ensure that it is the correct service delivery for their individual needs. 110 She explained that she attended all specialist appointments with clients and, when the coordinator was not available, their medical appointments. She also goes into all of the houses and sometimes undertakes mini audits of medication. This was said to give her a broad knowledge of the clients and the staff. She liaises with government departments, residents’ families and doctors and also with external services when there is a vacancy. In terms of the filling of the vacancy, Ms Gould recommends to Liviende as to whether or not a person may be suitable to fill the vacancy.111

[71] Ms Gould recalled that she was regularly contacted (daily) by RSO’s, regarding a wide range of client issues. These included questions about medication, doctors appointments et cetera. She described the contact as the RSO’s seeking guidance about what they should be doing. It was said that about half of the queries could have been looked up in the house manual. 112

[72] It was confirmed that, in 2011, the team leaders (house managers) were replaced with coordinators who look after two houses. The reason for the change was so that the team leaders would not have to do the day-to-day tasks. However, Ms Gould indicated that she had asked coordinators to go into houses to backfill shifts. She explained that, when this situation occurs, the coordinators do not always work in the house for a full shift. Rather, it would be until someone else could come in. However, the coordinator would still be available by phone and, if it was after hours, on call would be answering any queries from their other houses. If a coordinator was unavailable (showering a client), the call would be diverted to herself or Ms Petrie. 113

[73] In a medical emergency, Ms Gould explained that she would go directly to the hospital if the client was already on the way there. In an emergency, it was stated that an ambulance needed to be called, in the first instance, followed by the coordinator or on-call. 114 The support worker at the time was required to follow the emergency policies and procedures. Whether or not to provide emergency first aid was said to be a decision made by the support worker.115 Unless it was very much a life-and-death emergency, support workers would not be making medical decisions as nothing medical happens without consent.116 If the relevant coordinator was not available, either she or Ms Petrie or any of the other coordinators would be available to provide guidance in this situation.117

[74] Ms Gould explained that she is not responsible for any rostering except when she is on-call and has to fill shifts. She was not aware if two employees with one week's experience had been rostered on together or had been rostered to a long shift. 118

[75] With respect to problem solving a problem of limited difficulty (Level 3 descriptor), it was Ms Gould’s view that whether RSO’s were capable of doing this depended on the particular RSO and the amount of experience they have. However, if someone has been appointed at Level 4 in the Agreement, she indicated that that person should be capable of solving problems of limited difficulty. 119

[76] In terms of a support worker having to deal with a client exhibiting challenging behaviours, Ms Gould explained that the houses have a health care (personal) folder and that all clients with challenging behaviours will have a plan. This would provide guidance on how to deal with such behaviour. 120 With respect to Liviende’s policy121 on this issue, it was recounted that the employee is expected to protect themselves from injury. It was accepted that, in such a situation, in the heat of the moment, the support worker has to use their initiative and their experience in deciding whether to use evasion, crisis communication or restraint. Ms Gould thought that it was instinctive in terms of how the support worker reacted.122 It was also said that it would be normal for the more experienced RSO on shift to take more responsibility for dealing with the challenging behaviour than the less experienced RSO.123 Ms Gould also thought that a less experienced employee may gladly take advice from a more experienced RSO about how tasks will be allocated for that day.124 However, she stated that Mr Eddy is not responsible for managing other staff.125

[77] With respect to Mr Henry’s involvement/providing advice about a client with challenging behaviours, Ms Gould indicated that Mr Henry and day support would not have any interaction or discussion of the challenging behaviours together. This is because the first call from day support would go to the coordinator. 126

[78] In terms of the emergency administration of medication, Ms Gould agreed that that was the performance of a task or duty exercising initiative and discretion. 127

[79] With regard to developing and implementing family visits, it was Ms Gould’s evidence that the RSO’s can recommend to coordinators that a client may benefit from a family visit. 128 In terms of whether an RSO, having identified that a client is ill, makes the call as to whether a doctor needs to be involved, Ms Gould said that sometimes the doctor’s appointments have already been pre-arranged.129

[80] It was Ms Gould’s evidence that the coordinators work with the staff in planning their work. She agreed that coordinators would have a difficult job managing and planning the work of RSO’s if the RSO’s did not have input into the plans. 130

[81] In terms of the employer’s list of indicative tasks which state that RSO’s prepare client budgets and assist residents to manage their finances, it was Ms Gould’s evidence that the coordinators do the budgets and assist the residents with their finances. It was agreed that it is a support worker who goes on outings with the clients, who hold the finances on their behalf and who assist the client. 131

Mr Mark Tipper

[82] Mr Tipper is a Residential Coordinator at Liviende. He gave written 132 and oral evidence.

[83] Mr Tipper is responsible for two houses with five permanent staff in each. He is responsible for the care and well-being of the residents in the two houses, the properties themselves and the staff. Prior to becoming a coordinator, and he was a house manager of one of the houses. He indicated that, as a house manager, he knew the residents fairly well. As a coordinator, he has contact with the residents when he goes into a house to assist with preparing for doctor’s appointments, dealing with any issues in the house etc. 133

[84] It was stated by Mr Tipper that he has contact with the RSO’s by phone or e-mail (if it is not urgent). An example of such contact was an RSO calling to ask when a doctor’s appointment should be made (when was he available?). 134 In terms of Mr Henry, it was recalled that he had often received calls, texts or e-mails from him asking whether he will be attending a doctor’s appointment; or advising that a particular client has a budgetary need that requires addressing or asking how to download a timesheet. Mr Eddy was recounted as having emailed asking for towels and clothes to be ordered or to budget money for them.135

[85] Mr Tipper contended that assistance is readily available from coordinators and that he is able to get to a house straight away. For those coordinators who cannot do this, it was said that they would issue instructions on what to do. He agreed that it was always better if somebody was on hand to assist. However, a coordinator answering the phone in a few seconds was thought to constitute being readily available. 136

[86] It was explained by Mr Tipper that he is required to attend doctor’s appointments with the client. If he cannot make it, another coordinator goes along. With specialist appointments, Ms Gould goes and he also, if available. With allied health appointments, he attends the first visit with a staff member. For subsequent visits, the staff member goes with the client. 137 In terms of who makes the decision that a doctor/specialist should be seen by a client or an ambulance called, Mr Tipper stated that it is his decision.138

[87] With respect to medical emergencies, Mr Tipper explained that he had received such calls when on-call. These have included being advised that a resident is unwell and needs to go to hospital or that an ambulance has been called because a resident is ill and needs to go to hospital. Other incidents whilst on-call have concerned clients’ medications and accidents, including a car accident where a vehicle came through the laundry of one of the houses. 139

[88] It was Mr Tipper’s view that it was not necessary to have an employee experienced in administering medication on shift. He recounted an incident where the more senior staff member (RSO) had given the wrong medication which had been picked up by the RSA (short shift person). 140

[89] Mr Tipper explained that it was his understanding that the Level 3 and 4 positions no longer exist as they were translated over to Level 2 and that the old RSO’s and RSA’s are now at the same level. This meant that the old Level 4 is the same as the new Level 2. 141 He indicated that the way it used to be was that a Level 4 employee had a Certificate IV. Currently, some people are working towards their Level 4. Mr Tipper said that it is a learning curve for everyone as there will be information that they do not know. The experienced staff are providing on-the-job training, irrespective of whether they are long shift or short shift staff. Even if employees do not have their medication endorsement, they are still required to do the same duties and tasks within the legal limits. This included not being able to administer medication. It was acknowledged that they do not strictly do the same tasks but it was said that the medication endorsed employee on shift would take over at that stage.142

