MacKillop Family Services Pty Ltd T/A MacKillop Family Services

[2018] FWC 617

[2018] FWC 617

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MacKillop Family Services Pty Ltd T/A MacKillop Family Services
(AG2017/3588)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 30 JANUARY 2018

Application for approval of the MacKillop Family Services Enterprise Agreement 2016.

[1] MacKillop Family Services Limited applied for approval of the MacKillop Family Services Agreement 2016. The Health Services Union (HSU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) both lodged applications under s.183 of the Fair Work Act 2009 that they wished to be covered by the Agreement.

[2] Both MacKillop and the HSU opposed the ASU being covered by the Agreement because they submitted that the ASU was not a bargaining representative for the Agreement.

[3] Section 183 of the Act provides as follows:

183 Entitlement of an employee organisation to have an enterprise agreement cover it

(1) After an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement concerned may give the FWC a written notice stating that the organisation wants the enterprise agreement to cover it.

(2) The notice must be given to the FWC, and a copy given to each employer covered by the enterprise agreement, before the FWC approves the agreement.

[4] Section 176(1)(b) relevantly provides at a registered organisation is a bargaining representative for agreements that are not greenfields agreements as follows:

(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation; and

(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation—the organisation applied for the authorisation;

unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2);

[5] Section 176(3) provides the circumstances in which an employee organisation is not a bargaining representative as follows:

(3) Despite subsections (1) and (2):

(a) an employee organisation; or

(b) an official of an employee organisation (whether acting in that capacity or otherwise);

cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.

The issues to be determined

1. Are any of the employees who will be covered by the Agreement members of the ASU?

[6] To facilitate the determination of this issue the ASU, on a confidential basis, provided my chambers with a list of its members who are employed by MacKillop and who will be covered by the Agreement. MacKillop provided, on a confidential basis, a list of the names of its employees who would be covered by the Agreement. I advised the parties at the hearing that those documents disclosed that the ASU had members who would be covered by the Agreement.

2. Have any of the members appointed another bargaining representative or revoked the status of the ASU as his or her bargaining representative?

[7] There was no evidence before the Commission that any of these employees had appointed another person to represent them or had revoked the status of the ASU as his or her bargaining representative. Further, Ms Nicole Dwyer gave evidence that she would be covered by the Agreement and she was a member of the ASU and she had not appointed any other person as her bargaining representative. 1

[8] I am therefore satisfied that the ASU has satisfied the first test.

3. Is the ASU entitled to represent the industrial interests of the employee in relation to the work that will be performed under the agreement?

[9] It is not disputed that the work that will be performed under the Agreement is set out in clause 4.1(b) of the Agreement which provides that the Agreement covers:

MacKillop’s employees employed in Victoria who are classified in the following roles covered by the Award (Employees)

(i) Residential Care Worker;

(ii) Residential Care House Supervisor

(iii) Administrative Assistant, Administration Officer, and other administrative positions classified up to the equivalent of Level 3.4 in the award.

Excluding employees employed in the Cara at MacKillop Business Unit.

The Award is defined as the Social, Community, Home Care and Disability Services Industry Award 2010.

[10] Clause 10 of the Agreement provides for the classifications and rates of pay and relevantly provides:

10.1 Subject to the terms of this Agreement, classifications will be in accordance with the Award Schedule B – Classification Definitions Social and Community Services Employees – as it is varied from time to time.

10.2 Residential Care workers and House Supervisors will be classified in line with the Award recognising qualifications, from the date of obtainment, that are relevant to the role

10.3 Subject to the terms of this Agreement rates of pay will be in accordance with the Award clause 15- Minimum weekly wages for social and community services employees and crisis accommodations employees – as it is varied from time to time.

10.4 Subject to the terms of this Agreement, classifications and rates of pay for trainees will be in accordance with the Award Schedule G – National Training Wage – as it is varied from time to time.

