Queensland Nurses' Union of Employees v Blue Care

[2015] FWC 1388

[2015] FWC 1388 [Note: An appeal pursuant to s.604 (C2015/4736) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Queensland Nurses’ Union of Employees
v
Blue Care
(C2013/3732)

DEPUTY PRESIDENT ASBURY BRISBANE, 23 JUNE 2015

Alleged dispute concerning the classification of Assistants in Nursing in the Blue Care/ Wesley Mission Brisbane Nursing Employees Enterprise Agreement 2013.

Contents
1. SUMMARY 4
1.1 Introduction 4
1.2 Industrial regulation 4
1.3 Legislative reform in the aged care industry and Blue Care’s response 5
1.4 The dispute application 6
1.5 The QNU’s case 7
1.6 Blue Care’s case 8
1.7 Consideration 9
1.8 Conclusion 9
2. THE APPROACH TO CONSTRUCTION OF AGREEMENTS 10
3. THE APPROACH TO DETERMINING THE APPLICATION OF AN AGREEMENT 11
4. WITNESSES AND EVIDENCE 12
5. THE TEXT OF THE AGREEMENTS 13
5.1 The 2013 Nursing Agreement 13
5.1.1 Application 13
5.1.2 Classification definitions 14
5.2 The 2008 Care Agreement 18
5.2.1 Application 18
5.2.2 The Blue Care Enterprise Award – State 2004 20
5.2.3 The Nurses Aged Care Award – State 22
5.2.4 The effect of Queensland Awards and exclusions on the application of the 2008 Care Agreement 25
5.2.5 Classification definitions in the 2008 Care Agreement 26
6. CONTEXT 29
6.1 History of disputation about AINs and PCs 29
6.1.1 The Churches of Christ Case 29
6.1.2 The making of the Blue Care Enterprise Award – State 2004 30
6.1.3 The ANF Case 31
6.2 The history of industrial regulation of Blue Care employees 32
6.3 The negotiation and approval of the 2013 Nursing Agreement 34
6.4 Conduct of the parties with respect to the 2013 Nursing Agreement and the present dispute 36
6.5 The Modern Awards 44
6.5.1 Coverage of Modern Awards with respect to Blue Care employees 44
6.5.2 The Aged Care Award 2010 45
6.5.3 The Nurses Award 2010 49
6.6 Legislative context and Regulation of Aged Care 50
6.7 Regulation of the nursing profession 53
6.8 The Tailor Made Model 58
7. THE DUTIES OF MS SCOTT AND MS ORREAL 63
7.1 Overview 63
7.2 Evidence of Ms Rhonda Orreal 63
7.2.1 Erowal Aged Care Centre Hostel Duties List 0630 - 1330 66
7.2.2 Erowal Aged Care Centre Hostel Care Duties List 0630 – 1400 67
7.2.3 Erowal Aged Care Centre Maple and Beech Duties List 1400-2130 68
7.3 Evidence of Ms Olwyn Scott 68
7.4 Evidence of Ms Alba Vignolo 74
7.5 Evidence of Ms Jillian Wiese 78
7.6 Evidence of Ms Ruth Morris 79
7.7 Evidence of Ms Carmel Freeman 82
7.8 Evidence of Ms Glenis Delmore 83
7.9 Evidence of Ms Jane Suller 85
7.10 Evidence of Mr Kevin Davy 87
7.11 Evidence of Ms Lisa Guiver 92
8. CONCLUSIONS 95

1. SUMMARY

1.1 Introduction

[1] This Decision concerns an application by the QNU (the dispute application) pursuant to s. 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute under clause 4.4 Grievance and Dispute Settling Procedures of the Blue Care/Wesley Mission Brisbane Nursing Employees Enterprise Agreement 2013 (the 2013 Nursing Agreement). The dispute was not resolved by conciliation and the Commission is empowered to arbitrate. The issue in dispute, and the question for arbitration, is:

“Whether Ms Olwyn Scott (Ms Scott) and Ms Rhonda Orreal (Ms Orreal) and other employees employed by the Respondent who are performing the same or substantially the same work as Ms Scott and 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.”

[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).

1.2 Industrial regulation

[4] The terms and conditions of employment for AINs and PCs employed by Blue Care, have, for a considerable period, been regulated by agreements and awards. Separate agreements have covered nursing employees including AINs on the one hand and care and support employees including PCs on the other. Originally those agreements and awards were made and approved by the Queensland Industrial Relations Commission.

[5] Historically, awards of the Queensland Industrial Relations Commission operating in the aged care industry, have distinguished nursing homes from other facilities, such hostels, on the basis that nursing homes have accommodated residents with needs classified as “high care” and hostels have accommodated residents with needs classified as “low care”. These distinctions have been based on legislative and regulatory provisions which have in turn determined the Commonwealth Government funding that is provided for the care of residents in such facilities. The distinction has been reflected in agreements covering AINs and PCs employed by Blue Care.

[6] From 1997, a series of agreements covering PCs employed by Blue Care (the Care Agreements) have been approved by the Queensland Industrial Relations Commission (the Queensland Commission). The Australian Workers Union of Employees, Queensland (the AWU) and the Liquor, Hospitality and Miscellaneous Workers’ Union (now United voice) have been party to the Care Agreements. In the same period, a series of agreements covering nursing employees, including AINs, have also been approved.

[7] The Queensland Nurses’ Union (the QNU) and the AWU have been party to the Nursing Agreements. In 2004, an enterprise award for Blue Care was approved by the Queensland Commission which excluded nursing employees and employees who provided personal care services in nursing homes. By reference to that Award and other Awards applicable to the provision of accommodation and care services, the Care Agreements have excluded employees providing personal care in nursing homes.

[8] As a result of changes to industrial relations legislation, Awards covering employees of Blue Care and agreements applicable to the Company and its employees are now made and approved by the Fair Work Commission (the Commission). Currently, the Blue Care Wesley Mission Brisbane Nursing Employees Enterprise Agreement 2013 (the 2013 Nursing Agreement) applies to employees classified as AINs and the Blue Care West Morton Aged Homes Council – AWU/LHMU Certified Agreement (No. 5) 2005 (as varied and extended 2008) (the 2008 Care Agreement) applies to employees classified as PCs.