[90] It was confirmed by Mr Tipper that the coordinator roles were implemented 10 months before the union notified a dispute to the Commission. He said that he received an updated Position Description when he became a coordinator. It was his understanding that, as part of the transition for the new award, the positions were reviewed and the new Position Descriptions created. It was also due to the coordinator is coming in house. He therefore thought that the modern award coming into operation caused Liviende to restructure the business. 143

[91] Mr Tipper agreed that, when an appointment is made at Level 4, there would be an expectation that a person would perform the tasks, or be expected to perform the tasks, that are described in the classification descriptor for that level. When RSA’s were appointed to that level, it was confirmed that they were only expected to perform the tasks and duties of that level. Prior to the changes, the RSA’s were not expected to perform the classification descriptors of Level 4. Before the changes, it was explained by Mr Tipper that there was an RSO and an RSA on shift. The RSA’s worked predominately on the short line and did slightly different tasks. However, it appeared that a lot of the short line staff (Level 3’s) were actually doing the same work as the Level 4’s. 144

[92] With respect to significant medical emergencies, it was stated that the procedure in the house manuals stipulates that the first thing to do is to call an ambulance and then the coordinator. Mr Tipper agreed that the procedure also provides that staff may provide medical assistance without obtaining consent. In terms of the staff member providing emergency first aid, it was Mr Tipper’s view that, somewhere along the line, they would call an ambulance. It was agreed that a staff member may deliver first aid, then call an ambulance and then call the coordinator. Mr Tipper went along with the proposition that the ambulance and the coordinator rely heavily on the staff member’s skill and experience in being able to explain what has happened. However, he put a caveat on that - as far as the staff member’s first aid training allows. 145

[93] It was confirmed by Mr Tipper that coordinators are not at the homes at all times. He said that it is arguable that, if there is an RSO and an inexperienced employee on shift, the RSO would be supervising the other employee in the sense of showing them how best to perform the tasks et cetera. 146 Also, a former RSO would more likely have an input into how the task would be allocated rather than an employee with one - two weeks experience.147

[94] Mr Tipper explained that, sometimes, an employee with one week’s experience, would be rostered on the long shift. It was said that they normally would try to get someone who has knowledge and experience in the house but sometimes, there is no one available. 148

[95] With respect to the established, detailed procedures, it was Mr Tipper’s view that, wherever possible, employees work to them. There were said to be some adjustments that can be made following a call to the coordinator requesting the adjustment. Mr Tipper said that there is a certain amount of discretion within the procedures for employees to act with initiative and discretion in applying the procedures. His view was that support workers have freedom to act but within established practices. As well, problems can usually be solved by reference to procedures/instructions with assistance available when problems occur. However, this did not apply in respect of clients’ standard routines as a lot of clients do not tolerate any changes to their routine/processes. 149

[96] In terms of the identification of changes in clients’ behaviours, Mr Tipper explained that the changes will be identified by the staff in the house who would then advise himself. 150 It was clearly stated that restraint is not an option utilised by Liviende for dealing with challenging behaviours. Crisis communication and evasion were said to be the only options.151 In emergency situations, rather than exercising discretion and initiative, Mr Tipper said that it was mostly common sense.152

[97] With respect to the day support, it was Mr Tipper’s evidence that, if an issue arises, day support will contact the coordinator directly, rather than the RSO. He indicated that he was aware of communication between RSO’s and day support about clients, as part of the handover of the client at drop-off and pickup. This was then often advised to the coordinator once a staff member returned to the house. 153

[98] In regard to the residents’ finances, Mr Tipper explained the system that operates in the house in respect of the RSO’s and the residents’ money. This was said to be a ledger system operated by the RSO. Mr Tipper’s statement also indicated that RSO’s do not budget on behalf of their residents as this is a coordinator’s duty. 154

[99] Mr Tipper recounted that the process of preparing Person Centred Plans for the residents is a joint effort involving input from all of the staff in the house and other stakeholders (e.g. families, day support agencies). Mr Henry was said to be part of the team and that he provides some information and assists when required. Once all of the information is collected, the coordinator works out what goals are achievable and then formalises them. 155

[100] It was denied that the Level 4 employees have a significant role in planning and coordinating functions such as birthday parties. They were said to make suggestions to the coordinator who gives approval and an activity plan is then developed. Any in-house activity plans can be approved by the coordinator whilst external ones go to the Program Manager for ratification. Once approval is given, the Level 4 employee may be requested to make the necessary arrangements. Most of the staff were said to play a role as they work as a team to get the job done. 156

[101] It was confirmed by Mr Tipper that RSO’s manage and plan their work in conjunction with their coordinator. Mr Tipper agreed with Mr Henry’s statement subject to the plans having been cleared with him. 157

[102] Mr Tipper explained that the administering of medication is dependent on a staff member being medication endorsed. This was said to be independent of whether the employee is Level 3 or Level 4. 158

[103] With respect to the key worker position, it was Mr Tipper’s recollection that it was disbanded between 12 and 20 months ago. 159 He agreed that some staff may have a better knowledge of work practices and procedures than others. Begrudgingly, Mr Tipper acknowledged that, save for medical reasons, once a person has gained a thorough knowledge, that knowledge does not necessarily disappear.160

[104] In terms of whether everyone in the house works as a team with the coordinator the head of the team, Mr Tipper agreed with Mr Henry’s statement that he operates as a member of the team. 161

Ms Rachel Jansen

[105] Ms Jansen is the Human Resources Manager at Liviende. Ms Jansen provided written 162 and oral evidence.

[106] Ms Jansen explained that there is a quality assurance officer who ensures that the policies and procedures are regularly reviewed and updated. She indicated that the house procedure manual sets out the requirements of the day to day operations of the staff who work in the houses. 163 The policies and procedures were described as prescriptive and it was said that they have evolved over time.164 The purpose of the procedures was stated as informing staff about how to behave and how to provide guidance as to the clients’ needs and what goes on in a house on a day-to-day basis. Ms Jansen explained that the procedures are very detailed and that no interpretation is required except common sense.165

[107] With respect to the memorandum she issued in October 2013 stating that Ms Peterson had taken account of a range of matters, including Johns C’s decision, Ms Jansen said that she would have assumed that Ms Peterson had considered that decision. 166 It was explained that, in terms of these issues, she had sought legal advice about a number of memoranda to ensure consistent communication. She could not recall whether she had received advice about this particular memorandum.167

[108] Ms Jansen gave evidence that, when the RSO’s were appointed to Level 4, the Level 4 Position Description reflected their work at the time. The organisation had made a considered decision that the RSO’s were capable of performing the Level 4 tasks. This included the level at which somebody will operate (accountability, discretion et cetera) as well as the tasks that are to be performed. Ms Jansen also indicated that an employee may not do every task on the Position Description every day. 168 It was confirmed by Ms Jansen that Mr Eddy and Mr Henry and all of the RSO’s were appointed, not promoted, to Level 4.169

[109] Ms Jansen recounted that structural changes began following the resignation of a house manager in November 2011. It was explained that, prior to that time, there had been general discussion internally about the suitability of the house manager position. With the resignation of house manager, Liviende took the opportunity to trial the residential coordinator position (which took them off the roster and gave them flexibility to work with staff at the different houses). Liviende trialled it also with a contract southern coordinator position as well. 170 Further, it was explained by Ms Jansen that, prior to the restructure, there were six house managers and a team leader in Hobart. This was reduced to 3 coordinators and a southern coordinator. In the north, six house managers became three coordinators.171

