Queensland Nurses' Union of Employees v Blue Care
[2015] FWCFB 6607
•22 OCTOBER 2015
| [2015] FWCFB 6607 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Blue Care
(C2015/4736)
VICE PRESIDENT CATANZARITI | SYDNEY, 22 OCTOBER 2015 |
Appeal against decision [2015] FWC 1388 of Deputy President Asbury at Brisbane on 23 June 2015 in matter number C2013/3732.
[1] This is an appeal by the Queensland Nurses’ Union of Employees (Appellant) against a decision 1 (Decision) made by Deputy President Asbury in dealing with a dispute arising under the Blue Care/Wesley Mission Brisbane Nursing Employees Enterprise Agreement 2013 (the 2013 Nursing Agreement) pursuant to s.739 of the Fair Work Act 2009 (the Act).
[2] Prior to the hearing of the appeal on 25 August 2015, Mr Friend of Counsel sought permission to appear for the Appellant and Mr Parry of Counsel sought permission to appear for Blue Care (Respondent). Given the complexity of the matter, and having regard to s.596 of the Act, permission was granted to both parties to be represented.
Background
[3] In the matter at first instance, the Appellant sought that the Commission deal with a dispute under clause 4.4 ‘Grievance and Dispute Settling Procedures’ of the 2013 Nursing Agreement. The dispute was arbitrated by way of the following question:
“Whether Ms Olwyn Scott (Ms Scott) and Ms Ronda Orreal (Ms Orreal) and other employees employed by the Respondent who are performing the same or substantially the same work as Ms Scott or Ms Orreal should be employed by the Respondent in the classification of Assistant in Nursing as described in the classification statement in Schedule 3 to the Blue Care/Wesley Mission Brisbane Nursing Employees Enterprise Agreement 2013.”
[4] The background to the dispute was summarised in the Decision as follows:
“[2] The background to the dispute is extensive and can be summarised as follows. The Uniting Church in Australia Property Trust (Q.) trading as Blue Care (Blue Care) operates some 260 centres across Queensland and Northern New South Wales providing care for older people, those with disabilities and others in need. Blue Care has 10,500 staff and volunteers who provide care for more than 12,500 people. Care is offered to people in their homes, in the community and in Blue Care’s residential aged care facilities and retirement living villages. The range of services provided by Blue Care includes nursing, allied health, personal care, domestic assistance, respite, pastoral services and social support.
[3] Blue Care employs persons in a range of classifications to undertake the work of providing those services. The present dispute concerns two groups of Blue Care employees in residential aged care facilities who provide a range of services broadly termed as assisting with nursing and personal care. Employees who provide those services have to date been classified as Assistants in Nursing (AINs) and Personal Carers (PCs). “
[5] The Deputy President summarised the position of the parties and the substance of the dispute as follows:
- The principal purpose for which Ms Scott, Ms Orreal and employees who perform the same or substantially the same work are employed, is to perform the work set out in the classification statements in the Nursing Agreement 2013;
- The work performed by Ms Scott, Ms Orreal and others who are classified as PCs, is the same work as is performed by employees who are classified as AINs;
- All employees providing care services or any services included in a care plan for residents who would formerly have been classified as requiring “high care” are properly classified as AINs under the 2013 Nursing Agreement; and
- The duties performed by PCs and AINs are set out in care plans which are nursing care plans and as a result, PCs and AINs are supervised either directly or indirectly by Registered or Enrolled Nurses and are assisting with the provision of nursing care as described in the 2013 Nursing Agreement.
“1.5 The QNU’s case
[38] Ms Scott is employed as a PC at a relatively new facility - Azure Blue Redcliffe. Ms Orreal is employed at the Erowal facility at Maleny on a dual basis working some shifts as an AIN and some as a PC. While performing work designated by Blue Care as that of a PC, Ms Scott and Ms Orreal are classified and paid under the 2008 Care Agreement and will be classified and paid for that work under the 2013 Care Agreement if that Agreement is approved.
[39] The QNU asserts that Ms Scott and Ms Orreal should be classified as AINs under the 2013 Nursing Agreement with respect to all work performed by them. The QNU also asserts that other employees performing the same or substantially the same work as Ms Scott and Ms Orreal should also be classified as AINs under the 2013 Nursing Agreement notwithstanding that they are classified and paid by Blue Care as PCs under the 2008 Care Agreement.