[9] The 2013 Nurses Agreement was approved by the Commission on 19 April 2013. The underpinning Award for the purposes of the requirements of the Act for approval, is the Nurses Award 2010. The 2008 Care Agreement is a preserved collective state agreement by virtue of transitional provisions of the former Workplace Relations Act 1996 and is expressed to apply to employees by reference to awards of the Queensland Commission which no longer operate. Notwithstanding those references, from 1 January 2010, the Aged Care Award 2010 covered employees to whom the 2008 Care Agreement applies.

[10] The Aged Care Award 2010 applies to the aged care industry and covers the provision of accommodation and care services in all residential accommodation facilities including nursing homes and hostels. The Nurses Award 2010 covers employers who provide health and medical services and who employee nurses and those who directly assist them in the provision of nursing care and nursing services.

1.3 Legislative reform in the aged care industry and Blue Care’s response

[11] There has been extensive legislative reform in the aged care industry. The distinction between high level and low level residential care has been removed and anyone assessed as needing permanent residential care can access any care service to meet his or her needs. A Consumer Directed Care requirement has been introduced for home care packages. A review is to be conducted to consider if other aged care services should be changed from a supply driven model to a consumer demand driven model.

[12] Since 1997, there has been a policy whereby residents in aged care facilities are permitted to “age in place” and to remain in a facility as their needs changed over time. Residents who would have formerly been classified as “high care” have been permitted to remain in facilities which previously only accommodated “low care” residents. Residents who are classified as requiring “low care” have been permitted to move into nursing homes with partners who require “high care”. As a result of aging in place, residents could, and did, have what were then high care needs, while living in a low care facility or area of a facility.

[13] Blue Care has decided to implement a model for the provision of care that it terms the “Tailor Made Model” (Tailor Made). Tailor Made is described as a model for care that delivers person centred care on a holistic basis. Blue Care has also reviewed staffing models as a result of the implementation of Tailor Made and determined that the key care role supporting its registered nursing staff will be PCs.

[14] The QNU was informed of Blue Care’s decision in relation to its staffing model in a number of meetings and in writing. The extent and timing of the information provided to the QNU is in dispute. However it is not in dispute that on 15 February 2013, the CEO of Blue Care wrote to the QNU confirming its new staffing model and that a greater recruitment of PCs would be required in the future.

[15] At that point, negotiations for the 2013 Nursing Agreement had been concluded and the access period for that Agreement was in effect. The ballot which resulted in the approval of the 2013 Nurses Agreement was conducted on 26 February and the Agreement was approved on 19 April 2013. The QNU supported the approval of the 2013 Nursing Agreement and the statements about its application made by Blue Care in the application for approval, including that the 2013 Nursing Agreement applies to only employees who would otherwise be covered by the Nurses Award 2010.

1.4 The dispute application

[16] The QNU held discussions with Blue Care about its position with respect to the new staffing model. While supporting the approval of the 2013 Nursing Agreement, the QNU made the dispute application subject of this Decision on 26 March 2013, when discussions with Blue Care did not resolve the Union’s concerns about what it viewed as Blue Care’s plan to replace AINs with PCs. There were a number of conciliation conferences which did not resolve the dispute.

[17] Hearings in relation to the application were conducted over the period from 13 December 2013 to 16 January 2015. A number of hearing dates were required to be vacated so that the QNU had an opportunity to prepare its case in response to an amended outline of submissions filed on behalf of Blue Care. The matter was further complicated when on 10 March 2014, Blue Care reached agreement with the AWU and United Voice on a replacement agreement for the 2008 Care Agreement. On 24 March 2014 Blue Care made an application for approval of that replacement Agreement (the agreement application) – entitled the Blue Care/Wesley Mission Care and Support Employees Enterprise Agreement 2013 (the 2013 Care Agreement).

[18] That application is also before the Commission as presently constituted and is the subject of separate albeit related proceedings. The agreement application has generated other proceedings in which the QNU has sought a bargaining order and has challenged the validity of the Notice of Employee Representational Rights issued by Blue Care in relation to the 2013 Care Agreement. The application for approval of the 2013 Care Agreement is opposed by the QNU on various grounds which centre on the QNU’s view that the classification definitions in the 2013 Care Agreement contain duties that are already set out in the classification definitions in the 2013 Nursing Agreement. The parties have agreed that the evidence in each matter is relevant to the other matter. This has resulted in a considerable delay in the finalisation of the application for approval of the 2013 Care Agreement.

[37] The hearing of the dispute application was conducted over some 11 days, not including preliminary conferences and mentions. Evidence was given by 19 witnesses, with 57 exhibits being admitted into evidence. The witness statements and exhibits were voluminous. Witnesses were cross-examined extensively and in great detail.

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:

• 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.

[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.

2.THE APPROACH TO CONSTRUCTION OF AGREEMENTS

[52] The approach to be taken to the construction of agreements was comprehensively set out in the Decision of a Full Bench of the Commission in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited. 1 After an extensive review of relevant case law, the following principles were distilled:

• The Acts Interpretation Act does not apply to the construction of an enterprise agreement made under the Fair Work Act 2009.



• In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.



• Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.



• If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.



• If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide in the interpretation of the agreement.



• Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:



• evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;



• notorious facts of which knowledge is to be presumed;



• evidence of matters in common contemplation and constituting a common assumption.



• The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.



• Context might appear from:



• the text of the agreement viewed as a whole;



• the disputed provision’s place and arrangement in the agreement;



• the legislative context under which the agreement was made and in which it operates.



• Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.



• The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties. 2

[53] To that summary might be added the observations of Madgwick J in Kucks v CSR that in construing an instrument drafted by persons who were likely “of a practical bent of mind”, and may have expressed themselves with some infelicity, meanings which avoid inconvenience or injustice can be reasonably strained for. 3 Or as Kirby J observed in Amcor v CFMEU, agreeing with those observations of Madgwick J in Kucks:

“The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction … should not be a strict one but one that contributes to a sensible industrial outcome such that would be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court of interpreting industrial instruments and especially Certified Agreements.” 4

[54] As can be seen from the principles set out above, the process of construction of agreements permits consideration of the text of the agreements and the context in which they were made to identify whether ambiguity exists and to in resolving any ambiguity. The context in which agreements were made can also be relevant to the extent that it establishes that a particular construction or operation was unlikely to have been intended. 5

[55] In the present case, the following matters are relevant to considering the context in which the Agreements, subject of the present dispute, were made and have operated:

• The history of industrial regulation of AINs and PCs employed by Blue Care;



• Disputation about the overlap between work performed by AINs and PCs;



• The conduct of the parties, including making a series of agreements over some 15 years covering AINs and PCs most recently the 2013 Nurses Agreement and the 2013 Care Agreement (which is awaiting a decision as to whether it should be approved);



• The introduction of Modern Awards;



• Changes to the legislative and regulatory environment.

