Ozcare
[2019] FWC 2831
•26 APRIL 2019
| [2019] FWC 2831 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Ozcare
(AG2018/3346)
DEPUTY PRESIDENT MANSINI | MELBOURNE, 26 APRIL 2019 |
Application for approval of the Ozcare Enterprise Agreement 2018.
[1] Ozcare has made an application for approval of a single enterprise agreement known as the Ozcare Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act).
[2] This decision resolves a dispute about modern award coverage for Care Assistants who would be covered by the Agreement, a threshold issue to be determined before assessing whether the Agreement must be approved in accordance with the Act.
[3] I have determined that the relevant reference instruments for Care Assistants who would be covered by the Agreement are the Aged Care Award 2010, the Social, Community, Home Care & Disability Services Industry Award 2010 and the Nurses Award 2010. The reasons for this decision follow.
Concerns about the application
[4] In the course of proceedings to date various concerns about the application have been raised with and by the Commission, summarised as follows:
a) Whether the Agreement passes the “better off overall test”;
b) Whether the Agreement is consistent with the National Employment Standards in the Act;
c) Apparent deficiencies in materials lodged with the application; and
d) Whether all of the pre-approval requirements at ss.180(2), 180(3) and 180(5) of the Act were met.
[5] A series of submissions, witness evidence, proposed undertakings and views of the bargaining representatives were exchanged in relation to the concerns.
[6] Whilst all bargaining representatives ultimately support approval of the Agreement, some objections to the basis on which the Commission should be satisfied are maintained. The objections relate to relevant modern award coverage for “Care Assistant” classifications in the Agreement and the form of certain proposed undertakings.
[7] Accordingly, a hearing was required and took place on 12 March 2019.
Which modern awards are relevant for assessing whether employees are better off overall?
The issue
[8] In its application, Ozcare stated 1 and it is not disputed that the following modern awards cover the employer and the employees who would be covered by the Agreement:
• Aged Care Award 2010 (Aged Care Award);
• Clerks – Private Sector Award 2010 (Clerks Award);
• Health Professionals & Support Services Award 2010 (Support Services Award);
• Social, Community, Home Care & Disability Services Industry Award 2010 (Social Award); and
• Nurses Award 2010 (Nurses Award).
[9] The statutory declaration which accompanied the application identified how the classifications in the Agreement relate to the modern award classifications. It identified the Care Assistant classifications in the Agreement as appropriately matched to the Nursing Assistant classification in the Nurses Award.
[10] In the course of responding to the various concerns raised during the approval process, Ozcare identified an error in its statutory declaration and there is now a question about the relevant modern awards for the purposes of assessing whether the Care Assistant classifications are “better off overall” under the Agreement than if the modern awards applied:
a) Ozcare submits that the Aged Care Award and Social Award are the relevant reference instruments; whereas
b) The Queensland Nurses’ and Midwives’ Union of Employees and ANMF (hereafter referred to as ANMF) submit that the Nurses Award is also a relevant reference instrument.
Applicable law
[11] I must be satisfied that the Agreement passes the better off overall test (BOOT) in assessing whether it must be approved in accordance with the Act. 2
[12] An enterprise agreement passes the BOOT if the Commission is satisfied, as at the time the application is made, that each award covered employee and each prospective award covered employee for the enterprise agreement would be better off overall if the enterprise agreement applied, than if the modern award applied. 3
[13] The BOOT assessment necessarily requires the identification of the modern award(s) that cover an employee and would cover a prospective employee, in relation to work that the employee or prospective employee may perform under the Agreement.
[14] 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. 4
[15] 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. 5
[16] Interpretive 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. 6
[17] It is clear from the references to “each award covered employee” 7 and “each prospective award covered employee”8 in s.193(1) that every employee and prospective employee must be assessed as better off overall under the Agreement than if the relevant modern award applied to that employee or prospective employee, as at the test time.9 However, s.193(7) permits the Commission to be satisfied, in particular circumstances, that all employees and prospective employees in a class of employees or prospective employees will be better off if the enterprise agreement applied to that class than if the relevant modern award applied to that class.10
About Ozcare and its Care Assistants
[18] The Applicant is a not-for-profit organisation founded by the St Vincent de Paul Society of Queensland in 1996.