[110] In terms of the coordinator positions, it was explained by Ms Jansen that three coordinator positions were able to provide the same direction as the six house managers because they were taken off-line. She disagreed that coordinators would find it difficult to know the specific details of each client as they were no longer dealing with them hands-on. Ms Jansen said that coordinators are more available to do that work and that they regularly observe how clients’ specific needs are attended to. She did not agree that, with the restructure from house manages to coordinators, there was a greater need for RSO’s to use their discretion and to problem solve problems of limited difficulty. She stated that the functions of an RSO have not changed. 172

[111] It was stated by Ms Jansen that residential coordinators are required to be available regularly at the houses and provide supervision to staff and support clients. After hours, there is an on-call system whereby the coordinators are rostered to be regularly available. If the on-call person is in Hobart and there is a requirement to attend a house in Launceston, it was explained that the Program Manager or CEO would be called. 173

[112] With respect to the re-profiling of staff at Level 4, Ms Jansen explained that this entailed looking at the required tasks and summarising them in the form of a Position Description. She indicated that employees who were taken from Level 3 in the Agreement are expected to be capable of, and do perform, the tasks described at Level 4. This included the capability of supervising employees at lower classification levels. It was said that they do not necessarily do this but, as it was in their Position Description, they are capable and will be trained to do so. Ms Jansen agreed that Level 4 employees work under general supervision and use discretion within the scope of Level 4; that they undertake work that may be non routine in nature and are subject to preset objectives for work assignments. It was also agreed that Level 4 employees may be accountable for their work and the work of others; use initiative and discretion and judgement in planning and organising their work and understand and use a limited range of non-verbal communication. 174 Ms Jansen agreed that employees have freedom to act within established procedures and that problems can usually be solved by reference to procedures and instructions and assistance is available.175

[113] It was indicated by Ms Jansen that, when employing new RSO’s, they are appointed under the modern award at Level 2 with the classification level, under the Agreement, of Level 4. She agreed that potentially, a new employee with one - two weeks’ experience could be asked to work the long shift (sleepover). With the restructure, Level 4 employees can be rostered across both the long and short shifts. It was stated that it had become evident to the organisation that Level 3 (RSA) employees and Level 4 (RSO) employees were performing the same duties and functions. However, this was not reflected in the Position Descriptions at the time. 176

[114] With regard to the letter from Ms Jansen’s predecessor stating that the revised Position Description did not alter employees’ current duties, Ms Jansen indicated that she was not there at the time and so could not comment. 177 As far as she understood, the work of the employees did not change with the revised Position Description and that the employees just kept on doing the same work.178

Mr Paul Byrne

[115] Mr Byrne is the Chief Executive Officer of Veranto. Mr Byrne gave written 179 and oral evidence.

[116] Mr Byrne confirmed that his organisation employs disability support workers at Level 4 pursuant to the MEA. He indicated that, since the introduction of the modern award, the Level 4 employees were translated to Level 2. 180 It was explained that, when there is a position at Level 4 under the Agreement available, the organisation would determine the person most suitable for the position and whether the person had the most appropriate training, skills and qualifications.181

[117] It was stated that, in the past, his organisation had employed people at Level 4 of the Agreement according to the classification descriptors for that level. It was expected that the employees would be capable of performing the tasks and duties described for that level, as was required. 182

[118] Mr Byrne indicated that the organisation had received advice from James O’Neill and Associates in relation to this dispute. It was explained that the CEO’S from a number of organisations had met together as an industry. 183 He stated that he had had no input into how Liviende has translated their staff to Level 2 of the Award and that he had no idea about Liviende’s process for translating employees.184

[119] For Veranto, Mr Byrne explained that the organisation sought advice and then looked at each position and translated it accordingly. It was indicated that the process that Veranto went through was to look at the requirements of the positions and the classification descriptors and align the two. He said that the organisation looked at the classification descriptors, what the requirements of the position were and where those positions lined up. Mr Byrne stated that, looking at an individual, it is a question of what you are requiring them to do within the classification. It was further explained that the purpose of an employee's role is what the organisation requires them to do. The organisation looks of the requirements of the position and then classifies them appropriately. 185

Ms Carol Peterson

[120] Ms Peterson is a consultant in the disability field. 186

[121] Ms Peterson recalled that she was approached by Liviende in March 2013 regarding reviewing the translation of Liviende staff. It was originally to have been a Liviende/union project but, when she commenced the project, it was only for Liviende that a report was prepared following her review in October 2013. 187

[122] It was confirmed by Ms Peterson that she had particularly looked at the roles of the employees in question based on the descriptors - supervising, training, initiative and problem solving. Ms Peterson recalled that she had found that there was some confusion among staff as to what each of the terms meant. The confusion was put down to change. She therefore looked at what people did and asked them what they did and didn't do. It was recounted that there was enough there for her to be convinced that staff were not in a place to make good judgements about matters which would be expected of a Level 3 employee. She said that she also found that coordinators were available for assistance. 188

[123] Further, it was Ms Peterson’s view that she did not believe that staff were operating at Level 3 but rather at Level 2. From her experience, organisations pay at Level 3 where there is a level of community liaison and responsibility for developing relationships and making judgements in relation to other (external) organisations. She explained that she was provided with the Position Description and the former Tasmanian Agreement and an organisation structure by Liviende. She already had a copy of the Award. She was not given a copy of the policies and procedures but saw the house manuals when she went into the houses to interview staff. 189

[124] With respect to the Memorandum that Ms Jansen had sent to staff regarding her report, Ms Peterson indicated that it was not correct where it stated that she had taken account of all of the relevant matters, including the requirements of Johns C’s decision. She said that she was aware of the decision as it came out early on in the project. However, she did not address it in the report as she was not asked to. 190 Ms Peterson later indicated that she had been provided with a copy of Johns C’s decision but that it was later on. She said that she had taken the decision into account as she agreed with the Commissioner where he talked about the clarity of the Award and the semantics used and how to manage the tension between words that are arguable and actual tasks. This was said to be what she took into account as she was doing it anyway. It was stated that she had not taken account of the Agreement descriptors because she was looking at what people were actually doing. She looked at Johns C’s decision and took it into consideration. However, her focus was said to be on what people were doing and not on words that can be argued.191

[125] In terms of the report being titled “Draft” Report, Ms Peterson stated that that was a typo and that it is actually the final report. She explained that the original draft report was written prior to interviewing other organisations. The final report was issued after the other organisations had been interviewed. Therefore, there were changes between the draft and the final report. However, there were no changes as a result of Johns C’s findings. 192

[126] Ms Peterson recalled that, as she had interviewed most of the staff in the houses, she had people working around her. Sometimes the residents were there, other times not. 193 She agreed that she had assessed the work of the employees she observed against the Level 3. It was stated that she had done an assessment against Level 2 and then a comparison with Level 3 as this was what she was asked to question. Ms Peterson explained that she had asked people what they did and what was the differentiation in the work as they saw it.194

[127] With respect to her interviews at Tasmania Inc, Ms Peterson recalled that, if staff had some involvement and authority in community liaison, they would be classified at Level 3. Also, staff involved in individual plans who took some authority in that area, were recognised at a higher level. 195

[128] In terms of the first descriptors in Level 3 in the Award (works under general direction in the application of procedures, methods and guidelines which are well-established), it was Ms Peterson’s view that the RSO’s need close instruction of every aspect of the work. She said that the evidence showed that the general directions and well-established practices had not been followed at a fairly basic level. Whilst RSO’s are expected to act within well-established practices, she had found that they did not always act within them. It was Ms Peterson’s evidence that the staff needed more than general direction. It was her view that the staff required actual instruction on how to do fairly basic tasks. 196