[40] The QNU further asserts that the principal purpose for which Ms Scott and Ms Orreal (and those who perform the same or substantially the same duties) are employed is to perform work set out in the classification statements in the 2013 Nursing Agreement and that Blue Care is undertaking a “re-badging” exercise to avoid its obligations in this regard. Ms Scott and Ms Orreal do not perform other duties which change their roles in a qualitative sense and the evidence does not support a finding that the role of a PC is broader and more flexible than that of an AIN. The legislative changes referred to by Blue Care and its assertions about managerial prerogative do not justify the application of another industrial instrument to the employment of Ms Scott, Ms Orreal and other employees who perform the same or substantially the same work.
[41] The case conducted by the QNU has a number of key premises which can be summarised as follows:
[42] The QNU’s case is that notwithstanding changes to the environment in which the Agreements operate, there has been no real change in terms of the care needs of residents (other than that the acuity of residents has increased) or the duties that are performed to implement that care. The QNU’s assertion is that Ms Scott and Ms Orreal (and employees performing the same or substantially the same duties) have always been entitled to be classified as AINs under the 2013 Nursing Agreement and earlier iterations of that Agreement and have never been properly covered by the Care Agreements. It is also implicit in the QNU’s case the 2008 Care Agreement and its earlier iterations, does not apply to a significant number of employees that Blue Care has classified and paid as PCs under that Agreement.
1.6 Blue Care’s case
[43] Blue Care submits that it should not be ordered by the Commission to employ Ms Scott, Ms Orreal and employees performing the same or substantially the same duties, in the classification of AIN. Essentially, Blue Care contends that Ms Scott, Ms Orreal and other employees classified by it as PCs are performing a flexible range of duties which may be required of them. Care plans setting out those duties are not nursing care plans, but rather are holistic documents that range across a number of disciplines and include matters that are related to daily living activities.
[44] Blue Care further contends that the Commission should be cautious about approaching the question of whether the two employees should be classified under the 2013 Nursing Agreement or the 2008 Care Agreement simply on the basis of the “principal purpose test”. While such an approach may be appropriate when dealing with classifications in an award, when dealing with an agreement, the proper approach is one of construction. The relevant question is: properly construed, what type of employees, performing what type of work, did the parties (being the employer, the bargaining representatives and the employees) intend the classifications in the Agreements to cover, and what employees do the classifications cover?
[45] In answering this question, there will be a number of considerations which could include: words; context; negotiations; tasks carried out by care workers; the interests of the employer; and the interests of the employees classified as both AINs and PCs. When these matters are considered, Blue Care contends that the classification of PC is designed to provide a flexible range of duties which overlap with the caring duties of employees classified as AINs. However, this overlap does not convert such employees into employees who should properly be classified as AINs under the 2013 Nursing Agreement. Blue Care also contends that it should not be ordered by the Commission to employ persons such as Ms Scott and Ms Orreal in the classification of AIN.
[46] Blue Care submits that it wants PCs to be covered by an agreement - namely the 2008 Care Agreement. It is further submitted that there has always been an overlap between persons described as Assistant Nurses or AINs and those described as PCs or Personal Support Assistants (PSAs) as they are termed in the 2013 Care Agreement, and that while there may be history involving disputes about this overlap in the past, the dispute before the Commission in the present case can only be decided on the basis of the evidence before the Commission and the application of that evidence to the particular question that has been posed for resolution at the present time.
[47] Further, Blue Care submits that the question of the correct classification of Ms Scott and Ms Orreal should not be looked at in isolation from all of the surrounding facts. The dispute is not to be resolved by simply comparing the 2013 Nursing Agreement and the 2008 Care Agreement. Consideration also needs to be given to the significant changes in the aged care industry and the needs of the employers arising from those changes.
