Hobart District Nursing Service Inc
[2018] FWC 4818
•17 AUGUST 2018
| [2018] FWC 4818 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Hobart District Nursing Service Inc
(AG2017/6670)
COMMISSIONER MCKINNON | MELBOURNE, 17 AUGUST 2018 |
Application for approval of the Hobart District Nursing Inc. Non-nursing Agreement 2017.
Introduction
[1] Application has been made for approval of a single enterprise agreement known as the Hobart District Nursing Inc. Non-nursing Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Hobart District Nursing Service Inc. t/a The District Nurses (TDN).
[2] The Australian Nursing and Midwifery Federation (ANMF) and the Health Services Union of Australia (HSU) were bargaining representatives for the Agreement and have given notice under s.183 of the Act that they want the Agreement to cover them. Both the ANMF and the HSU support the approval of the Agreement. However, the HSU has raised a number of concerns about the Agreement in relation to its content, whether it passes the better off overall test and whether it was genuinely agreed.
[3] The HSU’s objections in relation to the better off overall test arise from a dispute over the relevant modern award(s) that apply for the purposes of that test. TDN says the Health Professionals and Support Services Award 2010 1(the Health Award) covers and applies to its business, including all of its employees who will be covered by the Agreement. However, the HSU says the Social, Community, Home Care, and Disability Services Industry Award 20102 (SCHADS Award) covers and applies to TDN and its support workers and administrative employees in relation to work they will perform under the Agreement. 3
[4] TDN also contended that the Clerks – Private Sector Award 2010 4 (Clerks Award) covers its administrative and clerical employees5 but did not press the matter at hearing.
[5] The dispute about award coverage has its origins in a disagreement over whether TDN is covered by the Social, Community and Disability Services Industry Equal Remuneration Order 2012 6 (ERO), which increased wages by 18 to 41% for employees covered by the SCHADS Award in the “crisis assistance and supported housing sector” and the “social and community services sector” (but not employees in the “home care sector”).7 The HSU explained that TDN did not consider itself covered by the SCHADS Award and “didn’t need to pay the ERO”. TDN says it is not covered by the SCHADS Award and pointed to its ineligibility for government ERO-related funding in support of its position.
[6] Whether the ERO applies to TDN and its employees is not a matter before me. The ERO is an order of the Commission that operates separately to the SCHADS Award and its terms are protected by s.306 of the Act. 8 It is not relevant for the purposes of the better off overall test.
[7] There is no dispute that the Health Award, the SCHADS Award and the Clerks Award are all modern awards that were in operation at the test time 9 for the Agreement on 22 December 2017.
[8] The Commission held a hearing on modern award coverage on 12 July 2018 in Hobart.
[9] This decision determines the relevant modern award for the purpose of the better off overall test in relation to support workers and administration and clerical employees who will be covered by the Agreement.
Background
[10] TDN was founded in 1896 and describes itself as “the second oldest nursing service in Australia”. It is unique to Tasmania and the principal private provider of nursing and allied health care to that community. As an independent, not-for-profit, nursing and home care service it provides “general and specialist nursing care, personal care and domestic support to the frail elderly, the younger disabled and their carers residing within the community”. It has a “primary health care focus” and structures its service to assist individuals to remain in their own home environment and reduce premature or inappropriate admission to long term residential care. It provides home and community care as well as services to the veteran community and to private fee paying clients. 10
[11] TDN’s Strategic Plan for 2017-2022 sets out its vision to be “Tasmania’s most trusted home and community care provider” with a “primary health care focus”. 11 It derives revenue from multiple sources, the large majority of which comes from taxpayer funded health, community and disability programs. Revenue comes from both nursing/health professional services and home care services.12
[12] According to TDN, the majority of its clients have multiple health and home care needs and TDN is increasingly dependent on home care to enable good health care for its clients. Health care provided by TDN includes the management of disease, accidents and injuries as well as post-operative and palliative care. Home care provided by TDN is largely task orientated and includes provision of meals, showers, assistance with medical devices and dressing, cleaning, shopping and respite care. 13 TDN also conducts a Clinic for clients who do not have the facilities necessary for TDN to provide safe health care services in their home.