[129] With respect to the second Award classification descriptor which includes solving problems of limited difficulty, Ms Peterson stated that she would expect Level 4 employees to be able to do that. However, she said that the issue was the Level 2’s under the new Award and the new Position Description. She believed that the Level 4 employees met this descriptor in part only. 197

[130] The third descriptor was said to be more within the scope of an RSO’s position i.e. in their interactions with residents, they do or are able to exercise initiative. They were not expected to initiate changes in plans or programs as this was outside their scope of authority. Ms Peterson explained that she did find that the RSO’s work with their coordinator as part of a team to establish their goals. This was said not to comprise responsibility for establishing the goals and objectives, as this lay with the coordinators. Rather, it involves contributing as part of the team. The same differentiation between RSO’s and coordinators was said to exist regarding Person Centred Plans and taking residents to the doctor or to a day program. 198

[131] Ms Peterson discussed the differences between the words “supervised”, “directed”, “trained” and “guided”. She said that you can have one without the other - in terms of “directed” versus “guided”. It was stated that if you want to have direction, you cannot have supervision. 199 She explained that, from her perspective of the industry, it was not necessary for an employee to have their supervisor in close proximity at all times. This was said to be on the assumption that there are proper relationships and communications in place.200

[132] In terms of the on-call system for after office hours, it was Ms Peterson’s view that this is not a classification issue but a management issue. She indicated that such a system works in terms of supervision in other organisations in the sector. 201

[133] With respect to the descriptor that provides for the supervision of lower classified staff, Ms Peterson explained that she had found that there was mutual support between staff but that there were no supervisory expectations. 202

[134] It was Ms Peterson’s view that it was common practice that, after two buddy shifts, an employee would be working at exactly the same level as an employee with far greater experience. She said that, when there was a more experienced person, that person would orientate the new employee to the tasks and to the house. 203

[135] In terms of responsibilities (B.3.2), Ms Peterson agreed that “may” suggested that it would not be an expectation that a particular employee fulfil all of those responsibilities at that level. 204

[136] With respect to the descriptor “Exercise responsibility for a function within the organisation”, Ms Peterson said that this was an odd description and explained that she had asked questions about what functions in the house the staff member might undertake e.g. maintenance, emergency management. She had also asked about what functions the staff member contributed to the organisation e.g. occupational health and safety. As she did not know what “function” meant, she had made these attempts to be as clear as she could be about what “function” meant. 205

[137] In terms of the level of initiative is exercised at the RSO level, Ms Peterson described it as rudimentary as there is no initiative expected out of established work practices. It was agreed that the procedures cannot cover every possibility but she said that staff should be able to make basic decisions e.g. whether to call for assistance. 206

[138] With regard to administration, Ms Peterson stated that residential staff were not expected to do banking and financial administration. 207 It was explained that RSO’s handle records (onto the computer) and the day books.208

[139] It was Ms Peterson’s view that, in terms of the requirements of the job (B.3.3), these were required but only at the Level 2. This was on the basis that the application of the knowledge of work activities, the procedural and operational requirements and statutory requirements is only within the household. If that knowledge is used outside the household and in the community, it would not be possible to prescribe the level of judgement required. It was acknowledged that it is possible that experienced Level 4 employees would have that thorough knowledge. However, it was said that what it is about is the expectations of the job which are at a certain level as reflected in the Position Description. Based on what she had seen, Ms Petersen did not accept that once that knowledge had been acquired, it could not be lost. 209

[140] Ms Peterson agreed that, within the defined established procedures, RSO’s have freedom to act - as long as it is done appropriately. She also indicated that, on the basis of the operational instructions and the Position Description, problems can usually be solved by reference to procedures et cetera and that assistance is available when problems occur. 210

Mr Stephen Daley

[141] Mr Daley is Executive Director of Devonfield Enterprises and Chairman of Family Based Care North West. 211 Mr Daley gave written212 and oral evidence.

[142] Mr Daley indicated that he had attended a number of joint meetings with other CEO’s and James O’Neill and Associates where a range of industrial relations matters were discussed. He had also attended a meeting regarding an update on this dispute. He stated that he had not had any discussions with any other party about the details of this dispute. In terms of whether it was James O’Neill himself who provided the update on this dispute, Mr Daley could not recall. He indicated that a number of representatives from James O’Neill and Associates were at the meetings. 213

Mr James O'Neill

[143] Mr O'Neill is a Senior Partner and Director of James O'Neill and Associates. He provided a written statement 214 and gave oral evidence.

With respect to the background/history of the MEA, it was Mr O'Neill’s evidence that:

The first wages agreement was the result of a desire by the industry to improve staff attraction and retention and it was designed to lift the wages of support workers.

Given a very short window to put it in place once government funding had been received, the classification descriptors, which had been in the Disability Service Providers Award since 1995, were inserted in the wages agreement together with a new (higher) 4A classification which reflected dealing with clients with complex needs and behaviour.

The industry recognised that, at some point in time, work needed to be done on the descriptors due to the considerable changes in the industry.

With the advent of the Fair Work Act and modern awards, the industry approached the union about a multi employer enterprise agreement – which was agreed. The current classification descriptors were inserted in the MEA out of expediency, together with all of the other award provisions.

The MEA had a nominal expiry date 12 months out but the negotiations for a new agreement failed. Therefore, the MEA is still on foot. 215

Not all employers remain covered by the MEA as some have made their own single enterprise agreements. 216

[144] It was agreed by Mr O’Neill that, during this dispute, the question arose regarding the interpretation of section 206 of the Act. It was stated that Johns C had made a decision in relation to section 206 and that he agreed with the Commission’s decision in that regard. 217 Mr O'Neill also indicated that the firm had provided Liviende with advice as to how to interpret Johns C’s decision.218 He explained that the firm advised the client that one must look at the actual work in satisfying section 206. One looks at the actual work and then the Award to determine the appropriate classification level. It was his view that it is inappropriate to look at the Agreement classification descriptors in relation to section 206.219

[145] Mr O’Neill agreed that, purely on the words, the Level 4 classification descriptors in the MEA best align with the descriptors for Level 3 in the Award. However, he stated that the classification descriptors in the MEA are very old and that the industry has changed. While staff are classified at Level 4, it was argued that it does not mean that the descriptors accurately reflect what the employees are required to do. 220 He said that, when the classification descriptors were put into the MEA in 2011, he had advised employers that those descriptors would pertain to the employees they employed. Mr O'Neill also said that, however, the industry was aware that work needed to be done on them and that there was expediency required to get the Agreement in place.221

Ms Janette Martin

[146] Ms Martin is the Chief Executive Officer of Liviende Inc. Ms Martin gave a written 222 and the oral evidence.