The evidence

[11] The ASU relied upon the witness statement of Ms Lisa Darmanin 2 the President of the Victorian Branch of the ASU in relation the history of the ASU’s rules and an affidavit3 of Mr Benjamin Bromberg a solicitor which attached certain Commission documents. Neither of these witnesses were required for cross examination. Further the ASU relied upon the witness statement of Ms Dwyer4 who gave evidence about the work she performed as a residential care supervisor and the work of residential care workers. Ms Dwyer was cross-examined. The ASU also relied upon the annual reports, financial reports and the 2018-20 strategic plan published by MacKillop as well as a company extract which notes that MacKillop was a registered charity.5

[12] At the hearing MacKillop relied upon the evidence of Mr Michael O’Kelly 6 the Manager of East Division of MacKillop who gave evidence about work of Residential Care workers in response to Ms Dwyer’s evidence. He was not required for cross examination. However after the hearing was concluded and before this decision was issued, MacKillop advised that it no longer relied upon the evidence of Mr O’Kelly. I provided the parties with an opportunity to make submissions in response to that advice.

[13] The HSU did not call any oral evidence at the hearing. Mr Scott Crawford did give evidence from the bar table and that evidence was objected to by the ASU. Accordingly, to the extent that Mr Crawford gave evidence from the bar table I have not had regard to it.

The ASU’s rules

[14] The ASU rules provides at rule 5 for eligibility for persons to join the ASU.

Rule 5.a. Part VI of the rules provides:

The description of the industry in connection with which the Union is registered is the industry of social and/or welfare work.

[15] Rule 5.b. provides for eligibility for membership and relevantly provides at Part V1 c. as follows:

Any person employed or usually employed for hire or reward on a full time or part time basis in or in connection with the industry of social and/or welfare work.

[16] The Rules then provided for a series of exemptions not all of which are relevant. Relevantly at Rule 5.c.ii the Rules provided as follows:

ii. In the State of Victoria

1. Including all person employed in any of the occupations of social worker, recreation worker, welfare worker, youth worker, community development worker and/or social planner;

2. but excepting persons employed in the Public Service of Victoria or employed in any State instrumentality or other undertaking carried on by public authorities, commissions or corporations under any State charter, statute, enactment or proclamation of the State of Victoria; provided that the management of the employer of any such person is appointed by, or is under the control of, the Victorian Government. The exception provided for in this paragraph shall, to the extent it might otherwise apply, not apply to persons employed by public hospitals and community health centres;

[17] Further at Rule 5.c.xii. the Rules provide as follows:

xii. Except persons employed in the industry or industrial pursuit of child minding centres, day nurseries or pre-school kindergartens; provided this exception shall not apply, to the extent that it might otherwise apply, to persons employed:

1. in a multipurpose neighbourhood centre, and who are employed as co-ordinators or who are not primarily engaged in the provision of a child care service, or

2. in residential child care services (including family group homes and institutional care) providing alternate care and support in a live-in situation as distinct from:

A. sessional care to pre-school children, long day care, extended hours care or 24 hours care,

B. before and after school care,

C. play groups,

D. occasional care,

E. vacation care,

F. multi-purpose child care; or

3. as community development workers; or

4. in family counselling and support services; or

5. in women’s and/or youth refuges; or

6. in family day care services, apart from those in Western Australia and the Northern Territory, and apart from persons employed as direct child carers in their own homes;

[18] The ASU set out the approach to be taken to the construction of union rules and this was not in contest. 7

[19] It submitted that the union rules “should be given a wide meaning and interpreted according to their ordinary or popular denotation rather than by reference to some narrow or formal construction.” 8

[20] It was further submitted that the words “in or in connection with” are “words of expansion” in that they “allow a finding of eligibility even if the employees in question are not ‘in’ the relevant industry.” 9

[21] The ASU submitted that the rule in particular paragraph (a) of Part VI of r5(b) provides for eligibility to join the ASU on an industry as opposed to an occupational basis. “Eligibility is extended to any person “in or in connection with the industry of social and/or welfare work.” 10 The rules then make clear that in Victoria membership is specifically extended to persons engaged in certain occupations.11 It submitted that eligibility is not limited to those employed in the occupations listed.12 Further that the rules exclude from the exclusion persons employed in “in residential child care services (including family group homes and institutional care) providing alternate care and support in a live-in situation” and “women’s and/or youth refuges” is a “strong indication that it was intended that such employment was in or in connection with the industry of social and/or welfare work.”13