[13] Clients are referred to TDN through the National Disability Portal, Tasmanian hospitals or myagedcare.gov.au. Referrals through myagedcare.gov.au are distinguished between those that require nursing services and those that only require domestic services. According to TDN, it only takes these referrals where nursing services are required, even though other, non-nursing services might also be required. 14
[14] TDN employs registered and enrolled nurses and a small number of health professionals. Since 1995, TDN has also employed community support workers to perform personal care and/or domestic assistance duties as well as domestic support workers who only perform domestic duties. Community support workers now form a large proportion of TDN’s workforce. 15 TDN also employs executive, administration and clerical staff. It has relationships with other community care providers in Tasmania, providing nurses to them and contracting support workers from them as the need arises.
[15] Clients of TDN have individualised care plans managed by nursing staff. Community support workers administer the care plans, seeking direction from nursing or other staff as required. Community support workers are also trained in the “Staying Active, Staying Independent” (SASI) program for clients whose individual needs have been assessed by nurses, nurse practitioners and an exercise physiologist for the purposes of that program. 16
Relevant law
[16] A modern award covers an employer or employee if the award is expressed to cover the employer or employee. A modern award covers an employee in relation to particular employment. 17
[17] Whether a modern award covers an employer or employee in relation to particular employment depends on the objective meaning of the words used to define modern award coverage, bearing in mind the context in which those words appear and the purpose they are intended to serve. 18
[18] Interpretative guidance on award coverage may also be drawn from the “principal purpose” or “substantial character” tests in relation to whether an employee is covered by a particular modern award, but only where necessary and/or appropriate. 19
[19] In this matter, there is no apparent dispute about whether support workers and administration and clerical employees are covered by a modern award. The question is which modern award covers them. If the Health Award covers TDN, its support workers and administration and clerical employees who will be covered by the Agreement, the issue of whether those employees are also covered by the SCHADS Award and/or the Clerks Award does not arise. It is not necessary in that circumstance to deal with overlapping award coverage or to consider which of two competing modern award classifications is most appropriate to the work performed by employees of TDN and the environment in which they normally perform that work as might otherwise be required. 20
The Health Award
[20] The Health Award is an industry and occupational award that covers:
“(a) employers throughout Australia in the health industry and their employees in the classifications listed in clauses 14—Minimum weekly wages for Support Services employees and 15—Minimum weekly wages for Health Professional employees to the exclusion of any other modern award;
(b) employers engaging a health professional employee falling within the classification listed in clause 15.”
[21] Health industry is defined in clause 3 of the Health Award andmeans “employers whose business and/or activity is in the delivery of health care, medical services and dental services”. 21
[22] The word ‘and’ appears before ‘dental services’, and on a literal reading, might require an employer to be involved in each of health care, medical services and dental services to come within the health industry. However, that argument was not put by either party. Plainly, it could not be the case. For example, it is unlikely that a physiotherapy practice would also provide dental services. Clause 24.4 - Physiotherapy practices deals with only one part of the health industry and is clearly intended to be an operative term of the Health Award. Reading the definition of health industry in such a way would severely limit the scope of the Health Award, by excluding from coverage most businesses in the health industry providing services of the type listed in Schedule C.
[23] The meaning of health industry should instead be construed broadly, consistent with the longstanding approach to interpretation of industrial instruments. 22 For present purposes, TDN will be in the health industry if its business and/or activity is in the delivery of health care and/or medical services and/or dental services.