1.7 Consideration
[48] The dispute is essentially about whether, and in what circumstances, the 2013 Nursing Agreement or the 2008 Care Agreement applies to Ms Scott and Ms Orreal. It is not sufficient for the QNU to establish that PCs and AINs are performing the same or substantially the same duties. The questions is, properly construed, does the 2013 Nursing Agreement apply to Ms Scott, Ms Orreal and employees performing the same duties or substantially the same duties. In order to answer this question, it is necessary to interpret the Agreements and then to determine, on the basis of the evidence, which of them applies to Ms Scott, Ms Orreal and other employees who are performing the same or substantially the same work.
[49] The approach to interpreting an agreement is well established. The starting point is the text of the agreement. It is permissible to consider the context in which an agreement is made in order to establish an ambiguity and to resolve it. In the present case the existence of ambiguity is established not only by the dispute subject of these proceedings, but by a long history of controversy between the parties about the same issue.
[50] I have given consideration to the text of the Agreements. I have also considered their history, the conduct of the parties to them and changes to the industrial relations, legislative and regulatory environments in which the Agreements operate. I have considered the evidence about the duties performed by Ms Scott, Ms Orreal and other employees performing the same or substantially the same work.
1.8 Conclusion
[51] The QNU has not established that Ms Scott, Ms Orreal, and employees performing the same or substantially the same work, should be employed by Blue Care as Assistants in Nursing under the 2013 Nurses Award. The answer to the question for arbitration is “No”. My reasons for reaching this conclusion are set out below.”
[6] The Deputy President determined in her lengthy decision that the Appellant had not established that Ms Scott, Ms Orreal and employees performing the same or substantially the same work, should be employed by the Respondent as AINs under the 2013 Nursing Agreement. As such, the Deputy President answered the question for determined as “No”.
Legislative Framework
[7] Appeals brought pursuant to s.604 of the Act involve an appeal by way of re-hearing, and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision-maker. 2 An appeal may only be made with the permission of the Fair Work Commission (the Commission); there is no right to appeal.
[8] Section 604 of the Act provides:
“604 Appeal of decisions
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or the Minimum Wage Panel); or
(b) made by the General Manager (including a delegate of the General Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).
(1) A person may appeal the decision by applying to the FWC.”
[9] If we are satisfied that it is in the public interest to do so, we must grant permission to appeal.
The Appeal
[10] The Appellant submitted that the task before the Deputy President the Decision was as follows:
(a) Construe the terms of the 2013 Nursing Agreement;
(b) Apply the ‘principle purpose test’ to the employment of Ms Scott and Ms Orreal (and relevant others); and
(c) Determine whether Ms Scott and Mr Orreal were properly employed by the Respondent in the classification of AIN under the 2013 Nursing Agreement.
[11] The Appellant submitted that the Deputy President erred in carrying out this task and the grounds of appeal were summarised and set out in the Appellant’s Notice of Appeal and written submissions as follows:
(a) The errors concerning the approach to, and construction of the 2013 Nursing Agreement (the construction grounds) (grounds 1 – 5 in the Notice of Appeal):
1. The Deputy President erred in finding that Ms Scott and Ms Orreal and other employees of the Respondent performing the same or substantially similar work (The Employees) are not employed in the classification of Assisting in Nursing as described in the 2013 Nursing Agreement;
2. The Deputy President erred at paragraph 48 of the Decision in approaching the issue of construction of the 2013 Nursing Agreement by asking which of the agreements applied to the Employees;
3. The Deputy President erred at paragraph 48 of the Decision by not approaching the issue of construction of the 2013 Nursing Agreement by construing the terms of agreement itself;
4. The Deputy President erred at paragraphs 61 of the Decision by approaching the question before her on the basis that the principle purpose test was not determinative of the question of whether or not the Employees were covered by the 2013 Nursing Agreement;
5. The Deputy President erred at paragraph 61 of the Decision by finding that the significant question before her was the proper construction of competing agreements rather than the proper construction of the 2013 Nursing Agreement.