[22] The history of these rules can be traced to the rules of the Australian Social Welfare Union which was one of the unions which amalgamated to form the ASU. 14 The eligibility rules of the ASU were considered by Deputy President MacBean in Re Australian Municipal, Transport, Energy, Water, Ports, Community and Information Services Union.15 Deputy President MacBean held that the rule under consideration in this matter was an industry rule not an occupation rule. He concluded that “to the extent that a Respondent sought to be bound by the proposed award is engaged in the industry of social and/or welfare work, any employee of the Respondent employer is eligible for membership of the ASU, including in this case job skills trainees.”16

[23] The ASU submitted that it had been party to various pre modern awards relevant to the work that would be covered by the Agreement including a number of pre modern awards which applied to residential care workers. For example it was party to and bound by a number of the Crisis Assistance, Supported Housing Awards. 17 These awards generally covered “a service the predominant function of which is the provision of supported accommodation and/or related support services” but did not cover “persons employed in the provision of supported accommodation and/or related support services which are specifically for aged, infirm, physically, psychiatrically or developmentally disabled persons or persons suffering from drug or alcohol addiction, or children under the age of twelve years.”

[24] The ASU submitted that as social and/or welfare work is not defined in the ASU rules one can look to the ordinary meaning of the words and relied on the Macquarie dictionary definitions.

[25] Social work is defined as:

1. Organised work directed towards the benefit of social conditions in the community, as by seeking to improve the conditions of the poor, to promote the welfare of children, etc.

2. The study of the methods by which this can be effected.

[26] Welfare work is defined as:

Work devoted to the welfare of persons in the community, especially the aged, sick, poor etc. 18

[27] The ASU extracted references from the strategic plan and financial reports which describe MacKillop and its principal activities and purposes. 19

[28] The ASU submitted that Ms Dwyer’s evidence was that the work of a residential care worker extends well beyond assisting residents with their basic daily needs. 20

[29] It submitted that MacKillop in providing residential care facilities is in or in connection with the industry of social work/welfare work. It submitted that by operating residences for disadvantaged young people MacKillop is devoting itself to protecting, promoting and seeking to improve the conditions of young people and their families. It submits that the ASU was entitled to represent the industrial interests of its members performing the work covered by the Agreement. 21

Submissions of MacKillop

[30] MacKillop did not contest the finding of Deputy President MacBean that the eligibility for membership of the ASU turned on whether the employer was engaged in the industry of social/and or welfare work, not the occupation of job skills trainee or what work the individual was performing. 22 However it submitted that different considerations arise in this matter. Here the Commission is required to determine whether the ASU is able to represent the industrial interests of the employees in relation to the work that will be performed under the agreement.23 As a consequence it submits that regard has to be had to the occupations in the ASU’s eligibility rules.24 MacKillop submitted that this approach is consistent with the decision of Commissioner Roe in Railtrain Pty Ltd/Civil Maintenance & Operations Pilbara Enterprise Agreement 2016.25 It submitted that Railtrain is authority for the proposition that “an occupational eligibility rule will not satisfy section 176(3) of the FW Act if the employee (despite any general eligibility to join the union because of the type of work they usually do) is not employed to perform work in the occupation(s) listed in the occupational rule.”26

[31] It submitted that because residential care workers and residential care house supervisors are not social workers, recreation workers, welfare workers, youth workers, community development workers and/or social planners, the ASU is not entitled to represent their industrial interests. 27

[32] MacKillop submitted that the Health Services Union’s eligibility rules provide for occupational coverage of persons employed in Victoria in the provision of child care services in day-care centres and residential centres. It also pointed to the history of award coverage of this work in Victoria. In particular it referred to the Residential and Support Services (Victoria) Award 1999 and the predecessor award the Health (Residential Care – Victoria) Award 1995. It submitted that the ASU was not party to either of these awards. It submitted that because the ASU did not have coverage under the predecessor award it should not have coverage now. 28

[33] It further submitted that the history of agreement coverage of this work also did not involve the ASU. It acknowledged that the ASU had coverage in relation to employees of MacKillop employed as social workers and welfare workers both through the Social and Community Services Victoria Award 2000 and the Community Employment Training and Support Services Award 2000 and an enterprise agreement between MacKillop and the ASU. 29

[34] In support of this submission it relied on the decision of the Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v CSBP Ltd 30 in which it was acknowledged that a union’s “membership clause should not be read narrowly or read down by reference to the membership clauses of other industrial organisations.”31 That decision noted that “one should not accede to attempts to promote exorbitant claims which, if allowed, would render otiose efforts of those who laboured long and hard to produce explicit statements intended to mark out the scope of the union’s coverage of occupations in the workplace.”32