[24] Support Services employees covered by the Health Award are classified from levels 1 to 9, with each level reflecting a range of duties, skill, experience and responsibility. Relevant indicative roles for levels 1 to 7 are summarised below:
Level | Indicative role |
1 | Assistant gardener, cleaner, general clerk, laundry hand, food and domestic services assistant, social work/welfare aide |
2 | Driver, gardener, general clerk, housekeeper, maintenance/handyperson, unqualified cook, personal care worker grade 1 |
3 | Driver required to hold first aid certificate, general clerk, receptionist, personal care worker grade 2 |
4 | Clerk (ward, casualty, medical records etc.), driver, gardener, personal care worker grade 3 |
5 | Secretary, personal care worker grade 4 |
6 | Computer clerk, gardener, pay clerk |
7 | General clerical supervisor, general services supervisor, personal care worker grade 5 |
[25] Level 8 Support Services employees are experienced and may have specialist knowledge. They may report to management on finance, staffing, legislative requirements and other matters and have delegated responsibility for scheduling workloads, resolving operational problems, monitoring work quality, counselling staff, administering complex payroll systems, preparing quotes or costings based on detailed knowledge. They may hold relevant post-secondary qualifications. They may assist in the development of policy, new products or services. The classification description for a Level 8 Support Services employee is very similar to Level 5 in the Clerks Award, discussed later in this decision.
[26] Level 9 Support Services employees may be required to coordinate a range of organisational functions, as well as develop procedures, management strategies and guidelines. They would have substantial experience or post-secondary qualifications. They may prepare reports and complex correspondence for senior employees. They may be responsible for specific processes or group development training programs, mentoring, liaison with clients and other interested groups, and have general and specialist knowledge of the organisation and its activities. They may supervise a work group, small work area or office within the broader organisation and may undertake a combination of technical or professional, project, procedural or processing work.
[27] The Health Award also covers health professionals in levels 1 to 4. Health professionals have a relevant qualification and/or eligibility for membership of their professional association. Level 1 covers graduate health professionals in the early stages of their career. Level 2 covers health professionals who work independently and under supervision only when performing novel, complex or critical tasks. They may be actively involved in quality improvement activities or research.
[28] Level 3 health professionals are experienced independent professionals who also have additional responsibilities. They are specialists who actively contribute to development of their field, may be a sole practitioner, may have budget and expenditure accountability and mentor more junior staff.
[29] Level 4 health professionals have the capacity to manage large and complex organisations, may be responsible to the executive and develop/implement and deliver strategic business plans increasing customer care levels within a budget framework.
The SCHADS Award
[30] The SCHADS Award is an industry award that covers employers throughout Australia in the:
(a) crisis assistance and supported housing sector;
(b) social and community services (SACS) sector;
(c) home care sector;
(d) family day care scheme sector.
[31] The SCHADS Award also covers employers of those employees who are employed in the classifications in the Schedules to the Award.” 23 However, the SCHADS Award does not cover employers and employees covered by the Health Award.24
[32] There is no contention that TDN is in either the crisis assistance and supported housing sector or the family day care scheme sector.
[33] Home care sector is defined in clause 3 of the SCHADS Award as “the provision of personal care, domestic assistance or home maintenance to an aged person or a person with a disability in a private residence.” 25
[34] Social and community services sector is also defined in clause 3 and means “the provision of social and community services including social work, recreation work, welfare work, youth work or community development work, including organisations which primarily engage in policy, advocacy or representation on behalf of organisations carrying out such work and the provision of disability services including the provision of personal care and domestic and lifestyle support to a person with a disability in a community and/or residential setting including respite centre and day services. An employee can be engaged as a SACS employee to provide services in a private residence or in outreach.” 26
[35] Schedule B to the SCHADS Award contains the classification definitions for SACS employees. While not expressly stated, it is clear from the structure of the SCHADS Award that those classifications are relevant to employees in the SACS sector as defined. Similarly, classification definitions in Schedule E for home care employees are the relevant classification descriptions for employees in the home care sector as defined.
[36] Home care employees are classified from level 1 to level 5 in Schedule E to the SCHADS Award.
[37] Level 1 employees have less than 12 months’ experience in the industry and provide domestic assistance and support. This includes cleaning, vacuuming, dusting, washing and ironing, shopping, sweeping paths, minor maintenance jobs, preparation and cooking of meals, defrosting refrigerators, emptying and cleaning of commodes, banking and account payment, organising appointments, assistance with care of pets, and care of indoor and outdoor pot plants.
[38] Level 2 employees also provide domestic assistance and support. They may also provide personal care, supervising daily hygiene, laying out clothes and assisting in dressing, making beds and tidying rooms, preparation and cooking of meals and assistance with meals, dry cleaning, gardening, basic repairs, clean, fit and remove aids and appliances, monitor medications, fit and change catheters 27, assist with communication, accompany clients on outings, provide domestic assistance and organise appointments. They will have at least 12 months’ experience in the industry and may have a Home Care certificate or equivalent.