[147] It was Ms Martin’s evidence that, prior to the Johns C’s decision, the focus of the translation process of employees from Level 4 to Level 2 was on the body of work that the employees performed. Following the Johns C’s decision, there was discussion about the Commissioner’s statement that both the classification descriptors and the work performed were important. It was recalled that Johns C’s decision was not taken into consideration when the employees were originally translated. This was because the employees had been translated prior to the decision. Ms Martin stated that the focus was mainly on the body of work people do as the significant component but that the classification descriptors were considered, albeit very, very lightly. 223 Ms Martin indicated that she had read Johns C’s decision and believed that the main emphasis of the decision was on the body of work.224

[148] With respect to Liviende’s letter 225 to the union, dated 23 October 2013, Ms Martin referred to the third substantial paragraph as evidence of having considered the classification descriptors. It was explained that the organisation looked at the body of work that people were doing and, as it progressed, what the independent assessor had to say.226

[149] Ms Martin explained that the re-profiling of staff from Level 3 to Level 4 came about as a result of some staff (RSA’s) arguing that they were doing the same work as RSO’s and that it was not fair. Liviende then reviewed in depth the Position Descriptions and what people were doing. It was decided that the organisation should take the opportunity to recognise that employees who are classified under the MEA as Level 3 were doing the same work as employees classified as Level 4. It was said that the Level 3 and 4 classifications had a lengthy history and that what Liviende was trying to do was to capture what was currently happening. 227 There was said to have been a cost implication (not huge) resulting from the re-profiling of Level 3 employees to Level 4. However, Ms Martin recounted that it was believed to be better to revalue the work that Level 3 employees were doing rather than devalue Level 4’s.228

[150] It was explained by Ms Martin that she agreed with Johns C’s statement that it was reasonable to assume that having employed an RSO at Level 4, the employer has made a considered decision and determined that each employee performs or is expected to perform the tasks in the Position Description and at the level provided for in the Agreement. Ms Martin stated that, when employees were appointed to Level 3, they would have been expected to undertake the tasks of the Level 3 Position Descriptions. She said, however, that what people do evolves over time and that the Level 3/Level 4 construct is very embedded in the late 1990s practice. It was acknowledged that Liviende had signed the multi-employer enterprise agreement in 2011 with the classification descriptors as they were then. However, Ms Martin explained that there was a lot of discussion about the need to do a lot of work on the Level 4 descriptors. 229

[194] On this basis, therefore, I am satisfied that on a descriptor to descriptor comparison, the Level 4 Agreement classification descriptors best align with those of Level 3 of the Award.

[195] In terms of the assessment of where the work of RSO’s fits within the Award, the starting point for such an assessment is the Position Description for the position of RSO, dated 18 June 2012. 329 This is the Position Description which currently applies to RSO’s and it is the one to which the RSO’s are working. It arose out of a thorough review of the work that was being undertaken by the former RSA’s and RSO’s. It was Ms Jansen’s evidence (Human Resources Manager) that this Position Description reflected the work of RSO’s at the time (June 2012) and that the organisation had made a considered decision that RSO’s were capable of performing those tasks including the level of responsibility, accountability et cetera. At the time of the re-profiling of Level 3 staff and the creation of the current Position Description, it was Ms Jansen’s recollection that employees who were moved from Level 3 in the Agreement were expected to be capable of, and perform, the tasks set out in Level 4. This included the capability of supervising employees at lower classification levels.

[196] The Position Description has not been subsequently revised. Therefore, the Commission is entitled to assume that this Position Description can be accepted as setting out the duties that Liviende can expect or require RSO’s to perform. It is accepted that nobody is required to perform all of the duties all of the time. Ms Jansen, in her evidence, stated that an employee may not do every task in the Position Description every day. There was evidence before me that the employer, subsequently, has no longer wished for certain key tasks and duties to be performed. However, as the Position Description has not been revised, the Commission is entitled to assume that the current Position Description sets out the tasks, duties and responsibilities that RSO’s can be expected, or required, to perform, by the employer.

[197] Taking the Position Description as representing the tasks, duties and responsibilities of RSO’s, the question then is where do these fit in the Award classification structure. As indicated earlier, the union’s view is that Level 3 of the Award is the best fit whilst Liviende’s contention is that it is Level 2 of the Award.

[198] To assist in this assessment, the key elements of the Position Description have been compared with the corresponding parts of the classification descriptors of both Level 2 and Level 3 of the Award. The results are as follows:

Position Description	Classification Descriptors Award - Level 2	Classification Descriptors Award - Level 3
1. Supervising the work of others (including work allocation, rostering and providing guidance) (Position Summary) May be required to provide limited guidance to a limited number of lower classified employees. (Supervision)	Supervising the work of others (including work allocation, rostering and providing guidance) (B.2.2(n)) May be required to oversee and/or guide the work of a limited number of lower classified employees. (B.2.1(d)) Provide assistance to lower classified employees concerning establish procedures. (B.2.1(c)) Provide limited guidance to a limited number of lower classified employees. (B.2.3(c)(ii))	May be required to supervise lower classified staff or volunteers in the day to day work. (B.3.1(d)) May provide assistance to lower classified employees. (B.3.1(b)) Supervision of a limited number of lower classified employees. (B.3.2(i)) Supervision of other employees. (B.3.3(c)(iv)) Training, coordinating and supervising other employees and scheduling work programmes. (B.3.2(o)) Those with supervisory responsibilities may undertake some complex operational work and may undertake planning and coordination of activities within a clearly defined area including managing day to day operations of the group of residential facilities. (B.3.1(d)) Those with supervisory responsibilities should have a basic knowledge of human resource management and be able to assist subordinate staff with on-the-job training. (B.3.1(f)
2. Works under general guidance and operates within established routines, methods, standards and procedures. (Supervision)	Works under general guidance within clearly defined guidelines. (B.2.1(a)) Performs functions defined by established routines, methods, standards and procedures. (B.2.1(b))	Works under general direction in the application of procedures, methods and guidelines which are well-established. (B.3.1(a))
3. Responsible for managing time, planning and organising their own work.(Supervision)	Responsible for managing time, planning and organising their own work. (B.2.1(d))	Responsible for managing and planning their own work and that of subordinate staff. (B.3.1(e))
4. Undertake a range of activities requiring the application of established work procedures. (Level of responsibility)	Undertake a range of activities requiring the application of: acquired skills and knowledge (B.2.1(a)) / established work procedures (B.2.2(a))	Take overall responsibility for the personal care of residents. (B.3.2(o)) Undertake responsibility for various activities in a specialised area. (B.3.2(a) Exercise responsibility for a function within an organisation. (B.3.2(b)) Assist in a range of functions and/or contribute to interpretation of matters for which there are no clearly established practices and procedures (but is not solely responsible for this) (B.3.2(d))
5. May exercise limited initiative and/or judgement within clearly established procedures and/or guidelines. (Level of responsibility)	May exercise limited initiative and/or judgement within clearly established procedures/or guidelines. (B.2.2 (a)) Limited scope to exercise initiative in applying work practices and procedures. (B.2 .1(b)) Have freedom to act within established guidelines. (B.2.3(d)(ii)) Solutions to problems may require the exercise limited judgement, with guidance to be found in procedures, precedents and guidelines. (B.2.3(d)(iii))	Solving problems of limited difficulty using. (B.3.1(b)) Allow the scope for exercising initiative in the application of established work practices, establish procedures and/or guidelines. (B.3.2(j) and B.3.1(c))
6(a). Assisting in the development or implementation of resident care plans or the planning, cooking or preparation of the full range of meals under limited supervision either individually or as part of a team. (Key tasks and duties) (b). Implementing client skills and activities programmes under limited supervision either individually or as part of a team assisting in the development or implementation of resident care plans. (Key tasks and duties) (c) Supervising or providing a wide range of personal care services to residents under limited supervision either individually or as part of a team. (Key tasks and duties)	Assisting in the development or implementation of resident care plans or the planning, cooking or preparation of the full range of meals under limited supervision either individually or as part of a team. (B.2.2(m)) Implementing client skills and activities programmes under limited supervision either individually or as part of a team. (B.2.2(k)) Supervising or providing a wide range of personal care services to residents under limited supervision either individually or as part of a team. (B.2.2(l))	See Number 4 above.
7. Assist in the management of house accounts and individual resident accounts. (Key tasks and duties)	Perform sensitive tasks including... the receiving and accounting for monies and assistance to clients. (B.2.2(h))	Provide secretarial and/or administrative support requiring a high degree of judgement, initiative, confidentiality and sensitivity in the performance of work. (B.3.2(e))

[199] On first blush, on the basis of the table above, it would appear that the RSO Position Description better aligns with Level 2 of the Award, rather than Level 3. As can be seen, there are a number of elements of the Position Description that reflect the Level 2 Award classification descriptors.