3. THE APPROACH TO DETERMINING THE APPLICATION OF AN AGREEMENT

[56] The parties differ as to the approach to be taken in determining whether the 2013 Nursing Agreement applies to Ms Scott, Ms Orreal and employees performing the same or substantially the same work. The QNU submits that the correct approach is to consider the principal purpose for which the relevant employees were employed. In this regard, the QNU refers to a number of Decisions of the Commission to the effect that the principal purpose, or primary function test, requires a qualitative examination of the nature of the work and the circumstances in which the employee is employed to do the work rather than a mere quantitative assessment of the time taken to do the work. 6 In AMIEU v Teys Australia Beenleigh Pty Ltd7a Full Bench of the Commission applied the principal purpose test in determining the application of an enterprise agreement.

[57] Blue Care submits 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 that approach may be appropriate when dealing with classifications in an award, in an agreement the proper approach is one of construction – properly construed, what type of employees, doing what type of work, did the parties (being the employer, the bargaining representatives and the employees) intend the classifications in the Agreement to cover?

[58] Most of the cases referred to by the QNU in support of the submission about the principal purpose test were cases about the application of awards. Layton v North Goonyella Coal Mines Pty Ltd, 8 Tucker v Digital Diagnostic Imaging Pty Ltd9and Carpenter v Corona Manufacturing Pty Ltd10were cases where it was necessary for employees to establish that their employment was covered by an award in order to access a remedy for termination of employment.

[59] HSU No 1 Branch v Liviende 11involved determination of an appropriate award classification for employees covered by an agreement, in order to determine whether the rates in the agreement were less than those which would be payable under an award covering employees, for the purposes of the application of s. 206 of the Act, which provides that the base rate of pay under an enterprise agreement must not be less than the base rate of pay in a modern award that covers employees to whom the agreement applies.

[60] The case that dealt with the application of the principal purpose test in the context of an enterprise agreement – AMIEU v Teys Australia Beenleigh Pty Ltd 12 - also involved an extensive exercise of construction of an enterprise agreement and dealt with the question of whether a particular agreement applied to employees at all. This can be contrasted with the present case where the question involves consideration of which of two agreements applies to particular employees.

[61] While I accept that the principal purpose test is relevant in the present case, it is not determinative and of more significance is the proper construction of the competing agreements.

4. WITNESSES AND EVIDENCE

[62] The following witnesses gave evidence on behalf of the QNU:

● Ms Rhonda Louise Orreal, employed by Blue Care as an AIN and PC at Erowal, Maleney; 13
● Ms Glenis Rae Delmore, RN formerly employed by Blue Care at Homefield, Mackay; 14
● Ms Olwyn Beatrice Scott, employed by Blue Care as a PC at Azure Blue, Redcliffe; 15
● Ms Alba Vignolo, AIN formerly employed by Blue Care at Carina Heights Salvin Park Aged Care Facility; 16
● Ms Ruth Morris, AIN, formerly employed by Blue Care at Caloundra; 17
● Ms Bernadette Lillian O’Connor, Registered Nurse and QNU Organiser; 18
● Ms Veronica Therese Semple, QNU Industrial Officer; 19
● Mr Alan James Shepherd, QNU Professional Officer; 20 and
● Ms Delwyn Joyce Martin, RN, employed by Blue Care at Azure Blue, Redcliffe. 21

[63] The following witnesses gave evidence on behalf of Blue Care:

● Ms Lisa Guiver, General Manager - Metro North; 22
● Ms Glenys Webby, Director of Strategy; 23
● Mr Kevin Davy, Integrated Service Manager at Azure Blue Redcliffe; 24
● Ms Eleanor Hanhiniemi, Learning and Development Advisor; 25
● Ms Jacqueline Clark, Human Resources Manager for Blue Care Central Queensland and Fraser Coast; 26
● Ms Carmel Freeman, Service Manager for Blue Care West Terrace Aged Care Facility; 27
● Ms Jane Suller, Service Manager for Blue Care Erowal Aged Care Facility; 28
● Ms Jill Wiese, Integrated Services Manager at Carina Heights Salvin Park Aged Care Facility; 29
● Ms Wendy Russell, General Manager of the Sunshine Coast Cluster of Blue Care; 30 and
● Ms Gerri Donaldson, Manager of Quality and Compliance at RSL Care. 31

[64] I have considered all of the evidence and set out below that which I consider relevant to the matters in dispute.

5. THE TEXT OF THE AGREEMENTS

5.1 The 2013 Nursing Agreement

5.1.1 Application

[65] The 2013 Nursing Agreement was approved by me on 19 April 2013 and operates from 26 April 2013. By virtue of clause 1.3, the 2013 Nursing Agreement applies to Blue Care and Wesley Mission and their employees for whom classifications are contained in the Agreement.

[66] Clause 2.1, Objectives, of the 2013 Nursing Agreement commits the parties to:

“...the highest quality of care and services that provide for a holistic approach with continuity of care. This commitment is guided by but not limited to Residential Aged Care Accreditation Standards and the Australian Council of Health Care Standards.

The parties are committed to quality nursing care and this commitment is guided by professional advice from the Department of Health and Aging and the professional Codes of Guidelines established by the Nursing and Midwifery Board of Australia.

Through this Agreement, the parties commit to developing and implementing strategies that are designed to recognise and achieve productivity and efficiency improvements in the workforce, and to enhance job satisfaction, career pathways, job security and remuneration, while aiming to provide the highest quality of service and support which will maximise each resident’s/clients quality of life.