[39] Level 3 employees may be involved in more complex personal care, oversee domestic assistance or undertake clerical work, including computer or office work, meal and functions planning, ordering and preparation; liaison with dieticians on special needs; scheduling routine work programs; overseeing the work of up to four support staff including maintenance; plan, develop, and co-ordinate diversional therapy programs or general trades maintenance. They may be required to hold a Certificate 3 qualification or equivalent.
[40] Level 4 employees are in more senior administration, staff management and rostering roles. They may assist in the development of budgets; order consumables and routine stock items used in domestic support areas; develop client care plans and oversee the provision of domestic services.
[41] Level 5 employees include care co-ordinators, forepersons and maintenance supervisors.
[42] SACS employees are classified from level 1 to level 8 in Schedule B to the SCHADS Award. They perform a range of work covering administrative, domestic and personal care work as well as higher level policy, coordination and management roles. Relevantly, Level 1 SACS employees may perform routine clerical and office work, including general reception and telephonist duties. They may also be required to attend to personal care or generic domestic duties as part of the delivery of disability services.
[43] Level 2 SACS employees may perform duties including bookkeeping and banking, secretarial support, payroll and administrative assistance. As part of the delivery of disability services they might provide personal care services and/or implement client skills and activity programmes and/or assist with resident care plans or meal planning and preparation. They may hold a certificate 4 qualification or above.
[44] Levels 3 to 8 SACS employees require an increasing range of skills, knowledge and experience and take on additional responsibility. The classification descriptions cover different work to that of personal care worker or domestic assistant. The classifications are similar in many respects to comparable classification levels in the Agreements’ Administration and Clerical Stream, discussed later below.
The Clerks Award
[45] The Clerks Award is an industry award that covers:
“employers in the private sector throughout Australia with respect to their employees engaged wholly or principally in clerical work, including administrative duties of a clerical nature, and to those employees. However, the award does not cover an employer bound by a modern award that contains clerical classifications; or an employee excluded from award coverage by the Act.”
[46] The Clerks Award does not cover employers and employees who are covered by the Health Award. 28 It does not cover employers who are bound by another modern award that contains clerical classifications, as both the Health Award and the SCHADS Award do.
[47] Except in connection with call centres, the highest classification in the Clerks Award is Level 5. At that level, employees report to more senior staff in the organisation. They are experienced and may have specialist knowledge. They may report to management on finance, staffing, legislative requirements and other matters and have delegated responsibility for scheduling workloads, resolving operational problems, monitoring work quality, counselling staff, administering salary, payroll or travel and hold relevant post-secondary qualifications.
The Agreement
[48] The coverage of the Agreement is set out in clause 3 as follows:
“This Agreement applies to TDN and its Employees in positions classified within the classification structure contained in Appendix 1 (Classification, Salary Structure and Allowances) of this Agreement.”
[49] While the wording of the clause is imprecise, it is clear that the group of employees referred to in clause 3 is the group of employees who will be covered by the Agreement. Having regard to the legislative scheme, they will also be, once employed under its terms, the group of employees to whom the Agreement applies.
[50] Appendix 1 to the Agreement contains a table of classifications and pay rates for employees in the “Administration Stream”, the “Service Employee Stream”, the “Health Professionals Stream” and the “Support Worker Stream”. Classification descriptors are found in Appendix 3 (Administration and Clerical Stream), Appendix 4 (Support Worker Stream), Appendix 5 (Services Employees Stream) and Appendix 6 (Health Professionals Stream).