[19] If the Agreement is approved, it would apply to 2,967 Ozcare employees throughout Queensland across 60 locations. 11 Work is undertaken at Residential Aged Care Facilities, Community Care Services or in other community locations including in a client’s own home.12
[20] In the statutory declaration accompanying this application Ozcare described itself as primarily engaged in the activity of “Health and Community Services” and subsequently, in evidence filed with the Commission, as “within the aged and home care industries”. 13 In cross examination at the hearing, the Group Manager People (Mr Warhurst) also confirmed the accuracy of a document in which Ozcare describes its business to potential employees (in job advertisements) as “delivering aged care, disability care, nursing, health and community support services”.14
[21] Ozcare stated its business can be divided into two broad and operationally distinct divisions:
a) Residential Care - the provision of aged care services in facilities including aged care facilities, to elderly clients who have been assessed as eligible to receive care by an aged care assessment team organised by the Commonwealth Department of Health; and
b) Community Care - the provision of community based support services, including in-home care for aged and disabled clients, homeless and housing services, women’s refuges and drug and alcohol services. 15
[22] Care Assistants who would be covered by the Agreement are employed to work in both Residential Care and Community Care but the roles are not typically transferable and the Position Descriptions differ. 16 For example:
• In Residential Care, the role purpose is “to attend to the personal needs, including all activities of daily living of clients, at the direction and under supervision of a Registered Nurse”; 17 whereas
• In Community Care, the role purpose is “to assist clients and their families/carers by providing home support (e.g. personal care, domestic duties, preparation of meals, transport to shopping and medical appointments and other similar duties) whilst promoting and maintaining a person’s independence”. 18
[23] An Ozcare Residential Care Assistant is required to hold a Certificate III in Individual Support within 6 months of commencement whereas a Community Care Assistant is required to commence study to obtain a Certificate within 6 months of commencement. 19 According to the course materials in evidence, a Certificate III in Individual Support may include specialisation in: Ageing; Disability; Home and Community and Ageing, Home and Community. It may qualify a range of occupations including a Nurse’s Aide, Care Assistant, Home Care Assistant, Personal Care Assistant or Residential Aide.20
[24] Ozcare’s Duty Statement Flowchart for its Residential Care Assistants identifies a Registered Nurse as the relevant supervisor and lists duties, many of which appear to involve reporting to or working under direction of a Registered Nurse at the beginning, during and end of shift. At the hearing, the ANMF tendered a Position Description of a Registered Nurse which included supervision of Care Assistants among other roles that may be supervised by a Registered Nurse and other responsibilities. 21 However on the evidence of Mr Warhurst, at a practical level Residential Care Assistants work independently of the Registered Nurse and have limited contact mainly upon handover at the start and end of shift.22
[25] Community Care Assistants report to a Coordinator and seldom, if ever, have contact with a Registered Nurse or an Enrolled Nurse in the course of their work. This role mostly involves travelling to a client’s private residence to perform duties. 23
The Agreement
[26] The Agreement is expressed to cover Ozcare, its employees performing work within the classifications in the Agreement and as defined at Schedule 3, as well as the ANMF, the AWU, United Voice and the ASU (the Bargaining Representatives).
[27] Classification structures are at Schedule 1 for each of the following: Operations; Social Inclusion; Care Assistant; Administration; Co-ordination; Allied Health; Enrolled Nurse; Registered Nurse.
[28] The Care Assistant Classification Structure in Schedule 1 provides:
LEVEL | 2018 | 2019 | 2020 | Ozcare Positions |
1.1 | $23.5488 | $21.0198 | $24.5002 | • Care Assistant (without Certificate III) |
1.2 | $23.9946 | $24.4745 | $24.9640 | |
LEVEL | Ozcare Positions | |||
2.1 | $24.1321 | $24.6148 | $25.1070 | • Care Assistant (with Certificate III) |
2.2 | $24.6107 | $25.1029 | $25.6049 | |
LEVEL | Ozcare Positions | |||
3 | $25.5557 | $26.0668 | $26.5881 | • Care Assistant (min Cert IV or extensive experience) – by appointment only |
Care Assistant Level 3 A Care Assistant will only move to Care Assistant Level 3 by appointment and in accordance with the criteria set out in Schedule 3 – Generic Level Statements. | ||||
[29] Schedule 3 of the Agreement outlines the “Generic Level Statements” which include the essential job requirements and indicative tasks or skills for each classification in each structure. The indicative tasks or skills for Care Assistants provide:
Care Assistant Level 1
“Indicative tasks/skills of this level may include but not be limited to the following:
• Assist in the provision of quality care under supervision and direction as outlined in the care plan and other relevant documentation;
• Provide information relevant to the development of care plans;
• Report promptly any observed changes or concerns in client/resident’s health status;
• Complete documentation as required;
• Assist with orientation of staff as appropriate;
• Participate in workplace health and safety, infection control and training as required.”