[35] MacKillop acknowledged that the making of the modern awards, in particular the replacement of the various awards referred to above with the Social, Community, Home Care and Disability Services Industry Award 2010 weakened the connection between industrial coverage and union eligibility, but it is still a relevant consideration. 33

[36] Commissioner Roe endorsed this approach and found that the history of award coverage is relevant to the proper interpretation of union rules. 34

[37] As a result of the decision to not rely on Mr O’Kelly’s witness statement, MacKillop provided no evidence to contradict the evidence of Ms Dwyer about the work of residential care workers and supervisors.

[38] MacKillop did not, in its written submissions, submit that it was not in the social/and or welfare work industry. Nor did it, in its written submissions, submit that its residential care facilities were not in the social/and or welfare work industry.

[39] However in response to my question it said it was a “distinct industry.” It submitted that it was in the “residential care industry. 35 MacKillop submitted that there was a difference between the social and welfare industry and the home care industry. To support this submission it relied upon the difference historically in award coverage.36 It further relied upon the fact that there was different union coverage covering different classes of employees.37

The HSU’s submissions

[40] The HSU largely adopted the submissions of MacKillop. 38

[41] The HSU submitted that an examination of the award coverage of residential care work in Victoria established that it was the HSU that had coverage of this work not the ASU. Further it relied on the history of Agreement coverage at MacKillop.

[42] The ASU and MacKillop have made an agreement namely the MacKillop Family Services Enterprise Agreement 2003-2005. 39 That Agreement applied to employees covered by the Social and Community Services Victoria Award 2000 and the Community Employment, Training and Support Services Award 2000 excluding employees at program manager or above, employees working in or employed in conjunction with an opportunity shop and causal employees. The Social and Community Services Victoria Award 2000 applied to persons eligible to join the Australian Services Union employed in the occupation of social worker for whom a necessary condition of employment is a degree or diploma with a major study in social work and the occupations of recreation worker, welfare worker, youth worker, community development worker and social planner.

[43] The Community Employment, Training and Support Services Award 2000 applied to persons eligible to join the ASU (whether members or not) engaged by any employer in a service, the dominant function of which is the provision of labour market assistance programs.

[44] In contrast the MacKillop Family Services Enterprise Agreement 2005-2006 40 made by the HSU with MacKillop covered employees covered by the Residential and Support Services Award Victoria 1999 and the Health and Allied Services – Private Sector –Victoria Consolidated Award 1998 with the exclusion of employees employed at the level of Program Manager or above and employees working in or in connection with an Opportunity Shop and casual employees. The replacement agreement excluded employees at Manager level or above and employees working in or in connection with an Opportunity Shop and casual employees.

[45] The HSU submitted that this was evidence that the ASU was not seeking to place residential care workers under the youth work type classification. 41

[46] The HSU when considering award coverage of residential care workers did not rely on any coverage outside of Victoria. The Health (Residential Care – Victoria) Award 1995 42 which bound the HSU and named employers covered “the occupation of any care or family workers (including executives and superintendents), employed in connection with premises providing residential care for nine or less children and/or disabled persons, not including the children of the workers, and foster parents.” The Residential and Support Services (Victoria) Award 199943 which bound the HSU and named employers replaced the earlier award applied to “persons employed in direct client support roles in residential and/or non-residential support services for people with disabilities and/or young people and/or children.” It excluded from coverage person employed under the;

•  Social and Community Services (Interim) Award 1995

•  Crisis Assistance, Supported Housing Award 1991

•  Community Employment Training and Support Services Award 1999

•  Disability Services (Victoria) Award 1993

•  Attendant Care (Victoria) Award 1995

•  HSUA (Victoria - Private Sector) Interim Award 1993 Health Professionals Part

•  those persons employed in connection with the delivery of aged care programs identified as such under legislative provisions.