[51] Support Worker Stream employees are classified in levels 1 to 3. Requirements of each level are summarised below:
Level | Indicative role |
1 | First 12 months: Home help tasks only (eg. housekeeping, shopping, cooking, minor maintenance and sweeping paths, banking, organising appointments, caring for pets and outdoor pot plants) |
2 | After 12 months: Home help tasks only |
3 | Two of: Home help, Maintenance (basic repairs) or Personal care/support (daily hygiene, dressing, assistance with medical aids and appliances, monitoring medications, assisting with communication, outings). Certificate 3 in Aged Care or Home & Community Care |
[52] Administration and Clerical Stream employees are classified in levels 1 to 8. Indicative tasks for each level are summarised below:
Level | Indicative role |
1 | Range of clearly defined and attainable tasks/activities/outcomes; provision of routine information and internal referrals; maintain basic systems including client/service records |
2 | Range of defined area activities / responsible for collection of activities; provides client support services including referrals; assists in adaptation / interpretation of practices, procedures or guidelines under guidance May be required to sleepover at client premises |
3 | Degree, diploma or equivalent with limited experience; responsibility for internal functions or activities in specific areas; provide extensive client services; assessment and case management duties; plan and coordinate client services including training; adaptation / interpretation of practices, procedures or guidelines under guidance; may perform specialised functions; provide information services; plan and coordinate basic community based projects; perform moderately complex functions (social planning, demographic analysis, survey design and analysis) |
4 | Degree, diploma or equivalent with considerable experience; client needs assessments and referrals; specialised duties; identify performance outcomes and contribute to policy and practice development/interpretation; assist with grant applications; programme or service delivery functions; recruit, train and coordinate volunteers in single programmes; participate in interagency and collaborative projects or policy development activities; if specialised: liaise with technical specialists and clients on straightforward matters; lead teams; provide reference, research or technical information; undertake planning functions requiring knowledge of statutory and legal requirements; participate in planning and coordination of complex community programs; perform significant coordination/management functions for single programme services, small local community services or management of local service organisations |
5 | Degree, diploma or equivalent with considerable experience: help establish organisation programmes and procedures; responsibility for moderately complex projects; assist with organisation/program budgets; provide specialist advice including to lower level employees; recruit, train and coordinate volunteers in multiple programmes; plan, develop, coordinate and administer services; participate in recruitment and selection of staff; collaborate on assessment and intervention strategies and services including monitoring and evaluation; identify and respond to complex client needs; participate in development of protocols and inter-service agreements; represent TDN or service in negotiations, strategic and policy work; work within complex risk assessment framework. If specialist: report on progress of program activities and make recommendations; undertake planning studies or project research; liaise with public and external organisations; community service organisation responsibility. If significant coordination/management functions, contribute to government policy development and strategy and facilitate change ensuring compliance with regulatory obligations |
6 | Degree, diploma or equivalent with extensive experience: undertake significant projects or managerial or specialised functions; exercise managerial control (plan direct, control and evaluate operations); provide advice on complex work and policy matters; contribute to policy development; negotiate on matters of significance to TDN with public / external bodies; control and coordinate work area or larger organisation within budget and policy constraints; exercise autonomy; provide consultancy service for range of activities/clients; prepare comprehensive reports to meet external standards. If specialist: provide support to range of activities/programmes; control and coordinate projects; contribute to development of new procedures and methodologies; provide expert advice; supervise or support other specialists; develop and provide specialised training; mediate and resolve complex issues. |
7 | Accountable to board or committee of management or Level 8 employee. Specialist qualifications or experience and extensive and diverse experience: work of significant scope and complexity; participate in high level forums; manage extensive programmes; ensure compliance with regulatory requirements; promote and monitor achievement of TDN goals; represent TDN at a high level; provide significant input to research and development of programmes, policies or strategic industry wide planning; undertake innovative, novel or critical duties autonomously; perform range of administrative, specialist or operational area functions; provide specialist policy advice; manage extensive programme organisation with responsibility for multiple site service delivery; administer complex policy and programmes; evaluate and develop methodology and techniques. If specialist: contribute to development of operational policy assess and review standards of work of others; develop organisational programmes; implement organisational objectives; develop ongoing plans and programmes; negotiate on behalf of TDN at high level; significant input into programme R&D, policies and strategic industry-wide planning |
8 | High level management skills and executive level accountability and responsibility. Accountable to board or committee of management |
Consideration
[53] The coverage clauses in each of the Health Award, the SCHADS Award and the Clerks Award reveal an important delineation in coverage of employers and employees in the health industry and those undertaking similar work in other sectors and industries. The clear intention is that for specified classifications, the Health Award is to be the only relevant modern award for employers in the health industry. They are not to be covered by another modern award, even if they might otherwise fall within its scope. The express terms of the SCHADS Award and the Clerks Award have that effect. They do not cover employers and employees in the health industry who are covered by the Health Award. 29
Health Award coverage
[54] If TDN is in the health industry, it is covered by the Health Award.