Through this Agreement, the parties commit to developing strategies to address and reduce the frequency and amount of casual employment.

The parties to this Agreement will collectively strive to achieve quality clinical outcomes for residents/clients.

The purpose of this Agreement is to achieve a stable industrial relations framework across Blue Care’s and Wesley Mission Brisbane’s services.”

[67] “Aged Care Facility” is defined in clause 3.2(c) of the 2013 Nursing Agreement in the following terms:

“...any house, apartment or premises, licensed or unlicensed which is used or intended to be used for the reception, care and treatment of persons who on account of age, infirmity, chronic ill health or the effects of illness from which they are convalescing, require support, care and/or supervision. Aged Care Facility also incorporates short and long term respite, and day respite. For the purposes of this Agreement, “Aged Care Facility” also includes Youngcare Apartments operated by Wesley Mission Brisbane.”

[68] Clause 3.1 of the 2013 Nursing Agreement provides that it comprehensively regulates the terms and conditions of employment of employees to whom it applies and operates to the exclusion of any other industrial instruments, award or notional agreements preserving State awards.

5.1.2 Classification definitions

[69] The classification definitions for employees to whom the 2013 Nursing Agreement applies are found in Schedule 3, Classification Statements.The classification levels for AINs range from Level 1 to Level 3 and are as follows:

“Assistant in Nursing Level 1

An employee at this level shall perform a range of tasks as delegated or assigned and shall have obtained proficiency necessary to perform work at this level.

An employee at this level is required to:

(a) Exercise discretion and judgement within their level of skill and training;
(b) Attend training as directed;
(c) Work in collaboration with the care team under direct or indirect supervision of a Registered Nurse
(d) Demonstrate an understanding of required standards and actively participate in the implementation of those standards;
(e) Active involvement in continuous improvement.

Indicative tasks/skills of this level may include but not be limited to the following:

(a) Assist in the provision of quality nursing care under supervision and direction as outlined in the care plan and other relevant documentation;
(b) Provide information relevant to the development of care plans;
(c) Report promptly any observed changes or concerns in resident's health status;
(d) Complete documentation as required;
(e) Assist with medications on the request of the client/resident within a delegated or assigned range of duties, subject to legislative requirements;
(f) Assist with the orientation of staff as appropriate;
(g) Participate in workplace health and safety, infection control and training as required.'

Assistant in Nursing Level 2

An employee at this level shall perform work at a level above that of an Assistant in Nursing Level 1 and shall have obtained proficiency and qualifications to perform work at this level.

An employee at this level, in addition to Assistant in Nursing Level 1 is required to:
Have obtained a Level III Certificate in Aged Care or equivalent, and 12 calendar months relevant industry experience;

Indicative tasks/skills of this level are as provided in Assistant in Nursing Level 1.'

Assistant in Nursing Level 3

Employees appointed to this level shall perform work at a level above that of an Assistant in Nursing Level 2 and shall have gained proficiency, further qualifications and/or training to perform work at this level.

Employees at this level are required to:

(a) Have obtained a Level III Certificate in Aged Care or equivalent, relevant qualification and demonstrated significant industry experience.

Indicative responsibilities at this level, in addition to Assistant in Nursing Level 2, may include, but are not limited to:

With appropriate training and skills, being appointed to a role with special responsibilities for one or more of the following:

• Peer Preceptorship
• Continence Care
• Palliative Care
• Workplace Health and Safety
• Quality”

[70] The focus of the 2013 Nursing Agreement is on nursing and the provision of nursing care. This is apparent from the Objectives of the Agreement which refers to Codes and Guidelines established by the Nursing and Midwifery Board of Australia and to the achievement of quality clinical outcomes. The classification definitions refer to AINs performing delegated or assigned tasks. There is reference to working in collaboration with the care team under direct or indirect supervision of a Registered Nurse and assisting in the provision of quality nursing care under supervision and direction as outlined in the care plan and relevant documentation. Reference is also made to providing information relevant to the development of care plans and reporting changes or concerns in residents’ health status.

[71] In addition to classification definitions for AINs, the 2013 Nursing Agreement also contains classification definitions for Enrolled Nurses, Registered Nurses and Nursing Practitioner Candidates for whom a variety of levels are prescribed. The classification definition for the level Registered Nurse Level 1 is as follows:

“Registered Nurse Level 1

An employee appointed to this level shall perform work above and beyond the skills of an Enrolled Nurse Level 2 and shall have obtained proficiency and qualifications necessary to perform work at this level. A Registered Nurse will follow the responsibilities, duties, standards and scope of practice that applies to nursing. A Registered Nurse Level 1 will maintain professional boundaries, assume accountability and responsibility for their actions, and always act in accordance with legislation, professional guidelines and common law affecting nursing practice.”

An employee at this level is required to:

a) Hold and maintain valid registration as a Registered Nurse;

b) Work in accordance with the Registration Standards, Codes and Guidelines required by the NMBA for the Registered Nurse;

c) Work under minimal supervision and will supervise and be responsible for lower level employees;

d) Exercise discretion and decision making/responsibility within their level of skill and training;

e) Act to report and rectify unsafe practice and/or unprofessional conduct

f) Work within a team;

g) Provide and maintain documentation as required;

h) Provide training and assessment.

Indicative tasks/skills in addition to Enrolled Nurse Level 2 may include but not limited to:

a) Promote a consultative and collaborative approach to resident/client care planning including participation by the client and/or the client’s representative;

b) Ensure resident care is assessed, planned, documented and implemented, and progress is evaluated in accordance with the established model of care;

c) Develop, implement, monitor and review care plans to meet residents’/clients’ health care needs and to promote quality of life;

d) Ensure reported changes or concerns in client conditions are acted upon appropriately;

e) Provide nursing care within the scope of clinical practice;

f) Monitor and delegate care given by other staff in accordance with scope of practice and organisational policy;

g) Assist residents/clients to participate in programs and recreational related activities;

h) Assist with orientation of new staff as required;

i) Assist in relevant research;

j) Assist in ensuring the service meets all accreditation standards;

k) Participate in workplace health and safety, infection control and training as required;

l) Undertaking other duties as required/directed as service needs change or grow (consistent with the above, within the scope of practice and any other legal or industrial obligations).”