Care Assistant Level 2
“Indicative tasks/skills of this level, in addition to Level 1, may include but [are] not limited to:
• Assist with medications on the request of the client/resident within a delegated or assigned range of duties, subject to legislative requirements and professional standards.”
Care Assistant Level 3
“Indicative tasks/skills of this level, in addition to Level 2, may include but [are] not limited to:
• Team Leader
• Continence resource advisor (Residential Aged Care)
• Orientation “buddy””
[30] The Care Assistant Classification structure at Schedule 3 also includes a prefacing note:
“Employees in Residential Aged Care Facilities employed prior to 1st July 2013 who are called an Assistant Nurse/AIN will remain known as Assistant Nurse/AIN.”
[31] For Enrolled Nurses and Registered Nurses, Schedule 3 also outlines the indicative tasks or skills for each level and the required nursing qualifications. Indicative tasks or skills for these classifications include contribution to and development, implementation and evaluation of client care plans; monitoring and delegation of care given by other staff; administration of medications.
[32] The Agreement before the Commission in this matter would replace the Ozcare Enterprise Agreement 2015 (2015 Agreement) which presently applies to Ozcare’s Care Assistants, Enrolled Nurses and Registered Nurses among other roles. The 2015 Agreement is a consolidation of historically separate enterprise agreements for Ozcare’s nursing staff working in aged care facilities and staff working in community based social services, home care services and crisis accommodation facilities. 24
The Nurses Award
[33] The Nurses Award is expressed to be an “occupational award” which covers:
“a) employers throughout Australia in the health industry and their employees in the classifications listed in Schedule B – Classification Definitions to the exclusion of any other modern award; and
“b) employers who employ a nurse/midwife, principally engaged in nursing/midwifery duties comprehended by the classifications listed in Schedule B – Classification Definitions.”
[34] “Health industry” is defined at clause 3 of the Nurses Award to mean:
“employers in the business and/or activity of providing health and medical services and who employ nurses and persons who directly assist nurses in the provision of nursing care and nursing services”.
[35] Schedule B of the Nurses Award relevantly includes a “Nursing assistant” classification, defined to mean:
“an employee, other than one registered with the Nursing and Midwifery Board of Australia or its successor or one who is in training for the purpose of such registration, who is under the direct control and supervision of a Registered or Enrolled nurse and whose employment is solely to assist an RN or EN in the provision of nursing care to persons.”
Schedule B goes on to provide that “nursing care” means:
“• giving assistance to a person who, because of disability, is unable to maintain their bodily needs without frequent assistance;
• carrying out tasks which are directly related to the maintenance of a person’s bodily needs where that person because of disability is unable to carry out those tasks for themselves; and/or
• assisting a registered nurse to carry out the work described in B.5.
• For the purposes of this award nursing care also includes care provided by midwives.”
[36] The Nurses Award also includes a provision at clause 4.8 directed at overlapping award coverage, as follows:
“Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.”