[47] The HSU also relied upon the common rule declaration 44 in relation to the award which defined the industry as the “callings or employment of persons in direct client support roles in residential and/or non-residential support services for people with disabilities and/or young people and/or children.” It excluded persons employed under the;

•  Social and Community Services – Victoria – Award – 2000 [AW796561];

•  Crisis Assistance, Supported Housing Award 2002 [AW813963];

•  Disability Services (Victoria) Award 1999 [AW778738];

•  Attendant Care (Victoria) Award 2004 [AW832383];

•  Health Services Union of Australia (Health Professional Services - Private Sector Victoria) Award 2004 [AW835426];

•  Health and Allied Services – Private Sector – Victoria Consolidated Award 1998 [AW783872] and

•  Those persons employed in connection with the delivery of aged care programs identified as such under legislative provisions.

[48] It was submitted that this recognised that there was a particular industry that was identified in relation to residential settings. 45

[49] The HSU submitted that residential care workers were not performing welfare work. 46 Even if one accepted that MacKillop in providing these residential services was in the social and/or welfare industry it was submitted that the ASU cannot represent the industrial interests of the employees in relation to the work and the history of award and agreement coverage supports this conclusion.47 The HSU submitted that the ASU intervened in the proceedings that lead to the making of the 1999 Award and noted that after an agreement was reached with the ASU the HSU amended its application.48 That agreement was not tendered and no application for an adjournment was made to allow it to be retrieved from the Commission files. The HSU submitted that after the agreement was made the ASU’s intervention ceased.49 It submitted that the ASU had not been involved in bargaining for residential workers.50 It submitted that the history is relevant because the work of the employees is unchanged.51

[50] The HSU supported the submissions of MacKillop that the industry of MacKillop was the provision of residential care.  52

Consideration.

[51] The High Court in Regional Express Holdings Limited v Australian Federation of Air Pilots 53 said s176(3) said as follows:

“Standing alone, there might be some doubt about the meaning of that provision. Read, however, against the background of s 178(5A) of the Workplace Relations Act, and its legislative antecedents outlined above, there really is no room for any doubt that the entitlement to represent the industrial interests of an employee referred to in s 176(3) of the Fair Work Act is the same Dunlop Rubber principle sense of an organisation's entitlement to represent the industrial interests of persons eligible for membership of the organisation.” 54

[52] In Dyno Nobel 55the Majority extensively reviewed the approach taken by the High Court to the proper construction and application of eligibility rules based on the industry of the employer. The Majority summarised the principles to be derived from those authorities as follows56:

“•  An eligibility rule, or part of an eligibility rule, that simply refers to persons employed or engaged “in or in connection with” a specified industry or industries is properly characterised a conventional industry rule  57 and the discremen of eligibility under such a rule is the industry of the employer, that is, whether the trade or business of the employer is in or in connection with the specified industry or industries58.

•  Whether or not the trade or business of an employer is in or in connection with a particular industry is a question of fact 59.

•  The answer to that question of fact is determined by the “substantial character” of the trade or business of the employer and all of its employees and requires a consideration of the business of the employer as a whole 60.

•  The business of an employer can be “in or in connection with” more than one industry 61. This outcome can arise in different ways:

(i) The business of the single employer is a single integrated enterprise but nevertheless operates substantially in or in connection with two or more industries simultaneously. This may be because:

•  There is an overlap between industries and the business operates in the area of overlap (in such a case the same business can be described in different ways placing the business in either industry so that it has a “substantial character” that places it in each industry); and/or

•  The nature of the single integrated business is such that the business itself overlaps two or more distinct industries in such a way that it has a “substantial character” within each of those industries.

(ii) The overall business of the single employer is properly seen as being constituted by two or more distinct businesses or enterprises each of which has a different “substantial character”.

•  The mere supply of goods or services to a business in a particular industry is not, of itself, sufficient to render the business of the supplier one that is “in connection with” the industry of the business supplied, even if those goods are essential to the operation of that business 62.

•  Where a conventional industry rule applies in relation to a distinct business or enterprise of an employer, all of the employees in that business or enterprise are eligible for membership of the union” 63.

[53] The starting point is the ASU’s rules. I am satisfied that the relevant ASU rule is an industry rule and that the ASU is entitled to enrol as members “any person employed or usually employed for hire or reward on a full time or part time basis in or in connection with the industry of social and/or welfare work.” I am further satisfied that the reference to particular occupations in rule does not limit the generality of the rule. 64 I do not accept the submission that regard must be had to the list of occupations in the ASU’s rules as submitted by MacKillop.