[55] The evidence establishes that TDN has its origins as, and remains, a nursing service that now also provides home care to the Tasmanian community in connection with that service. Nursing is both a health care and medical service. I find that TDN is in the business and/or activity of delivering health care and medical services. It is in the health industry and it is covered by the Health Award.
[56] The more difficult question is whether employees of TDN who will be covered by the Agreement are employed in the classifications in the Health Award.
Support workers
[57] Dealing firstly with support workers, the Agreement provides for two groups of employees in the Support Worker Stream: employees engaged to provide home help tasks only and employees who provide a combination of home help and/or maintenance (basic repairs) and/or personal care/support.
[58] Support Services employees covered by the Health Award range from entry level employees to those who are capable of working independently within established policies, guidelines and procedures. Classifications include indicative roles such as “food and domestic services assistant”, “housekeeper”, “maintenance/handyperson”, “unqualified cook” and “personal care worker”.
[59] While these indicative roles are not defined, they have generally understood meanings. They align with the class of work covered by Support Worker Stream Levels 1 and 2 in the Agreement. That includes, but is not limited to, “vacuuming, dusting, washing and ironing, shopping, sweeping paths, minor maintenance jobs, preparation and cooking of meals, defrosting refrigerators, emptying and cleaning commodes, banking and account payments, organising appointments, assistance with care of pets and care of indoor and outdoor pot plants.”
[60] For Support Worker Stream Level 3 in the Agreement, it includes, but is not limited to “provision of personal care, supervising daily hygiene, laying out clothes and assisting in dressing, making beds, tidy rooms, preparation and cooking of meals and assistance with meals, dry cleaning, perform gardening duties, undertake basic repairs, clean, fitting and removal of aids and appliances, monitoring medications, assistance with communication, accompanying clients on outings, domestic assistance and organising appointments”.
[61] A Support Services employee – level 4 in the Health Award includes a personal care worker grade 3 who may be required to have formal qualifications and/or relevant skills training or experience at Certificate III level. That is comparable to a Support Worker Level 3 in the Agreement, who is required to have completed a Certificate III in Aged Care or Home and Community Care.
[62] I find that the classifications in the Agreements’ Support Worker Stream are within the class of employees covered by the Health Award as Support Services employees – levels 1- 4. Support workers are covered by the Health Award in relation to their particular employment with TDN. The Health Award is the relevant modern award for the purposes of the better off overall test in relation to those employees.
[63] In so finding, I accept that employees in the Agreement’s Support Worker Stream also fit within the classification definitions in the SCHADS Award. That is unsurprising as the SCHADS Award was a convenient source of inspiration when the Agreement’s classification definitions were drafted. 30 However, clause 4.2(d) of the SCHADS Award expressly operates to exclude SCHADS Award coverage of employers and employees who are covered by the Health Award. The result is that the SCHADS Award does not cover TDN employees who will work in the Agreement’s Support Worker Stream.
Administration and clerical employees
[64] The Agreement also covers employees in the Administration and Clerical Stream. The classifications within that stream are defined in a more comprehensive way than employees in the Agreement’s Support Worker Stream. Work covered by the Administration and Clerical Stream from ranges from basic clerical duties to high level managerial functions, encompassing project management and policy development work as well as executive roles. The nature of work covered by the Agreement’s Administration and Clerical Stream is broader than simply clerical work or administrative work of a clerical nature.