(b) The error in finding on the definition of ‘nursing care’ in the 2013 Nursing Agreement (grounds 6 and 8 in the Notice of appeal):
6. The Deputy President erred at paragraph 74 of the Decision by finding that the expression “nursing case” in the 2013 Nursing Agreement only encompasses nursing duties which are delegated by the registered nurse or within the scope of nursing practice;
8. The Deputy President erred, including at paragraphs 393 and 410 of the Decision, by failing to properly apply or address the approach of the Full Bench of the Fair Work Commission in [2014] FWCFB 1447 to work performed by Ms Scott and Ms Orreal;
(c) In the alternative to (a) and (b), and on the basis that it was proper for the Deputy President to take into account the terms of the Blue Care-WMAHC-AWU-LHMU Certified Agreement (No 5) 2005 (as varied and extended 2008) (the 2008 Care Agreement) (ground 7 in the Notice of Appeal);
7. The Deputy President erred at paragraphs 98 of the Decision by wrongfully finding that the 2008 Care Agreement should be construed on the basis that exclusions which operate in respect of the agreement because of the operation of State Awards did not continue to operate after the modification of those State Awards.
[12] The Appellant further submitted in the Notice of Appeal that it is in the public interest for the Commission to grant permission for the appeal for the following reasons:
1. The decision contains appellable errors as set out above.
2. The nature of the appellable errors identified in the grounds of appeal warrant consideration by a Full bench.
3. Substantial injustice would result both for the Applicant and the employees of the Respondent supposing the decision was wrong.
4. The determination subject of the appeal concerns the application of an enterprise agreement applicable to a large workforce.
5. It is in the public interest that leave to appeal be granted so as to secure and maintain confidence in the processes of the Fair Work Commission and the proper exercise of its jurisdiction.
[13] In the Appellant submissions the decision of the Deputy President should be quashed and the question for the arbitration should be answered “yes”. In the alternative, the Appellant submitted that the matter be remitted to a single Member of the Commission, other than the Deputy President, to be heard and determined according to law.
[14] In response, the Respondent filed detailed written submissions outlining their position on each ground raised by the Appellant. In summary, the Respondent contended that:
(a) the Deputy President was correct in answering the question for arbitration in the negative;
(b) in response to grounds 1 to 5, the approach of the Deputy President in answering the question was correct;
(c) in response to ground 6 and 8, no errors were made by the Deputy President when determining the definition of ‘nursing case’ in the 2013 Nursing Agreement;
(d) in response to ground 7, the terms of the 2008 Care Agreement were correctly held to not exclude the two named employees the subject of the dispute.
[15] As such, in the Respondent’s submission the Deputy President did not err in finding that the named employees, and others like them, should not be classified an AINs.
[16] On the issue of public interest, the Respondent submitted that permission to appeal should not be granted as there was no basis on which the public interest has been enlivened. In the alternative, if permission were to be grant, the Respondent submitted that the appeal should be dismissed.
Consideration
[17] The Fair Work Commission must grant permission to appeal if it is satisfied it is in the public interest to do so. 3 The test of assessing whether the public interest is enlivened is discretionary, involving a broad value judgement.4 In GlaxoSmithKline Australia Pty Ltd v Colin Makin,5 the Full Bench summarised the test for determining the public interest as follows:
“[26] Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so. The expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made to be made by reference to undefined factual matters, confined only by the objects of the legislation in question. [Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.”
[18] Otherwise, the grounds for granting permission to appeal include that the decisions is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused. 6
[19] It is also important to note that the decision under appeal is of a discretionary nature. Usually, such a decision can only be successfully challenged on appeal if it is shown that the discretion was not exercised correctly. 7 It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:8
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[20] In writing this decision, the Full Bench has read and considered all material filed by the parties including all submissions, correspondence and relevant authorities.
[21] We are not minded to grant permission to appeal on the basis of any of the grounds raised by the Appellant for the reasons set out below.
Construction Grounds
[22] In regards to the construction grounds raised by the Appellant, we are not persuaded that there was any error in the Deputy President’s approach to the construction of the 2013 Nursing Agreement.
[23] In her lengthy and detailed decision, the Deputy President took a fairly orthodox approach to construction. She correctly set out the relevant principles of construction of agreements at paragraph [52] - [55] of the Decision with reference to Golden Cockerel 9. The Deputy President then considered the approach to determining the application of the 2013 Nursing Agreement at paragraphs [56]-[61] of the Decision. We find that on a proper reading of paragraphs [56]-[61], the Deputy President did not reject the application of the principal purpose test, as the Appellant contends, but rather accepted that the principal purposes test was relevant to the matter before her but was not determinative in itself and of more significance was the proper construction of the competing agreements. We do not find any error in this approach.