[54] I do not accept the submissions of MacKillop in relation to the decision of Deputy President MacBean referred to above. In determining whether the ASU was able to create an industrial dispute in respect of these categories of employees, Deputy President MacBean was not dealing with a question of whether the relevant employees were members of the ASU but whether they were eligible to be members of the ASU.

[55] As Justice Northrope observed in Burgess v John Connell-Mott, Hay and Anderson Pty Ltd 65:

“It is trite law that an organization, as party principal, has no power to create an industrial dispute within the meaning of the Act on behalf of persons not eligible for membership of that organization and has no power to stand in their place or to represent them in an industrial dispute. The fact that an organization has purported to enrol as members persons who are not eligible to become members, does not confer on that organization the power to represent those persons.” 66

[56] That case dealt with an application by Mr Burgess who alleged he had been dismissed because of his membership of the AWU. Having examined the occupation rule of the AWU and determining that Mr Burgess was not engaged in general labour, consideration was given to the industry rule and the Court had to decide if the defendant, which carried on the business of a consulting engineer, was in or in connection with the industry of railway construction work or the industry of land surveying. The Court held that it was not and therefore Mr Burgess was not a member of the AWU as he was not entitled to become a member. 67

[57] I am satisfied that if a residential care worker whose work will be covered by the Agreement is eligible to be a member and is a member of the ASU then the ASU can represent his or her industrial interests. I accept that there may be members of a union for whom a union cannot be their industrial representative because either they remain a member because they are seeking work which the union covers but are not currently employed in that work or industry or they were eligible to members when they first became members but are no longer eligible to be a member or in some cases were never eligible to be a member. I accept that an employer may exist in more than one industry and that too can affect whether a union is entitled to represent the industrial interests of its members. But it is also true that one industry can be a subset of another industry. For example vehicle manufacturing may be an industry, but it is also a subset of the manufacturing industry.

[58] I am satisfied that the reasoning of Deputy President MacBean about the ASU’s rules was correct and is relevant to my consideration about whether the ASU is able to represent the industrial interests of its members in relation to the work covered by the Agreement.

[59] I am not satisfied that I should read down the ASU’s rules based on historical award coverage particularly as MacKillop and the HSU only considered award coverage in Victoria. Neither MacKillop nor the HSU responded to the ASU’s submissions about their award coverage in other states.

[60] It was not disputed that the ASU was not bound by the Residential Care Awards or agreements referred to by MacKillop and the HSU. However the ASU pointed to a range of Awards to which it was a party. For example the ASU was party to the Crisis Assistance, Supported Housing Award 1992 68 which applied to employees of particular respondents “engaged in a service the predominant function of which is the provision of supported accommodation and/or related support services”. This award did not apply to supported accommodation and or related support services which are specifically for aged, infirm, physically, psychiatrically or developmentally disabled persons or persons suffering from drug or alcohol addiction, or children under the age of twelve years. Supported accommodation is defined by the Department of Human Services as a type of housing that provides higher level care and support for people with particular needs. Similar awards applied in other states thought the coverage was not identical. These were federal awards and to create a dispute in relation to the employers the employees were required to be eligible to be members of the ASU. If supported accommodation was in the social/and or welfare industry it is would not be possible to conclude that residential care as operated by MacKillop was not in the social/and or welfare industry.

[61] I do not consider that the decision in Railtrain 69 assists MacKillop. Commissioner Roe determined that the relevant eligibility rule was an industry rule. However in that case Railtrain submitted that the work to be covered by the Agreement was not in the rail industry but in the mining industry.70 Commissioner Roe accepted that Railtrain generally operated in the rail industry but the Agreement was “in the Mining Industry and or the Manufacturing/Maintenance Industry” and therefore the RTBU was not entitled to represent its members’ industrial interest in relation to this work.71

[62] Given the description of Staughton Unit by Ms O’Dwyer which was not challenged by MacKillop it would be difficult to conclude that in the provision of these services MacKillop is not in the social/and or welfare work industry.

[63] The HSU and MacKillop submitted that work performed was in the residential care industry and relied upon the definition of industry in the common rule declaration made in 2004 in relation to the Residential and Support Services (Victoria) Award 1999. It defined the industry as “the callings or employment of persons in direct client support services roles in residential and/or non-residential support services for people with disabilities and/or young people and/or children.” 72 It then provided for certain exclusions which consistent with the principles adopted by the Full Bench to minimise overlapping award coverage.73

[64] The scope of the common rule award was directed to callings and roles of employees and not the industry of the employer. Even if I were satisfied that there was an industry of residential care I am satisfied that such an industry is a subset of the social and/or welfare work industry.