The other awards
[37] The Aged Care Award is expressed to be an “industry award” which covers:
a) employers in the aged care industry meaning “the provision of accommodation and care services for aged persons in a hostel, nursing home, aged care independent living units, aged care serviced apartments, garden settlement, retirement village or any other residential accommodation facility” 25; and
b) their employees in the listed classifications of Aged Care Employee Levels 1 to Level 7 (defined to include indicative tasks of, relevantly, a “Personal Care Worker” for Levels 2 to 7) 26,
to the exclusion of any other modern award. 27
[38] The Social Award is expressed to be an “industry award” which covers:
a) employers throughout Australia in the crisis assistance and supported housing sector; social and community services sector; home care sector; family day care scheme sector; and
b) their employees in the listed classifications and defined at Schedules B to E (Social and Community Services Employees; Crisis Accommodation Employees; Family Day Care Employees; Home Care Employees),
to the exclusion of any other modern award. 28
[39] Both the Aged Care and Social Awards include provisions for the “most appropriate” award to apply in circumstances of overlapping coverage. 29 The Aged Care Award also includes a note regarding the possibility that, where there is no classification for a particular employee in the Aged Care Award, an occupational award may cover the employer and employee.30
Views of the Bargaining Representatives
[40] In their original statutory declarations, all bargaining representatives supported approval of the Agreement. The ANMF and United Voice also agreed with the original statutory declaration that accompanied Ozcare’s application (later said by Ozcare to contain an error).
[41] At the hearing, the ANMF continued to support the approval of the Agreement, however maintained that there was no error in Ozcare’s statutory declaration and that the Commission should consider the Nurses Award relevant for the purposes of the BOOT assessment in relation to the Care Assistant classifications. The ANMF submitted the Agreement would pass the BOOT assessment even if the Nurses Award was found to apply.
[42] Also at the hearing, United Voice, the AWU and the ASU generally supported the position of Ozcare in relation to approval of the Agreement. Regarding the question of modern award coverage for Care Assistants under the Agreement, the only specific submissions were that:
a) Mr Warhurst certainly had made an error of law in his original statutory declaration, to the extent that the Nurses Award was the only relevant reference instrument for the Care Assistant classifications in the Agreement; and
b) At an industrial level, each of the AWU, the ANMF and United Voice accept shared coverage of classifications like Ozcare’s Care Assistants (also going by other names, such as Personal Care Worker, in other organisations).
Consideration
[43] The Care Assistant classifications in the Agreement describe, and would apply to, a broad range of skills, experience and potentially vastly different day to day duties. Ozcare is a large employer that is engaged in a significant undertaking, spanning 60 locations in Queensland ranging from large aged care facilities where Care Assistants work in teams of up to 6 per wing to private residential homes attended by individual Care Assistants. The Agreement provides for 3 levels of Care Assistant, each with broadly defined qualifications, skills and experience and no operational distinction for its Residential Care or Community Care services.
[44] It is not contentious that the Agreement is so broad as to cover classes of employees and prospective employees in the role of Care Assistant who are or would be covered by the Aged Care Award or the Social Award.
[45] But does the Nurses Award also cover a class of Care Assistant who may be covered by the Agreement?
[46] The Applicant asks the Commission to find that the Nurses Award is not relevant to the BOOT assessment of a Care Assistant, having regard to the classifications in Schedule B of the Award alone. That is, the Applicant submits that a Care Assistant in the Agreement does not align to the definition of a “Nursing assistant” in the Nurses Award because none of the Care Assistants employed by Ozcare under the Agreement are:
a) under the direct control and supervision of a Registered or Enrolled Nurse; and
b) solely employed to assist a Registered Nurse or Enrolled Nurse in the provision of nursing care to persons,
and, if Schedule B does not apply for the above reasons, then the other threshold criteria to establish coverage is not engaged.
[47] Mr Warhurst acknowledged in evidence that an Ozcare Care Assistant working in Residential Care under the Agreement may work under some control and supervision of a Registered Nurse. However the degree of that control and supervision, where it exists, is contested.
[48] The evidence of Ozcare points to a conclusion that there is no Care Assistant, presently employed, who is under the direct control and supervision of a Registered Nurse or an Enrolled Nurse and employed solely to assist a Registered Nurse or an Enrolled Nurse in the provision of nursing care to Ozcare’s clients. The ANMF challenged the credibility of this evidence but did not submit contradictory evidence.
[49] In any event, the BOOT involves a hypothetical assessment which requires regard to be had to potential coverage of prospective employees. Even accepting Ozcare’s evidence in this regard, it is conceivable that a class of prospective employee may be aligned to a Nursing assistant within the meaning of Schedule B of the Nurses Award. For example, under the Agreement:
• A Registered Nurse is required to develop, implement, monitor and review client care plans. An Enrolled Nurse may contribute to the development and evaluation of care plans and carry out those care plans as directed by the Registered Nurse, initiate care plan reviews and provide guidance to other employees. A Care Assistant may be required, under supervision and direction as outlined in the care plan and other relevant documentation, to assist in the provision of care.