[24] The Deputy President commenced her consideration of the construction issues by analysing the 2013 Nursing Agreement at paragraphs [65]-[74]. She also considered the provisions of the 2008 Care Agreement at paragraphs [75]-[86] which was appropriate to consider as an aid to the construction of the 2013 Nursing Agreement as the 2013 Nursing Agreement was made in the context of the existence of and application of the 2008 Care Agreement. The 2008 Care Agreement also covered a large number of staff working with the same residents who were the subject of the nursing care referred to in the 2013 Nursing Agreement. In light of the findings at [404] as to the existence of ambiguity in the 2013 Nursing Agreement in respect of the classification of AINs, these were important objective background facts which the Deputy President was obliged and entitled to consider.
[25] The Deputy President also considered the Blue Care Enterprise Award – State 2004 at paragraphs [87]-[90] because of the way in which the application clause of the 2008 Care Agreement was framed. Likewise from paragraphs [91]-[95] she considered the Nurses Aged Care Award – State as it was relevant to the coverage of the Blue Care Enterprise Award – State 2004. From [96]-[102] she then considered the effect of the State Awards and exclusions on the application of the Care Agreement and concluded that the Care Agreement applied to employees covered by the Aged Care Award 2010 which replaced the awards referred to in the 2008 Care Agreement. In paragraphs [103]-[105] the Deputy President set out the classification definitions in the 2008 Care Agreement noting that the classification definitions at level 2 and level 3, which apply to persons classified as PCs, are broader and specify a wider range of indicative tasks than those for AINs in the 2013 Nursing Agreement.
[26] In paragraphs [106]-[246] the Deputy President set out at length the context in which the dispute arose including the history of disputation about AINs and PCs, the negotiation and approval of the 2013 Nursing Agreement, the legislative and regulative context of aged care and the nursing profession and the conduct of the parties. The duties of Ms Scott and Ms Orreal and other employees were then considered at [247]-[383] and the evidence in this respect supported the findings in paragraph [394] that PC’s perform a range of tasks associated with the environment in which aged persons are cared for that are no incidental or peripheral duties. We find no error in respect of this approach.
[27] The Deputy President then set out her conclusions from paragraphs [384]-[430]. The Deputy President considered the construction of the 2013 Nursing Agreement advanced by the Appellant, namely that the work performed by Ms Orreal and Ms Scott is the work set out in the classification statements in the 2013 Nursing Agreement and held at paragraphs [385] that such a construction should not be accepted because they each performed work which was not that of persons engaged for the principal purposes of assisting with the provision of nursing care under direct or indirect supervision of an Registered Nurse (RN) or as delegated by an RN. In coming to this conclusion the Deputy President correctly relied upon a number of matters arising from the text of the 2013 Nursing Agreement itself. The Deputy President then went on at paragraphs [387]-[391] to analyse various features of the 2013 Nursing Agreement that impacted upon the width of the terms ‘assistants in nursing’ and from paragraphs [392]-[395] considered the focus and width of the tasks of the ‘personal carer’ under the 2008 Care Agreement. Here the Deputy President correctly considered that these tasks were of a nature that was considerably wider than, and not peripheral or incidental to, those duties referred to in the classification definition for AIN’s in the 2013 Nursing Agreement.
[28] The Deputy President correctly stated at paragraphs [401] that it is permissible to consider the context of the agreement in order to expose an ambiguity as well as to resolve it. She then went on from paragraph [401]-[420] to set out a number of features of the context in which the 2013 Nursing Agreement was made that led her to conclude at [421] that it was the common intention of the parties to maintain the distinction between AINs and PCs. 10
[29] Having engaged in a proper construction exercise and looking at a wide variety of material including evidence as to the duties of the Employees, the Deputy President came to certain conclusions that were reasonable on the material before her. The Deputy President was satisfied that ambiguity existed and based on the text of the 2013 Nursing Agreement, she concluded that it applied to employees performing nursing work and employees assisting with that work. Having gone through a range of matters she concluded:
“[422] I am satisfied, and find, that PCs perform a broader range of tasks that those performed by AINs and that the overlap is not a sufficient basis for a conclusion that Ms Scott, Ms Orreal and employees performing the same or substantially the same work, should be classified as AINs.