[200] However, the table does not include a further three Key tasks and duties contained in the Position Description. These are:

Participate with the House Manager/Coordinator and other stakeholders in the Personal Planning Process for Residents, including the development, implementation and evaluation of individual programs for Residents, as identified within the Personal Planning Process.

Participate in the development of behavioural management programs for Residents where necessary.

Where nominated, take on the role/responsibility as a Resident’s key worker.

[201] These key tasks and duties were contained in the previous Position Description for a Level 4 RSO. There was evidence that the employer no longer requires the key worker role to be performed, nor the involvement of RSO’s in the evaluation and implementation of Personal Plans for clients. However, as indicated earlier, the Commission is entitled to assume that the Position Description represents the duties and responsibilities that someone who is appointed to this position is expected to perform, or does perform, by the employer.

[202] It is my view that these responsibilities fall within the purview of Level 3 of the Award. This is because they require the exercise of initiative, judgement and problem solving which is higher than that contemplated by Level 2 of the Award. Level 2 talks in terms of the exercise of limited initiative and/or judgement and the resolution of minor work procedural issues. On the other hand, the Level 3 Award classification descriptors include solving problems of limited difficulty using knowledge, judgement and work organisational skills and scope for exercising initiative in the application of established work procedures. These three duties and tasks, therefore, align with Level 3 of the Award.

[203] When all of the duties and responsibilities of RSO’s, as set out in the Position Description, are taken into account, I find that the position of RSO best fits within the Level 3 Award classification description.

[204] Therefore, on the basis of the outcome of both assessments (a descriptor to descriptor comparison and where does the work of an RSO fit under the Award), I further find that the position of Level 4 RSO best aligns with Level 3 of the Award.

[205] Before finally determining this matter, there are two other issues that need to be addressed. The first issue is, that it was submitted by Liviende in its written closing submissions (for the first time), that Mr Eddy and Mr Henry (and presumably all of the other RSO’s) were made redundant from a date prior to 1 July 2012. There is no evidence before me that Mr Henry and Mr Eddy, nor any of the other RSO’s, were notified of this or that there was consultation with the employees and the union, as required by the Agreement. Such a concept as this (that employees were made redundant without their knowledge) is unknown in employment law.

[206] The second issue also concerns an argument raised, for the first time, in the employer’s closing submissions. It was in effect that, given the terms of section 206 of the Act (which refers to “an employee” and not “employees”) the dispute only relates to Mr Henry and Mr Eddy. It was clear from the beginning, that the dispute has been run by the union, on the basis of a test case for all RSO’s employed by Liviende. The employer’s opening submissions, witness statements and witnesses’ evidence have not been exclusively directed towards Mr Henry and Mr Eddy. In addition, Johns C’s decision deals with the dispute on the basis of all of the employees employed as RSO’s, not just Mr Henry and Mr Eddy. As there are a number of employees employed in the same position as Mr Henry and Mr Eddy, working to the same Position Description, it is a matter of logic that the same result will flow if the prism of this decision is applied to them on an individual basis. Therefore, as a matter of efficiency, the findings set out in this decision apply to those employees employed as RSO’s by Liviende, including Mr Eddy and Mr Henry.

[207] Therefore, I find that, in accordance with the terms of section 206 of the Act, the base rate of pay that would be payable to the employees concerned (RSO’s), under the modern award (award rate), is that of Level 3 of the Award. As indicated earlier, it is common ground between the parties that the agreement rate is that of Level 4 of the Agreement.

Appearances:

Mr J Eddington for the Health Services Union of Australia

Mr A Cameron of James O'Neill & Associates Pty Ltd for Liviende Inc

Hearing details:

2014.

Launceston:

March 17, 18.

Final written submissions:

Applicant, 26 March 2014

Respondent, 27 March 2014

Applicant, 28 March 2014

1 [2013] FWC 4435 at [2]

2 [2013] FWC 6830 at [60] - [65]