[65] The Health Award covers Support Services employees employed to perform a range of duties, from entry level basic clerical work (level 1) to supervisory and technical or professional, project, procedural or processing roles drawing on relevant experience or post-secondary qualifications (level 9). Support Services employees can be employed in indicative roles such as “general clerk”, “receptionist”, “clerk (ward, casualty, medical records etc.)”, “secretary”, “computer clerk”, “pay clerk”, “general clerical supervisor” and “general services supervisor”. There are no specific indicative roles for levels 8 and 9 employees and their classification instead depends on the nature of duties, skill, experience and responsibility required.
[66] Levels 1 and 2 in the Agreement’s Administration and Clerical Stream provide for duties including of a clerical nature and in connection with personal care. They fall within the scope of Support Services employee levels 1 to 7 in the Health Award, where work is performed within established routines and methods, guidelines and procedures, can be prioritised and involves an incremental level of accountability and discretion from limited accountability (level 2), to medium accountability or discretion (level 3) or for an administrative/clerical employee, involves a range of basic clerical functions (level 3). Support Services level 4 employees under the Health Award have a similar level of responsibility and skill to level 3 employees, but may be required to hold a Certificate 3 qualification. At levels 5 to 7 employees have a much greater level of autonomy, prioritise their own work and at level 7, may supervise the work of others. Employees at levels 5 to 7 may require formal qualifications up to trade, Advanced Certificate or Associate Diploma level.
[67] Levels 3 to 5 in the Agreement’s Administration and Clerical Stream require a more complex set of skills, experience and qualifications. Level 3 is equivalent to a graduate level professional or technical position where an employee has knowledge but limited experience. Level 4 and 5 employees have more experience in professional or technical roles and may also have managerial functions. Level 4 responsibility extends to single programs or small services/organisations while Level 5 involves more significant coordination or management functions.
[68] Agreement Levels 3 to 5 in the Administration and Clerical Stream align with the class of work performed by Support Services employee level 8 and 9 in the Health Award. This includes employees with specialist knowledge and experience who can independently provide advice on a range of activities and features and contribute to the determination of organisational goals within their field. At level 8, employees may be required to assist in the development of policy and at level 9, employees may be required to coordinate a range of organisational functions, development of procedures, management strategies and guidelines, and liaising with clients and interested groups.
[69] I find that the work to be performed by employees in levels 1 to 5 of the Administration and Clerical Stream in the Agreement is covered by the Health Award.
[70] Levels 6 to 8 in the Agreement’s Administration and Clerical Stream cover even more specialised and complex managerial or specialist functions, potentially up to and including the level of General Manager or Chief Executive Officer. They do not sit comfortably within the Support Services classifications in the Health Award. However, they may fall within a health professional classification in the Health Award if, in addition to managerial or specialist functions, they have relevant qualifications or professional status. If so, they will be covered by the Health Award.
[71] Employees at levels 6 to 8 of the Agreement’s Administration and Clerical Stream who do not hold relevant qualifications or status as a health professional are not within a class of work covered by the Health Award.
SCHADS Award coverage
[72] Administration and Clerical Stream employees at levels 6 to 8 who are not covered by the Health Award may instead be covered by the SCHADS Award, which covers employers throughout Australia in sectors including the SACS sector and the home care sector.
[73] The evidence establishes that TDN provides personal care, domestic assistance or home maintenance to aged persons and persons with disability including in private residences. I accept that such activities are not the sole activities of TDN, but they are nevertheless part of the service TDN provides. TDN is an employer in the home care sector.
[74] The evidence also establishes that TDN provides disability services including the provision of personal care and domestic and lifestyle support to persons with a disability in a residential setting. As with home care, disability services is only part of the service TDN provides, but it is sufficient to make TDN an employer in the SACS sector.
[75] Administration and Clerical Stream level 6 to 8 classifications in the Agreement correlate closely with SACS employee classification levels 6 to 8 in the SCHADS Award. As noted above, the Agreement’s classifications were modelled on those in the SCHADS Award for convenience when the first predecessor to the Agreement was drafted. 31
[76] I find that employees who will be covered by the Agreement’s Administration and Clerical Stream in classification levels 6 to 8 and who are not also ‘health professionals’ within coverage of the Health Award are in a class of employees that the SCHADS Award is expressed to cover. Those employees are covered by the SCHADS Award in relation to their particular employment with TDN. The SCHADS Award is the relevant modern award for the purposes of the better off overall test in relation to that class of employees.