[423] When the duties performed by Ms Scott and Ms Orreal (and other employees performing the same or substantially the same duties) are analysed in light of the text and context of the 2013 Nursing Agreement, it is apparent that the principal purpose for which they are employed is to perform the work and range of duties described in the classification definitions for PCs under the 2008 Care Agreement.”
[30] We do not find that there was an error in the approach of the Deputy President to the construction of the 2013 Nursing Agreement. The Deputy President correctly undertook the task required to answer the question for arbitration by engaging in a construction exercise of the terms of 2013 Nursing Agreement, applied the principal purpose test to 2013 Nursing Agreement so construed and determined that the Employees were not employed by the Respondent in the classification of AIN in the 2013 Nursing Agreement. We consider that the principal purposes test only becomes relevant once the construction exercise has been completed. There is nothing erroneous with the primary focus being on the proper construction of the agreement as a first step. The Deputy President correctly considered the issues she was required to consider, consistent with the relevant authorities.
Definition of Nursing Care
[31] The Appellant has submitted that there was error in the Deputy President’s approach as to the meaning of ‘Nursing Care’ at paragraph [74] of the Decision in finding that the expression ‘Nursing Care’ in the 2013 Nursing Agreement only encompassed nursing duties which are delegated by the RNs or within the scope of nursing practice. The finding was as follows:
“[74] The 2013 Nursing Agreement does not contain a definition of “nursing care”. However, in my view, it is implicit in the text of the Agreement that nursing care encompasses nursing duties that are delegated by RNs or are within the scope of nursing practice. That the Nursing Agreement is an occupational based document is apparent from the fact that there are no generic classification levels contained within it – ie. for employees not elsewhere classified, or for employees performing duties other than nursing duties. There is no reference to duties such as cleaning, handling materials, preparing meals or snacks, serving food, dealing with crockery and cutlery. References to personal care and assistance with daily living activities are in the definitions for Enrolled and Registered Nurses and not for Assistants in Nursing. The reference to personal care is also governed by the term “in accordance with scope of practice” indicating that it is personal care with a nursing element.”
[32] In support of this submission, the Appellant has relied on a number of cases that they contend are illustrative of the correct definition of the expression ‘nursing’. We consider that these cases are of limited use in determining the definitions set out in the 2013 Nursing Agreement. The definition of ‘nursing care’ within the indicative tasks of the AIN classification statement in the 2013 Nursing Agreement must be considered in the context of the business of the Respondent and the aged care industry generally, the relevant circumstances where a large number of employees were engaged under the 2008 Care Agreement as PC’s for some years and the legislative and industrial context of the aged care sector as recognised by the Commission in, for example, the Aged Care Award. The proper approach to assessing the objective intentions of the parties when making the 2013 Nursing Agreement is to consider the specific context in which the relevant term is used. We do not consider that importing the definition of ‘nursing’ or ‘nursing care’ from other decisions of the Commission is helpful and any presumption of consistent use of terminology is weak in the construction of certified agreements in circumstances where the majority of previous cases involve consideration of the term ‘nursing’ prior to significant legislative and industry reforms. 11 The authorities, including those relied on by the Appellant do not support a proposition that there is a fixed meaning to the term ‘nursing’ or ‘nursing case’.
[33] Moreover, we make note of the relevant case raised by the Respondent, namely Re Award Modernisation 12 and agree that the coverage of the Nurses Award 2010 and the limitations on the width of the classifications of Nursing Assistant under that award was relevant to the interpretation of the 2013 Nursing Agreement. We note that in the process of seeking approval from the Commission for the 2013 Nursing Agreement, both parties asserted that the reference instrument was the Nurses Award 2010 and no reference was made to the Aged Care Award 2010. As such, the focus of the work performed under the 2013 Nursing Agreement, as described by the Deputy President in paragraphs [385]-[391] considered in the context of the employment of PCs by the Respondent, was a legitimate and appropriate basis for ascertaining who the parties intended to cover in such a sector. The matter involved the construction of an instrument agreed between the parties in the context of other existing arrangements. This involved the determination of who the agreement was intended to cover, rather than a consideration of union rules and terms used in other decisions in other contexts.