3 Exhibit A1 at Attachment EB - A

4 Transcript PN 589

5 Ibid PN 613 - 618

6 Ibid PN 742 - 746 and 758 - 759 and Exhibit A1 at Attachment EB - A at paragraphs 15(f) and (h)

7 Ibid PN 809 - 814 and ibid at paragraph 15(i)

8 Ibid at PN 61 - 638, 820 - 823, 829 and 944 and ibid at paragraph 6

9 Ibid PN 639 - 641

10 Ibid PN 639 - 644 and 819

11 Ibid PN 672 - 676, 700 and 955 - 956

12 Ibid PN 683 - 690

13 Ibid PN 691 - 696 and Exhibit A1 at Attachment EB - A at paragraph 15

14 Ibid PN 697 - 699

15 Ibid PN 719 - 720 and Exhibit A1 at Attachment EB - A at paragraph 15(d)

16 Ibid PN 722 - 726

17 Ibid PN 814 - 818 and Exhibit A1 at Attachment EB - A at paragraph 15(j)

18 Ibid PN 730 - 734 and ibid at paragraph 15

19 Ibid PN 735 – 741 and ibid at paragraph 15(e)

20 Ibid PN 958

21 Ibid PN 749 - 757

22 Ibid PN 959 - 960

23 Ibid PN 824 - 828 and Exhibit A1 at Attachment EB - A at paragraph 15(k)

24 Ibid PN 830 - 833 and ibid at paragraph 15(l))

25 Ibid PN 835 - 848

26 Ibid PN 975

27 Ibid PN 838 - 839

28 Ibid PN 849 - 858

29 Ibid PN 872 - 873

30 Ibid PN 876 - 894

31 Ibid PN 976 - 978

32 Ibid PN 895 - 919 and Exhibit A1 at Attachment EB - A at paragraph 15(p)

33 Ibid PN 920 - 928 and ibid at paragraph 15(q)

34 Ibid PN 982 - 983

35 Ibid PN 945 - 950

36 Ibid PN 957

37 Exhibit A1 at Attachment EB - B

38 Ibid at paragraph 15(d) and Transcript PN 1002, 1079, 1134 and 1234

39 Ibid PN 1006 - 1007

40 Ibid PN 1141 and 1248 - 1254 and Exhibit A1 at Attachment EB - B at paragraph 15(i)

41 Ibid PN 1240 and 1286

42 Ibid PN 1014 - 1015, 1046 and 1248 - 1254

43 Exhibit R1 at Attachment 7

44 Transcript PN 1029

45 Ibid PN 1236

46 Ibid PN 1031 - 1034 and Exhibit A1 at Attachment EB - B at paragraph 6

47 Ibid PN 1036 - 1041

48 Ibid PN 1255 - 1265

49 Ibid PN 1043 and Exhibit A1 at Attachment EB - B at paragraph 8

50 Ibid PN 1052

51 Ibid PN 1044

52 Ibid PN 1047 - 1048

53 Ibid PN 1244 - 1247

54 Ibid PN 1054 - 1068

55 Ibid PN 1269 - 1270

56 Ibid PN 1071 - 1072

57 Ibid PN 1073 - 1074 and Exhibit A1 at Attachment EB - B at paragraph 15(b)

58 Ibid PN 1075 - 1077 and ibid at paragraph 15(c)

59 Ibid PN 1078

60 Ibid PN 1080 - 1086

61 Ibid PN 1088

62 Ibid PN 1089 - 1090

63 Ibid PN 1091

64 Ibid PN 1092 - 1098

65 Ibid PN 1099 - 1106 and Exhibit A1 at Attachment EB - B at paragraph 15(e)

66 Ibid PN 1282 - 1285

67 Ibid PN 1110 - 1112 and ibid at paragraph 15(g)

68 Ibid PN 1113 - 1123

69 Ibid PN 1130 - 1132, 1147 - 1151 and 1266 - 1267 and Exhibit A1 at Attachment EB - B at paragraph 15(l)

70 Ibid PN 1142 - 1144 and ibid at paragraph 15(j)

71 Ibid PN 1146 and ibid at paragraph 15(k)

72 Ibid PN 1288 - 1290 and 1294 - 1295

73 Ibid PN 1157 - 1165 and ibid at paragraph 15(m)

74 Ibid PN 1171 - 1181 and ibid

75 Ibid PN 1182 - 1987 and Exhibit A1 at Attachment EB - B at paragraph 15(p)

76 Ibid PN 1188 - 1193

77 Ibid PN 1194 - 1201 and Exhibit A1 at Attachment EB - B at paragraph 15(p)

78 Ibid PN 1202 - 1208)

79 Ibid PN 1219 - 1216

80 Ibid PN 1222 - 1225 and Exhibit A1 at Attachment EB - B at paragraph 15(q)

81 Ibid PN 1271 - 1272

82 Exhibit R1 at Attachment 6

83 Transcript PN 2379 - 2384

84 Ibid PN 2394

85 Ibid PN 2390 - 2391

86 Ibid PN 2396 - 2402 and Exhibit R1 at Attachment 6 at paragraph 5

87 Ibid PN 2401 and 2404 - 2405

88 Ibid PN 2408 - 2412

89 Ibid PN 2406

90 Ibid PN 2416 - 2422

91 Exhibit R1 at Attachment 6 at paragraph 7

92 Ibid at paragraph 25 and Transcript PN 2425 - 2430

93 Ibid at paragraph 9 and ibid PN 2431 - 2440

94 Ibid at paragraph 14 and ibid PN 2503 - 2509 and 2512

95 Ibid PN 2530 - 2531

96 Ibid PN 2512 - 2514

97 Ibid PN 2441 - 2444

98 Ibid PN 2445 - 2450

99 Ibid PN 2451 - 2458

100 Ibid PN 2460 - 2462

101 Ibid PN 2464 - 2467

102 Ibid PN 2468 - 2477 and Exhibit R1 at Attachment 6 at paragraph 10

103 Ibid PN 2480 - 2487 and ibid

104 Ibid PN 2524 - 2526

105 Ibid PN 2489 - 2494 and Exhibit R1 at Attachment 6 at paragraph 12

106 Ibid PN 2496 - 2498 and ibid

107 Ibid PN 2515 and ibid at paragraph 15

108 Ibid PN 2516 - 2523 and ibid at paragraph 16

109 Exhibit R1 at Attachment 30

110 Transcript PN 2023 - 2024

111 Ibid PN 2025 - 2026

112 Ibid PN 2033 - 2039

113 Ibid PN 2152 - 2063

114 Ibid PN 2064 - 2068

115 Ibid PN 2069 - 2071

116 Ibid PN 2091 - 2095

117 Ibid PN 2073

118 Ibid PN 2075 - 2081

119 Ibid PN 2085 - 2090

120 Ibid PN 2095 and 2130 - 2134

121 Exhibit R1 at Attachment 16

122 Transcript PN 2101 - 2110

123 Ibid PN 2119 and Exhibit R1 at Attachment 30 at paragraph 8

124 Ibid PN 2124

125 Ibid PN 2135 - 2136

126 Ibid PN 2120 - 2122 and Exhibit R1 at Attachment 30 at paragraph 10

127 Ibid PN 2112 and ibid at paragraph 5

128 Ibid PN 2113 - 2114 and ibid at paragraph 6

129 Ibid PN 2115

130 Ibid PN 2116 - 2118 and Exhibit R1 at Attachment 30 at paragraph 7

131 Ibid PN 2125 - 2128 and ibid at paragraph 12

132 Exhibit R1 at Attachment 31

133 Transcript PN 2150 - 2154

134 Ibid PN 2155 - 2156

135 Ibid PN 2173 - 2174

136 Ibid PN 2315 – 2322 and Exhibit R1 at Attachment 31 at paragraph 5

137 Ibid PN 2155 - 2158

138 Ibid PN 2159

139 Ibid PN 2178 - 2179

140 Ibid PN 2196 - 2198

141 Ibid PN 2202

142 Ibid PN 2202 - 2211

143 Ibid PN 2222 - 2227 and Exhibit R1 at Attachment 31 at paragraph 1

144 Ibid PN 2228 and 2230 - 2233 and ibid at paragraph 5

145 Ibid PN 2234 - 2246

146 Ibid PN 2247 - 2249

147 Ibid PN 2310 - 2313 and Exhibit R1 at Attachment 31 at paragraph 4

148 Ibid PN 2250 - 2251

149 Ibid PN 2254 - 2255 and 2296 - 2297 and Exhibit R1 at Attachment 31 at paragraph 3

150 Ibid PN 2260 - 2261

151 Ibid PN 2267 - 2294

152 Ibid PN 2295

153 Ibid PN 2299 - 2309 and Exhibit R1 at Attachment 31 at paragraph 4

154 Ibid PN 2323 - 2325 and ibid at paragraph 6

155 Ibid PN 2327 - 2329 and ibid at paragraph 7

156 Ibid PN 2330 – 2332 and ibid at paragraph 9

157 Ibid PN 2333 - 2335 and ibid at paragraph 10

158 Ibid PN 2336 and ibid at paragraph 12

159 Ibid PN 2337 and ibid at paragraph 14

160 Ibid PN 2341 - 2348

161 Ibid PN 2351 - 2358 and Exhibit R1 at Attachment 31 at paragraph 17

162 Exhibit R1 at Attachment 3

163 Transcript PN 1856 - 1859

164 Ibid PN 1963 - 1970

165 Ibid PN 1972 - 1976 and 1979

166 Ibid PN 1863 - 1868

167 Ibid PN 1869 - 1872

168 Ibid PN 1876 - 1886

169 Ibid PN 1873 - 1875

170 Ibid PN 1888 - 1892 and Exhibit R1 at Attachment 3 at paragraph 4

171 Ibid PN 1904 - 1905 and ibid

172 Ibid PN 1906 - 1914 and ibid

173 Ibid PN 1916 - 1918 and ibid

174 Ibid PN 1919 - 1932

175 Ibid PN 1977 - 1978

176 Ibid PN 1937 – 1957 and Exhibit R1 at Attachment 3 at paragraph 4

177 Ibid PN 1896 - 1899

178 Ibid PN 1981 - 1984

179 Exhibit R1 at Attachment 1(C)

180 Transcript PN 1622 - 1625