[77] The result is that for level 6 and 8 employees in the Agreement’s Administration and Clerical Stream, the better off overall test will need to be assessed against both the Health Award and the SCHADS Award, because two separate classes of employees fall within that group.
Conclusion
[78] TDN is an employer in the health industry and it is covered by the Health Award. TDN is also an employer in the home care sector and the SACS sector. To the extent that it is not covered by the Health Award, it is covered by the SCHADS Award.
[79] Employees of TDN employed in the Agreement’s Support Worker Stream are covered by the Health Award.
[80] Employees of TDN employed in levels 1 to 5 of the Agreement’s Administration and Clerical Stream in the Agreement are also covered by the Health Award.
[81] Employees in levels 6 to 8 of the Agreement’s Administration and Clerical Stream are either covered by the Health Award (if they are health professionals) or the SCHADS Award (if they are not health professionals).
[82] The Health Award is the relevant modern award for the purpose of the better off overall test in relation to the Support Worker Stream and the Administration and Clerical Stream.
[83] The SCHADS Award is the relevant modern award for the purpose of the better off overall test in relation to the Agreement’s Administration and Clerical Stream levels 6 to 8 employees who are not health professionals.
[84] The dispute over modern award coverage for the purpose of the better off overall test in relation to the Agreement is determined accordingly.
COMMISSIONER
Hearing details:
2018.
Hobart:
July 12.
Final written submissions:
D Dilger for Hobart District Nursing Service Inc
J Eddington for the Health Services Union of Australia
Printed by authority of the Commonwealth Government Printer
<PR609996>
1 MA000027
2 MA000100
3 Form F18, 22 December 2017
4 MA000002
5 Form F17
6 [2012] FWAFB 1000
7 [2012] FWAFB 1000; Audio recording of hearing on 12 July 2018 (Evidence of Tammy Munro)
8 [2012] FWAFB 1000 at [78]
9 Fair Work Act 2009 (Cth), s.193(6)
10 Exhibit 1,Statement of Kim Macgowan, Attachments A-Q
11 Exhibit 1, Statement of Kim Macgowan, Attachment R
12 Exhibit 2, Statement of Emily Balmer
13 Audio recording of hearing on 12 July 2018 (Evidence of Kim Macgowan)
14 Audio recording of hearing on 12 July 2018 (Evidence of Kim Macgowan)
15 Audio recording of hearing on 12 July 2018 (Evidence of Kim Macgowan)
16 Exhibit 1, Statement of Kim Macgowan
17 Fair Work Act 2009 (Cth), s.48
18 Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148
19 [2014] FCAFC 148; Carpenter v Corona Manufacturing 122 IR 387 (AIRC, 17 December 2002) at [9]; Graham v Globus Medical Australia Pty Ltd[2016] FWCFB 5495; The Australasian Meat Industry Employees Union v Teys Australia Beenleigh Pty Ltd[2014] FWCFB 5643; Mitolo Group Pty Ltd v National Union of Workers[2015] FWCFB 2524
20 [2014] FCAFC 148; 122 IR 387; [2015] FWCFB 2524; Health Professionals and Support Services Award 2010 [MA000027], clause 4.8 Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100], clause 4.8 , , clause 4.7
21 Health Professionals and Support Services Award 2010 [MA000027], clause 3
22 Kucks v CSR Ltd (1996) 66 IR 182
23 Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100], clause 4
24 Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100], clause 4.2(d)
25 Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100], clause 3
26 Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100], clause 3
27 This aspect of the role is in dispute. TDN considers that such activity, undertaken by unqualified persons, may constitute a criminal offence (Audio recording of Hearing on 12 July 2018, Evidence of Kim Macgowan)
28 Clerks – Private Sector Award 2010 [MA000002], clause 4.6
29 Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100], clause 4.2(d); Clerks – Private Sector Award 2010, clause 4.6
30 Audio recording of Hearing on 12 July 2018, (Evidence of Kim Macgowan)
31 Audio recording of Hearing on 12 July 2018, (Evidence of Kim Macgowan)
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