[34] We are not persuaded by this ground of appeal and do not find that there was any error in the Deputy President’s finding on the definition of ‘nursing care’ in the 2013 Nursing Agreement.
Operation of State Awards
[35] The Appellant’s alternate submission is that even if it was proper for the Deputy President to take into account the 2008 Care Agreement, the Deputy President erred at paragraph [98] of the Decision by incorrectly construing the 2008 Care Agreement on the basis that exclusions which operate on it because of the operation of the State Awards did not continue to operate after the modification of those State Awards. The relevant paragraph of the Decision is as follows:
“[98] This is apparent from the way in which the framers of the 2008 Care Agreement have differentiated between previous Agreements and Awards. By virtue of clause 3.1.3 of the 2008 Care Agreement, terms of the previous Agreements - to the extent they are not inconsistent with it - have been incorporated into the 2008 Care Agreement in the form they were in at the time the 2008 Care Agreement was made. In contrast, the Awards listed in Appendix 2 have not been incorporated into the 2008 Care Agreement.”
[36] We are not persuaded by this submission. It is clear on the material before us that the classes of persons described in the Blue Care Enterprise Award – State 2004 referred to by the Appellant are described using terminology with no contemporary meaning. Accordingly the exclusions contained in the former State Awards cannot have the same effect they did when referred to at the time of the making of the 2008 Care Agreement. The 2008 Care Agreement and 2013 Nursing Agreement must be construed in a manner that enables those agreements to operate consistently with the legislative and industrial environment in existence over the period of their operation.
[37] We find that there was no error in the approach of the Deputy President at [97] in accepting that the framers of the 2008 Care Agreement would not have intended that these exclusions would continue in the event that the State Awards were varied or ceased to operate. It was appropriate for the Deputy President to consider the meaning and application of the relevant instruments in a modern context and not in some time frame which is out of date and inapplicable under the current legislative and industrial environment.
[38] We do not find any merit in the Appellant’s submissions on this point.
Conclusion
[39] Absent error on the part of the primary decision-maker, the appeal process is not intended to provide an avenue for an unsuccessful party to re-run their case or redress deficiencies in the manner in which their case was run at first instance. 13
[40] We find that the Deputy President’s Decision was not affected by any appellable error.
[41] We do not consider that the Appellant has demonstrated that it is in the public interest to grant permission to appeal.
[42] Permission to appeal is refused and the matter is dismissed. .
VICE PRESIDENT
Appearances:
W Friend QC with C Dowling of counsel for the Appellant.
F Parry QC with C Murdoch of counsel for the Respondent.
Hearing details:
27 August
2015
Brisbane.
Final written submissions:
Outline of submissions of the Appellant filed 6 August 2015.
Outline of submissions on behalf of the Respondent filed 24 August 2015.
1 Queensland Nurses’ Union of Employees [2015] FWC 1388.
2 Coal and Allied v AIRC (2000) 203 CLR 194 at 203–4 per Gleeson CJ, Gaudron and Hayne JJ.
3 Fair Work Act 2009, s.604(2).
4 Esso Australia Pty Ltd v AMWU; CEPU; AWU[2015] FWCFB 210 at [6].
5 [2010] FWAFB 5343 at [27].
6 Esso Australia Pty Ltd v AMWU; CEPU; AWU[2015] FWCFB 210 at [7].
7 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
8 Ibid.
9 The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited [2014] FWFB 7477.
10 Respondent’s submissions at 3.28.
11 Appeal Book, 203-208.
12 [2009] AIRCFB 345 at [152].
13 Melbourne Stadiums Ltd v Sauter [2015] FCAFC 20 at [128]; Esso Australia Pty Ltd v Australian Workers Union & Ors[2015] FWCFB 210 at [17] (citing KA Murphy v SF Finance Pty Ltd (unreported, Print P1395, AIRCFB, 29 May 1997); Curtis v Darwin City Council (2012) 224 IR 174 at [80]).
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