[72] Each level above Registered Nurse Level 1 refers to employees being required to work at a level above and beyond Level 1 and to having obtained proficiency and qualification necessary to do so. The classification definition for the classification of Enrolled Nurse Level 1 is as follows. As is the case for the Registered Nurse classification definitions, the definition for Enrolled Nurse Level 2 requires employees at that level to perform work above and beyond the skills of an Enrolled Nurse Level 1:

“Enrolled Nurse Level 1

An employee appointed to this level shall perform work above and beyond the skills of an Assistant Nurse and shall have obtained proficiency and qualifications necessary to perform work as an Enrolled Nurse. And Enrolled Nurse will follow the responsibilities, duties, standards and scope of practice that applies to enrolled nursing. An Enrolled Nurse Level 1 will maintain professional boundaries, assume accountability and responsibility for their actions and always act in accordance with legislation, professional guidelines and common law affecting nursing practice.

An employee at this level is required to:

a) Hold and maintain valid registration as an Enrolled Nurse;

b) Work in accordance with the Registration Standards, Codes and Guidelines required by the NMBA for the Enrolled Nurse;

c) Work in accordance with any notations within their registration;

d) Provide nursing care under the direct or indirect supervision of a Registered Nurse;

e) Exercise discretion and decision making/responsibility within their level of skill and training;

f) Provide on the job guidance as directed and within level of competency;

g) Demonstrate the effective application of required standards.

Indicative tasks/skills of this level, in addition to Assistant Nurse Level 3, may include but not limited to:

a) Contribute to the development and evaluation of residents’/clients’ care plans and carry out those care plans as directed by the RN;

b) Provide planned nursing care within the scope of clinical practice;

c) Provide and monitor personal care to residents/clients in accordance with scope of practice and organisational policy;

d) Assist residents/clients to participate in programs, daily living and recreational related activities;

e) Observe and report promptly any changes or concerns in residents’/clients’ health, well being or behaviour to the RN;

f) Work under minimal professional supervision and will provide guidance and support to lower level employees;

g) Assisting with the efficient allocation of resources as directed by the RN;

h) Undertake other duties as required/directed as service needs change or grow (consistent with the above, within the scope of practice and any other legal or industrial obligations).”

[73] The only reference to personal care in the 2013 Nursing Agreement classification definitions is in the definition for Enrolled Nurse and there is no such reference in the definition for Assistant in Nursing. The only references to assisting residents with daily living activities are in the definitions for Registered and Enrolled Nurse. Further, the reference to personal care is to personal care in accordance with scope of practice. That Assistant in Nursing is a nursing role is apparent from the fact that the level above the highest level of Assistant Nurse, that of Enrolled Nurse Level 1 is defined as “an employee who works above the level of an Assistant In Nursing”.

[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.

5.2 The 2008 Care Agreement

5.2.1 Application

[75] The 2008 Care Agreement came into existence as a result of an application to vary a collective State agreement. By an Order made on 25 February 2009, Senior Deputy Richards extended and varied the then Blue Care - WMAHC – AWU – LHMU Certified Agreement (No. 5) 2005 (the 2005 Care Agreement) which was a preserved collective State agreement under clause 10 of Schedule 8 of the Workplace Relations Act 1996. The title of the 2005 Care Agreement was amended so that it became the Blue Care - WMAHC – AWU – LHMU Certified Agreement (No. 5) 2005 (as varied and extended 2008) (referred to in this Decision as the 2008 Care Agreement). The 2008 Care Agreement reached its nominal expiry date on 31 December 2011, but remains in effect as a collective Division 2B State Employment Agreement (a notional Federal instrument). 32 The application provisions of the 2005 Care Agreement were not varied by the Order made by Senior Deputy President Richards in 2009.

[76] The provisions governing the application of the 2008 Care Agreement (and previously the 2005 Care Agreement) operate by reference to Awards of the Queensland Commission. The Awards of the Queensland Commission referred to in the application provisions of the 2008 Care Agreement ceased operation after the 2008 Care Agreement came into existence. Notwithstanding this, the Awards of the Queensland Commission are set out in the application provisions of the 2008 Care Agreement and it is necessary to deal with them in some detail.

[77] Clause 1.3.1 of the 2008 Care Agreement deals with the application of the Agreement and provides as follows:

“This Agreement shall apply to the Uniting Church in Australia Property Trust (Q), t/a Blue Care and West Moreton Aged Home Council Inc, their workplaces as set out in Appendix 1, and subsequent aged care facilities established as a result of the rebuilding program due to certification of the aged care facilities outlined, for employees who but for this agreement would be covered by the Awards (Appendix 2) hereto, and The Australian Workers Union of Employees Queensland and The Liquor, Hospitality and Miscellaneous Union, Queensland Branch Union of Employees.”

[78] Appendix 1 is headed “List of Workplaces Regional Break up of Blue Care Agencies Physical Addresses and WMAHC Physical Addresses”. Appendix 1 lists the names and addresses of workplaces to which the 2008 Care Agreement applied at the point it was made. There is a definition of “aged care facility” in clause 3.3.2 of the 2008 Care Agreement in the following terms:

“‘Aged Care Facility’ shall mean any house, apartment or premises, licensed or unlicensed, which is used for or intended to be used for the reception, care and treatment of persons who on account of age, infirmity, chronic ill health or the effects of illness from which they are convalescent, require support and care and/or supervision. Aged Care Facility also incorporates short and long term respite and day respite.”

[79] Appendix 2 of the 2008 Care Agreement is headed: “LIST OF PREVIOUS AGREEMENTS AND AWARDS” and in addition to nine previous iterations of the 2008 Care Agreement, lists the following awards:

• Disability Support Workers Award – State 2003



• Diversional Therapists Award – State 2003;



• Private Hospital and Nursing Home Industry Award – State 2003;



• Award for Accommodation and Care Service Employees in Homes for the Aged (Excluding SE Queensland) 2004;



• Award for Accommodation and Care Service Employees in Homes for the Aged (SE Queensland) 2004;



• Motor Drivers’ Etc. Award Southern Division 2003; and



• Blue Care Enterprise Award – State 2004.