• A Registered Nurse and Enrolled Nurse may delegate duties. A Care Assistant may be required to perform duties within a delegated or assigned range of duties, such as assistance with medications. Such duties may assist a Registered Nurse or Enrolled Nurse with the performance of their roles which include administration of medicine. On the evidence, this could only be the case in Residential Care however the Agreement does not distinguish between operational functions.
• The qualifications required to perform a Level 2 or 3 Care Assistant role include that which could be engaged to directly and solely assist a Registered Nurse or Enrolled Nurse.
[50] There is nothing in the Agreement or before the Commission to say that a Care Assistant would never be employed under the Agreement solely to assist a Registered Nurse or Enrolled Nurse in the provision of nursing care (as defined in the Nurses Award), under the direct control and supervision of a nurse. To the contrary, I consider that the Agreement would permit a Care Assistant to be employed for this purpose.
[51] In the circumstances, I am satisfied that Ozcare may in future employ a Care Assistant under the Agreement to perform a role aligned to that of the “Nursing assistant” at Schedule B of the Nurses Award. Accordingly, a consideration of the other criteria at clause 4.1 of the Nurses Award is also necessary.
[52] Ozcare acknowledged that it is covered by the Nurses Award to the extent that it employs Registered Nurses and Enrolled Nurses, however sought to say that such coverage is attracted through the “occupational” threshold at clause 4.1(b) of the Award and not necessarily because it is in the “health industry” for the purposes of clause 4.1(a). The ANMF submitted that coverage of nurses pursuant to clause 4.1(b) would attract coverage to any of the classifications in Schedule B in isolation and also submitted Ozcare is covered by clause 4.1(a) because it is in the health industry as defined and covered by Schedule B.
[53] Regarding clause 4.1(a) of the Nurses Award, whether Ozcare is in the health industry as defined therein is not exclusive - the enterprise of an employer can have more than one character and be in more than industry. 31 On the evidence before the Commission in the present application, it is apparent that Ozcare variously describes itself as being in the business or activity of providing “health services”, among a number of other services.32 It is an employer of both Registered Nurses and Enrolled Nurses. It also employs persons who directly assist those nurses in the provision of nursing care and services, in a range of capacities and degrees. Together with the above findings about the application of Schedule B, I find that the thresholds at clause 4.1(a) of the Nurses Award are met.
[54] On a plain reading of clause 4.1(b), the Nurses Award is intended to cover the occupations of a nurse or midwife to the extent that the nurse or midwife is principally engaged in the duties outlined at Schedule B and would not attract coverage of the Nurses Award to Ozcare’s Care Assistants in isolation. However I am satisfied that clause 4.1(a) and (b) are mutually exclusive.
[55] The “more appropriate” provisions of the Aged Care Award and Social Award do not displace what would otherwise be coverage of the Nurses Award in this context. The prefacing words to the coverage provision at clause 4.1 of the Nurses Award clearly state that it is an occupational award. The Full Bench in drafting these awards gave consideration to the potential for overlap between the Nursing assistant classification in the Nurses Award and the Aged care employee (Personal care worker) in the Aged Care Award, but decided to retain the Nursing assistant classification and “make it directly relevant to the work of nurses”. 33 The Aged Care Award notes that an occupational award may simultaneously apply. Where a class of Ozcare Care Assistant is covered by the Nurses Award pursuant to clause 4.1(a), as I have found to be the case here, the Nurses Award is clearly expressed to apply to the exclusion of any other modern award.
[56] Finally I note that the industrial context and history, whilst useful to understanding the genesis of the present issue, is not particularly helpful to determining the relevant reference instruments and assess the application in this matter. The authority to which I was referred in Queensland Nurses’ Union of Employees v Blue Care 34 similarly provides useful context in terms of the evolution of the modern awards and the potential for overlap between them. However it is an authority on a specific set of facts and circumstances, in the context of a dispute about a particular enterprise agreement in relation to a different employer, and of limited relevance in the context of the present issue.