[65] I am therefore satisfied that work performed by the employees to be covered by the agreement is in or in connection with the social and/or welfare work industry and therefore the ASU is entitled to represent the industrial interests of their members employed by MacKillop.

DEPUTY PRESIDENT

 1   Exhibit ASU 4 at [1]-[2] and [5]

 2   Exhibit ASU 2

 3   Exhibit ASU 1

 4   Exhibit ASU 4

 5   Exhibit ASU 3

 6   Exhibit R1

 7   Submissions of the ASU at [12]-[16]

 8   Ibid at [13]

 9   Ibid at [16]

 10   Ibid at [24](a)

 11   Ibid at [24](b)

 12   Ibid at [24](c)

 13   Ibid at [24](d)

 14   Ibid at [26]

 15 [1993] AIRC 285

 16   Submissions of the ASU at [34]

 17   ibid at [36]

 18   Ibid at [38]-[39]

 19   Ibid at [41]-[48]

 20   Ibid at [49]

 21   Ibid at [55]

 22   Submissions of MacKillop at [13]

 23   Ibid at [14]

 24   Ibid

 25   [2016] FWCA 1385

 26   Submissions of MacKillop at [16]

 27   ibid at [17]

 28   Ibid at [20]

 29   ibid at [22]

 30 [2012] FCAFC 48

 31   Ibid at [48]

 32   Ibid at [49]

 33   Submissions of MacKillop at [23]

 34   [2016] FWCA 1385 at [31]

 35   Transcript PN 349-353

 36   Ibid PN 365

 37   Ibid PN 368

 38   Ibid PN 377

 39   PR939400

 40   PR963777

 41   Transcript PN 396

 42   Print M6133

 43   AP795711CRV

 44   PR9532231

 45   Transcript PN 429

 46   Ibid at PN432

 47   Ibidat PN 439

 48   Print P7638 point 9 of Commissioner O’Shea’s report to the Full Bench

 49   Transcript PN 444

 50   Ibid PN 449

 51   Ibid PN 450

 52   ibid PN 473

 53 [2017] HCA 55

 54   Ibid at [45]

 55   Dyno Nobel v CFMEU PR956868

 56   Ibid at [51]

 57   Re Federated Liquor and Allied Industries Employees’ Union of Australia; Ex parte Australian Workers’ Union (1976) 51 ALJR 266 at 268

 58   R v Hibble; Ex parte Broken Hill Pty Co Ltd (1921) CLR 290 at 297; Re Federated Liquor and Allied Industries Employees’ Union of Australia; Ex parte Australian Workers’ Union (1976) 51 ALJR 266 at 268

 59   ibid

 60   R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123 at 135; Re Federated Liquor and Allied Industries Employees’ Union of Australia; ex parte Australian Workers’ Union (1976) 51 ALJR 266 at 268

 61   R v Drake Brockman; Ex parte National Oil Pty Ltd (1943) 68 CLR 51 at 57

 62   R v Isaac; Ex parte Transport Workers Union (1985) 159 CLR 323 at 333

 63   R v Hibble; Ex parte Broken Hill Pty Co Ltd (1921) 29 CLR 290

 64   See Australian Theatrical and Amusement Employees Association v Professional Radio and Electronics Institute of Australasia and another Print H5675 at page 5 where the Full Bench endorsed the reasoning of an earlier Full Bench in ATAEA v Jands Concerts Productions Pty Ltd which held in relation to the ATAEA’s eligibility rule (albeit an eligibility rule based on the calling or industrial pursuit of the employee ) where the rule provided that eligibility was “employees engaged in or in connection with ….or in or about, any kind of amusement whether indoor or outdoor including (it then had 6 categories)” that the eligibility was not confined to the areas described in (a)-(e).

 65 [1979] FCA 12; (1979) 37 FLR 386

 66   Ibid at [6]

 67   Ibid at [25]

 68   AP813963

 69   [2016] FWCA 1385 at [25]

 70   Ibid at [29]

 71   Ibid at [33]

 72   AP795711CRV

 73   ASU and ors PR950653 at [41]

Printed by authority of the Commonwealth Government Printer

<PR599937>