[80] Clause 3.1 of the 2008 Care Agreement deals with interpretation. Clause 3.1.1 provides as follows:

“The Awards which apply to employees to whom this agreement applies, continue to apply, except to the extent of any inconsistency between this Agreement and the Award. Where there is any inconsistency between this Agreement and the Award, this agreement will have precedence.”

[81] Clause 3.1.2 of the 2008 Care Agreement lists nine previous agreements (earlier iterations of the 2008 Care Agreement) which are said to have been replaced by the 2008 Care Agreement subject to clause 3.1.3 which provides that:

“Unless and except where the terms of this agreement specifically vary the terms of any of the aforementioned agreements, the provisions of the aforementioned agreements are to be incorporated in and form part of this agreement.”

[82] Relevantly, the Blue Care Enterprise Award – State 2004, which came into operation on 7 June 2004, completely superseded all other Awards referred to in Schedule 2 of the 2008 Care Agreement, other than the Private Hospitals and Nursing Homes Industry Award – State 2003, which was superseded only to the extent that it relates to Blue Care and its employees in Nursing Homes.

[83] It is not apparent why those superseded awards continued to be listed in Appendix 2 of the 2008 Care Agreement but this may have been necessary because the Blue Care Enterprise Award - State 2004 appears to have applied only to Blue Care and not to Wesley Mission so that the application of the 2008 Care Agreement to employees of Wesley Mission continued to be governed by the terms of the Awards listed in Appendix 2, other than the Blue Care Enterprise Award – State 2004.

[84] The parties did not deal with this issue in their submissions and in any event, given the current status of the Queensland Awards in Appendix 2 of the 2008 Care Agreement, and the effect of those Awards, nothing turns on it. The current status of the Queensland Awards referred to in Appendix 2 of the 2008 Care Agreement is that they are Division 2B State Awards and by virtue of Items 2, 3 and 41 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act) ceased to have effect from 31 December 2010. The exception to this is the Blue Care Enterprise Award – State 2004 which continued to have effect as an Enterprise Award from 1 January 2011 to 31 December 2013, when it terminated in accordance with the provisions of Schedule 6, item 9(4) of the Transitional Act.

[85] The effect of clause 13 and Appendix 1 of the 2008 Care Agreement prior to and after its variation and extension, was that the Agreement applied to Blue Care and Wesley Mission and their workplaces as set out in Appendix 1 and subsequent aged care facilities established by Blue Care and Wesley Mission, with respect to employees who, but for the Agreement would be covered by the Blue Care Enterprise Award - State 2004 (that Award having replaced the other Awards in Appendix 2 of the 2008 Care Agreement with effect from 2004 at least with respect to Blue Care and its employees).

[86] Because of the way that the application clause of the 2008 Care Agreement is framed, it is necessary to consider a number of the Queensland Awards referred to in the 2008 Care Agreement and to determine whether, notwithstanding that those Awards no longer operate, they continue to apply for the purposes of determining the application of the 2008 Care Agreement.

5.2.2 The Blue Care Enterprise Award – State 2004
[87] By virtue of clause 1.4, from 7 June 2004 when it took effect, the Blue Care Enterprise Award - State 2004 applied throughout Queensland to all persons employed by the Uniting Church in Australia Property Trust (Q.) trading as Blue Care who were engaged in the callings and classifications set out in that Award, employed in connection with a retirement village, garden settlement or any other residential accommodation for aged persons in a hostel, nursing home, retirement village, garden settlement or any other residential accommodation facility (including a client’s own residence); respite centre and short and long term respite and day respite care. The Blue Care Enterprise Award - State 2004 also applied where care was co-ordinated from a hostel or aged care facility as outlined in the Coverage clause.

[88] The exemptions from the Blue Care Enterprise Award – State 2004 are set out in clause 1.5.1 and relevantly include:

• nursing employees;



• employees who provide personal care services in nursing homes;



• employees covered by the Nurses Aged Care Award – State 2005 who shall be deemed to include employees who do not possess an Associate Diploma or higher qualification in diversional therapy or similar and who develop and/or provide nursing and therapeutic activities for residents and whose work is immediately supervised by a registered nurse.

[89] For the purpose of this exclusion, the Blue Care Enterprise Award – State 2004 included a definition of “Nursing Employees” as employees engaged in the callings and classifications set out in the Nurses Aged Care Award – State 2005 at the commencement date of the Blue Care Enterprise Award 2004 - 7 June 2004. The terms of the Nurses Aged Care Award – State 2005 are dealt with below.

[90] The classification levels in the Blue Care Enterprise Award – State 2004 included a range from level 1 to level 6 and contained references to a number of indicative tasks undertaken by employees including the following:

LEVEL 1

• cleaning, tidying and general assistant of kitchen food preparation, customer service areas, including the cleaning of equipment, crockery and general utensils;



• general grounds duties;



• assembly and preparation of ingredients for cooking;



• handling, storing and distributing goods, including pantry items and linen;



• setting and/or wiping down tables, removing food plates, emptying ashtrays and picking up glasses;



• assisting employees who are cooking;



• general cleaning duties;



• providing general assistance to employees of a higher grade but not including cooking and by performing simple/repetitive tasks to clients;



• laundry and/or linen duties which may include minor repairs to linen or clothing such as buttons, zips, seams, and working with flat materials;



• the collection and/or delivery of guests personal dry-cleaning and laundry, linen and associated materials to and from accommodation areas;

LEVEL 2

• receiving, storing and distributing goods;



• servicing accommodation areas and cleaning thereof;



• tray service to clients rooms;



• general receipting of money;



• basic keyboard skills;



• operate mobile lifting equipment and performing general maintenance on such equipment;



• security duties;



• driving a passenger vehicle or courtesy bus; (ix) performing activities with clients;



• providing butler service, basic food and beverage services with personalised guest services;



• assisting in dry-cleaning process;



• cleaning duties using specialised equipment and chemicals;



• works under limited supervision while assisting clients with participation in programs;



• Handyperson duties including the performance of routine repair work and maintenance in and about the employer's and/or clients premises and other general duties such as pool, garden etc.;



• grounds duties using specialised equipment and fertilisers;



• preparing and/or cooking a limited range of basic food items such as breakfasts, grill snacks, preparing salads, and preparing meals in a community setting;



• provision of personal care services;



• conduct general diversional therapy programs for groups and individuals.