Other concerns
[57] Other concerns raised with or by the Commission in relation to whether the Agreement must be approved in accordance with the Act are summarised above. 35
[58] Materials were provided by the Applicant on 21 November 2018, 17 and 30 January 2019 and 7 and 14 February 2019 in relation to those concerns. On 7 February 2019, consolidated undertakings were provided by the Applicant. The bargaining representatives have provided their views including most recently at the hearing on 12 March 2019.
[59] However, mindful that Ozcare requested the opportunity to provide further undertakings following this decision about the award coverage issue, a further opportunity for undertakings and views of the bargaining representatives will be afforded.
[60] For completeness it is noted that, having found that the Nurses Award is relevant to an assessment of the Care Assistant classifications in the Agreement, as was originally the belief of Ozcare’s Group Manager People, I am satisfied that there is no cause for concern about whether employees genuinely agreed to the Agreement in this regard. 36
Conclusion
[61] For the above reasons, and on the evidence before the Commission in the present matter, I am satisfied that the Agreement would apply to Care Assistants who are or may be engaged to perform work that is covered by the Aged Care Award, the Social Award and the Nurses Award.
[62] If this conclusion is incorrect, then I note that there may be a question as to whether the Agreement was “genuinely agreed” for the purposes of s.186(2)(a) of the Act.
[63] The Commission will separately correspond with Ozcare and the bargaining representatives to invite further undertakings and views about any further undertakings, following which a final determination of this Application will be made.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR707374>
1 Applicant’s Form F17 Statutory Declaration of 16 July 2018 at item 3.1.
2 Pursuant to s.186(2) of the Act, noting the BOOT is just one of the matters about which the Commission must be satisfied.
3 ss.193(1) and (6) of the Act.
4 s.48 of the Act.
5 Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 (Coles) at [22].
6 Coles; Carpenter v Corona Manufacturing 122 IR 387 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.
7 Defined at s.193(4) of the Act.
8 Defined at s.193(5) of the Act.
9 Solar Systems Pty Ltd [2012] FWAFB 6397 at [11]; Hart v Coles Supermarkets Australia Pty Ltd [2016] FWCFB 2887 at [6], [15]; SDAEA v Beechworth Bakery [2017] FWCFB 1664 at [11].
10 Loaded Rates Agreements [2018] FWCFB 3610 at [102]-[103].
11 Applicant’s Form F17 Statutory Declaration of 16 July 2018 at item 2.10.
12 Agreement at clause 1.4.
13 Applicant’s Form F17 Statutory Declaration of 16 July 2018 at item 4.1 and Witness Statement of Brett William Warhurst at paragraph 3 [Exhibit 1].
14 Exhibit AN-1.
15 Witness Statement of Brett William Warhurst at paragraphs 4 and 7.
16 Witness Statement of Brett William Warhurst at paragraphs 5 and 6.
17 Annexure BW-1 to Witness Statement of Brett William Warhurst.
18 Annexure BW-2 to Witness Statement of Brett William Warhurst.
19 Witness Statement of Brett William Warhurst at paragraphs 11 and 15.
20 Witness Statement of Brett William Warhurst at BW-4.
21 Exhibit AN-2.
22 Witness Statement of Brett William Warhurst at paragraph 9 and Annexure BW-3.
23 Witness Statement of Brett William Warhurst at paragraphs 13 and 14.
24 Witness Statement of Brett William Warhurst at paragraph [16] and in evidence at the hearing on 12 March 2019.
25 Aged Care Award at cl.3.
26 Aged Care Award at cl.14 and Schedule B.
27 Aged Care Award at cl.4.1.
28 Social Award at cl.4.1 and Social Award cl.13, 15-17 and defined at Schedules B to E.
29 Aged Care Award at cl.4.7 and Social Award at cl.4.8.
30 Aged Care Award, in the note at cl.4.7.
31 Coles at [19].
32 Summarised at paragraph [20] of this Decision.
33 Award Modernisation[2009] AIRCFB 345.
34 [2015] FWC 1388.
35 At paragraph [4] of this Decision.
36 For example, as identified by Full Benches of this Commission in CFMEU v Shamrock Civil Pty Ltd [2018] FWCFB 1772 and AWU v Wagners Industrial Services Pty Ltd [2019] FWFB 1731.
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