181 Ibid PN 1634

182 Ibid PN 1635 - 1638

183 Ibid PN 1639 - 1645

184 Ibid PN 1646

185 Ibid PN 1647 - 1692

186 Ibid PN 1700

187 Ibid PN 1702 and Exhibit R1 at Attachment 29

188 Ibid PN 1707 - 1708

189 Ibid PN 1709 - 1711 and 1813

190 Ibid PN 1713

191 Ibid PN 1713 - 1724

192 Ibid PN 1726 - 1733

193 Ibid PN 1734

194 Ibid PN 1735 - 1746

195 Ibid PN 1750 - 1752

196 Ibid PN 1759 - 1760

197 Ibid PN 1761 - 1763

198 Ibid PN 1764 - 1770

199 Ibid PN 1771 - 1773

200 Ibid PN 1812

201 Ibid PN 1774 - 1785

202 Ibid PN 1786

203 Ibid PN 1788 - 1789

204 Ibid PN 1790 - 1791

205 Ibid PN 1792 - 1793

206 Ibid PN 1794 - 1799

207 Ibid PN 1800 - 1802

208 Ibid PN 1803

209 Ibid PN 1804 - 1806

210 Ibid PN 1807 - 1808

211 Ibid PN 1824 - 1826

212 Exhibit R1 at Attachment 1(B)

213 Ibid PN 1830 - 1834

214 Exhibit R1 at Attachment 1(A)

215 Transcript PN 1350

216 Ibid PN 1351

217 Ibid PN 1355 - 1359

218 Ibid PN 1362

219 Ibid PN 1383 - 1389

220 Ibid PN 1390 - 1396

221 Ibid PN 1398

222 Exhibit R1 at Attachment 2

223 Transcript PN 1440 - 1445 and 1449

224 Ibid PN 1450 - 1451

225 Exhibit A1 at Attachment EB - M

226 Transcript PN 1446 - 1448

227 Ibid PN 1452 - 1456 and Exhibit R1 at Attachment 2 at paragraph 10

228 Ibid PN 1470 - 1471

229 Ibid PN 1457 - 1469

230 Ibid PN 1472 - 1485

231 Ibid PN 1492 - 1498

232 Ibid PN 1499 - 1500 and 1585 - 1587

233 Ibid PN 1501 - 1505

234 Exhibit R1 at Attachment 26

235 Transcript PN 1515 - 1536

236 Exhibit R1 at Attachment 9

237 Transcript PN 1569 - 1576

238 Ibid PN 1571 - 1584

239 Exhibit R1 at Attachment 16

240 Transcript PN 15437 - 1542

241 Exhibit A1 at Attachment EB - F

242 Transcript PN 1555 - 1559

243 Ibid PN 1560 - 1562

244 Ibid PN 1563 - 1565

245 Exhibit A1 at paragraph 9

246 Ibid at paragraphs 14 - 16

247 Ibid at paragraphs 18 - 19

248 Ibid at paragraph 19

249 Ibid at paragraph 12 and Closing Submissions of the union, dated 27 March 2014, at paragraph 2A

250 Closing Submissions of the union, dated 27 March 2014, at paragraph 2A

251 Ibid and Exhibit A1 at paragraph 20

252 Closing Submissions of the union, dated 27 March 2014, at paragraph 2B

253 Ibid at paragraph 2C

254 Ibid at paragraph 2D.1

255 Ibid

256 Ibid at paragraph D.2 and Response to Closing Submissions, by the union, dated 28 March 2014 at paragraphs 15 and 20

257 Response to Closing Submissions, by the union, dated 28 March 2014 at paragraph 15

258 Ibid

259 Ibid at paragraph 14

260 Closing Submissions of the union, dated 27 March 2014, at paragraph D.3

261 Ibid at paragraph D.4 and Response to Closing Submissions, by the union, dated 28 March 2014 at paragraph 16

262 Ibid at paragraph D.5

263 Ibid at paragraph D.6 and Response to Closing Submissions, by the union, dated 28 March 2014 at paragraph 13

264 Closing Submissions of the union, dated 27 March 2014

265 Response to Closing Submissions, by the union, dated 28 March 2014

266 Ibid at paragraphs 1 - 2

267 Ibid at paragraphs 3 - 5

268 Ibid at paragraph 6

269 Ibid at paragraph 19 and Closing Submissions of the union, dated 27 March 2014 at paragraph 7

270 Closing Submissions of the union, dated 27 March 2014, at paragraph 8

271 22 IR 291

272 Closing Submissions of the union, dated 27 March 2014, at paragraph 9

273 Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387

274 Closing Submissions of the union, dated 27 March 2014, at paragraph 10

275 Ibid at paragraph 11

276 Ibid at paragraph 18

277 Ibid at paragraph 12

278 Ibid at paragraph 21

279 Ibid at paragraph 22

280 Ibid

281 Ibid at paragraph 22

282 Exhibit R1 at Part A at paragraph 22

283 Ibid at Part A at paragraphs 1 - 21

284 Ibid at Part B at paragraphs 1 - 4 and 12 and Part D at paragraphs 16 - 18 and 20

285 Ibid at Attachment 7

286 Ibid at Part B at paragraphs 5 - 6

287 Ibid at Part B at paragraphs 7 - 9

288 Ibid at Part D at paragraph 18

289 Ibid

290 Ibid at Part B at paragraphs 11 - 17 and Part D at paragraphs 8 - 10, 18 and 21 - 22

291 Ibid at Part B at paragraphs 19 - 25 and Closing Submissions on behalf of the Employer, dated 27 March 2014, at Second Stream arguments paragraph 21 and Summary at (k) - (l)

292 Ibid at Part C and Part D at paragraphs 15 - 16 and Closing Submissions on behalf of the Employer, dated 27 March 2014, at First Stream arguments paragraphs 10 - 13

293 [1971] AR (NSW) 18

294 (1988) 25 IR 1

295 Exhibit R1 at Part C and Part D at paragraphs 15 - 16 and Closing Submissions on behalf of the Employer, dated 27 March 2014, at First Stream arguments paragraphs 10 - 13

296 (1973) IAS Current Rev 5

297 (2006) 157 IR 395; PR974595

298 Closing Submissions on behalf of the Employer, dated 27 March 2014, at First Stream arguments paragraphs 14 - 17 and Second Stream arguments and Summary at (c)

299 Exhibit R1 at Part D at paragraph 6

300 Ibid at Part D at paragraphs 6 - 7(a)

301 Ibid at Part D at paragraph 11

302 Ibid at Part D at paragraph 13

303 Ibid at Part D at paragraph 14

304 Ibid at Part D at paragraphs 19 and 22 and Closing Submissions on behalf of the Employer, dated 27 March 2014, at First Stream arguments at paragraphs 19 - 26

305 Ibid at Part D at paragraphs 15 and 22

306 Ibid at Part D at paragraph 18

307 Ibid at Part D at paragraph 21

308 Closing Submissions on behalf of the Employer, dated 27 March 2014, at First Stream arguments

309 Ibid at First Stream arguments at paragraphs 2 - 3

310 Ibid at First Stream arguments at paragraphs 4 - 9 and Summary at (a)

311 Ibid at First Stream arguments at paragraphs 27 - 32

312 Ibid at First Stream arguments paragraphs 48 and 50

313 Ibid at First Stream arguments at paragraphs 33 - 41

314 Ibid at First Stream arguments at paragraph 42 - 47

315 Ibid at Second Stream arguments at paragraph 1

316 Ibid

317 Ibid at Second Stream arguments at paragraph 2 - 3

318 Ibid at Second Stream arguments at paragraph 4 and Summary at (h) - (i)

319 Ibid at Second Stream arguments at paragraphs 5 - 6

320 Ibid at Second Stream arguments at paragraphs 7 - 8

321 Ibid at Second Stream arguments at paragraphs 9 and 14 - 15

322 Ibid at Second Stream arguments at paragraphs 10 - 11

323 Ibid at Second Stream arguments at paragraphs 10 - 13

324 [2014] FWCFB 1043

325 Closing Submissions on behalf of the Employer, dated 27 March 2014, at Second Stream arguments at paragraph 16 - 18

326 Ibid at Second Stream arguments at paragraphs 19 - 20 and Summary at (e) - (f)

327 Ibid at Second Stream arguments Summary at (l)

328 [2013] FWC 6830 at [59] - [65]

329 Exhibit A1 at Attachment EB - G

Printed by authority of the Commonwealth Government Printer

Health Services Union v Liviende Inc

[2014] FWC 4016

4 JULY 2014

DECISION