LEVEL 3

• assisting in the training, co-ordination and supervision of employees of lower grades;



• providing butler services; basic food and beverage services with personalised client services;



• has a knowledge of health and safety in relation to tasks performed;



• provision of personal care services consistent with the qualification provided by an AQF Certificate III in Community Services (Aged Care Work);



• coordinate, organise and conduct diversional therapy programs for groups and individuals.

LEVEL 6

• oversee development and review program area;



• plan, develop and implement workplace documentation;



• identify and cater for complex needs of clients, volunteers and other employees;



• plan, develop and co-ordinate program area.

5.2.3 The Nurses Aged Care Award – State
[91] To understand the exclusions from the Blue Care Enterprise Award - State 2004 and the application provisions of the 2008 Care Agreement it is necessary to consider the application and classifications in the Nurses Aged Care Award – State.

[92] By virtue of clause 1.3, the Nurses Aged Care Award – State applied to nursing employees in the private sector, employed in the industry of aged care including aged care residential facilities such as nursing homes, private hospitals, hostels, retirement villages and aged care respite centres in the State of Queensland.

[93] The Nurses Aged Care Award – State at clause 1.6.2 defined places of employment as follows:

“1.6.2 Places of employment

(a) "Aged Care Residential Facility" means a facility for the care of aged people providing residential care as defined by the Aged Care Act 1997 (Cth).

(b) "Nursing Home" means an establishment pursuant to the Health Act 1937.

(c) "Hostel" means an aged care facility as defined by the Health Act 1937 provided that such facility need not be licensed under that Act.

(d) "Retirement Village" means a premises not being a Hostel or Nursing Home as previously defined, conducted or promoted as suitable for the use (exclusively or primarily) by elderly or retired persons pursuant to the Retirement Villages Act 1999.

(e) "Respite Care" means care not being an integral part of an Aged Care Residential Facility, Retirement Village or private hospital where care is provided on a daily or occasional basis and which may also provide therapeutic facilities.”

[94] In addition to definitions for other Registered and Enrolled Nurses, the Nurses Aged Care Award – State 2005 contained a definition of “Assistant Nurse” in the following terms:

“‘Assistant Nurse’ means an employee who is solely required to assist in the performance of nursing duties under the supervision of a Registered Nurse or Enrolled Nurse”

[95] The Nurses Aged Care Award – State contains the following classification levels in relation to Assistant Nurses:

“1.1 Entry Level

1.1.1 An employee will be engaged at this level for a period of up to 3 months. The employee has no experience or qualification in any functions/activities associated with employment in the aged care industry and undertakes training in basic workplace practices and procedures (e.g. workplace health and safety, work and document procedures and quality control/assurance).
1.1.2 An employee at this level performs routine duties to their level of their training in the age care industry which are simple repetitive tasks within the range of delegated or assigned. The employee would exercise minimal judgement and be working under Supervision of a Registered or Enrolled Nurse.
1.1.3 An employee remains at this level for a probationary period of up to 3 months. A successful completion of the probationary period is where the employee has achieved the competency/tasks required for this level.

2.1 Assistant Nurse Level 1

2.1.1 An employee at this level shall perform work above the skills of an Entry Level employee and shall have obtained proficiency necessary to perform work at this level.

2.1.2 An employee at this level is required to:
(a) exercise discretion and judgement within their level of skill and training;
(b) receive on or off the job training or has received training;
(c) work under direct or indirect Supervision;.
(d) demonstrate an understanding of standards required in the aged care industry and actively participate in the implementation of those standards;
(e) active involvement in, and contributes to, continuous improvement.

2.1.3 Indicative tasks/skills of this level, in addition to the Entry Level, may include but not be limited to the following:
(a) provide input on observation;
(b) record on standard structured pro forma;
(c) assist in delivery of nursing care under direct or indirect Supervision;
(d) assist with medications on the request of the client/resident within a delegated or assigned range of duties, subject to legislative requirements.

3.1 Assistant Nurse Level 2

3.1.1 An employee at this level shall perform work above the skills of a Level 1 employee and perform tasks and shall have obtained proficiency and qualifications to perform work at this level.

3.1.2 An employee at this level is required to:
(a) have obtained a Level III Certificate in Residential Age Care or equivalent;
(b) operate under direct or indirect Supervision;
(c) exercise discretion and judgement within their level of skill and training;
(d) demonstrate an understanding of standards required in the aged care industry;
(e) assist employees undertake structured training.

3.1.3 Indicative tasks/skills of this level, in addition to Level 1, may include but not be limited to:
(a) input into resident assessment;
(b) input into documentation using a variety of flow charts;
(c) input into orientation of staff;
(d) data collection;
(e) assist in delivery of nursing care under direct or indirect Supervision.

4.1 Assistant Nurse Level 3

4.1.1 An employee appointed to this level shall perform work above and beyond the skills of a Level 2 and shall have obtained proficiency and qualifications to perform work at this level.

4.1.2 An employee at this level is required to:
(a) have obtained a Level IV certificate in Residential Age Care or equivalent qualification or level of experience and competency;
(b) exercise discretion and decision making/responsibility within their level of skill and training;
(c) demonstrate the effective application of standards required in the age care Industry;
(d) provide on the job and In Service training as directed;
(e) work under direct or indirect supervision.
4.1.3 Indicative tasks/skills of this level, in addition to Level 2, may include but not limited to:
(a) team leader.” 33

5.2.4 The effect of Queensland Awards and exclusions on the application of the 2008 Care Agreement
[96] The effect of the exclusions on the basis of the coverage of Queensland Awards as detailed above, is that, at the point it was made and extended, the 2008 Care Agreement did not apply to nursing employees, persons who provided personal care services in nursing homes, and employees covered by the Nurses Aged Care Award – State, which included Assistant Nurses, being employees who were: “… solely required to assist in the performance of nursing duties under the supervision of a Registered Nurse or Enrolled Nurse”. As previously noted, the Awards of the Queensland Commission specified in the application clause of the 2008 Blue Care Agreement, have ceased to operate and no longer have effect in their own right.

[97] This raises the question of whether the 2008 Care Agreement should be construed so that those exclusions continue to apply, notwithstanding that the Queensland Awards on which they are based no longer operate. In my view, the 2008 Care Agreement should not be construed in that way. I do not accept that the framers of the 2008 Care Agreement intended that these exclusions would continue in the event that State Awards were varied or ceased to operate.

[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.

[99] The different treatment of the Awards and the Agreements in Appendix 2 is indicative that the parties to the 2008 Care Agreement, objectively, did not intend to preserve the operation or effect of the awards set out in Schedule 2 as at the date the 2008 Care Agreement was originally approved or when it was extended. Had the parties intended to incorporate the awards in the form that they were in at either or both of these points, they could have drafted a similar provision to clause 3.1.3. They have not done so.

[100] The parties have also included references in the 2008 Care Agreement to matters that are expected to change during the life of the Agreement. In clause 2.1.1 of the 2008 Care Agreement, the parties have included a commitment to be guided by the Residential Aged Care Standards and the Australian Council on Healthcare Standards, and those of any other accredited bodies and other quality standards. It is apparent from this provision that the parties have contemplated that those standards and the bodies that set them, may change over time. The concept of the Agreement applying in new circumstances is also apparent in the provisions of clause 1.3.1, which provides that the Agreement will apply to new facilities established as a result of certification.

[101] As a Full Court of the Federal Court held in Transport Workers Union of Australia v Coles Supermarkets Pty Ltd 34 industrial instruments may genuinely extend and apply to new fact circumstances. Given the fact that the Awards of the Queensland Commission have not been incorporated into the 2008 Care Agreement and absent a clear intention to the contrary, I am of the view that the correct construction of the 2008 Care Agreement is that the Agreement applies to employees covered Aged Care Award 2010 which replaced the Awards of the Queensland Commission referred to in the application provisions of the 2008 Care Agreement.

[102] If I am incorrect in reaching this conclusion then the fact that the Aged Care Award 2010 covers employees to whom the 2008 Care Agreement applies is a compelling contextual consideration in the construction of the 2008 Care Agreement.

5.2.5 Classification definitions in the 2008 Care Agreement

[103] The classification definitions in the 2008 Care Agreement including those for PCs - found at levels 2 and 3 – are set out in Appendix 4 of the Agreement as follows:

“Level 1

An employee at level one performs routine duties of a manual nature, exercising minimal judgement and performs simple, repetitive tasks. Work will be directly supervised but the employee may have discretion within procedures regarding the method of completing the task/duty.

An employee at this level may be receiving on or off the job training or may have received appropriate training.

Indicative tasks/skills of this level may include but not limited to:

i. cleaning, tidying and general assistant of kitchen food preparation, customer service areas, including the cleaning of equipment, crockery and general utensils;
ii. general grounds duties;
iii. assembly and preparation of ingredients for cooking;
iv. handling, storing and distributing goods, including pantry items and linen;
v. setting and/or wiping down tables, removing food plates, emptying ashtrays and picking up glasses;
vi. assisting employees who are cooking;
vii. general cleaning duties;
viii. providing general assistance to employees of a higher grade but not including cooking and by performing simple/repetitive tasks to clients;
ix. laundry and/or linen duties which may include minor repairs to linen or clothing such as buttons, zips, seams, and working with flat materials;
x. the collection and/or delivery of guests personal dry-cleaning and laundry, linen and associated materials to and from accommodation areas;
xi. Works under continuous supervision while assisting clients with participation in programs.
xii. 'Persons not otherwise provided for' shall mean any employee for which no specific classification exists in this Award and who has had more than three months service with the employer.

Level 2

An employee at this level may work independently under limited supervision and may be responsible for the supervision of other employees at lower levels. Tasks performed may require some theoretical knowledge and motor skills and work base communication skills. An employee at this level performs above and beyond the skills of Level 1.

Indicative tasks/skills of this level in addition to Level 1 may include but not limited to:

i. receiving, storing and distributing goods;
ii. servicing accommodation areas and cleaning thereof;
iii. tray service to clients/patients rooms;
iv. general receipting of money;
v. basic keyboard skills;
vi. operate mobile lifting equipment and performing general maintenance on such equipment;
vii. security duties;
viii. driving a passenger vehicle or courtesy bus;
ix. performing activities with clients;
x. providing butler service, basic food and beverage services with personalised guest services;
xi. assisting in dry-cleaning process;
xii. cleaning duties using specialised equipment and chemicals;
xiii. works under limited supervision while assisting clients with participation in programs;
xiv. 'Handyperson' shall mean a person who is not a tradesperson and whose duties include the performance of routine repair work and maintenance in and about the employer’s and/or clients premises and other general duties such as pool, garden etc.;
xv. grounds duties using specialised equipment and fertilisers;
xvi. preparing and/or cooking a limited range of basic food items such as breakfasts, grill snacks, preparing salads, and preparing meals in a community setting;
xvii. 'personal carer' shall mean one who is not a nurse who undertakes a range of duties that assists in the care of a client or resident.

Level 3

A position at this level is undertaking training or has the required skills equivalent to a Level 3 certificate in the field to enable the duties of the position to be carried out.

An employee at this level may work independently but under limited supervision and perform tasks which require applied theoretical knowledge, and motor skills and functional work base verbal and written communication skills. The employee could be responsible for the completion of the whole task within the prescribed standards.

Indicative tasks/skills of this level may include but not limited to:

i. undertaking general cooking duties, including a la carte cooking, baking, pastry cooking;
ii. undertaking general waiting duties of both food and/or beverages, including cleaning of kitchen equipment;
iii. receiving, storing and distributing goods;
iv. assisting in the training, co-ordination and supervision of employees of lower grades and/or volunteers;
v. major repair in linen and/or clothing including basic tailoring and major alterations and refitting;
vi. dry-cleaning;
vii. 'Handyperson' shall mean a person who is not a tradesperson and whose duties include the performance of repair work which requires some prior experience and be trade related, although trade qualifications are not required at this level;
viii. providing butler services; basic food and beverage services with personalised client/patient services;
ix. has a knowledge of health and safety in relation to tasks performed.
x. personal carer shall mean a person who is not a nurse who is multi-skilled and undertakes a range of duties that assist in the care of a client or resident where the position requires a Level 3 certificate.”

[104] 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 specified for AINs by the 2013 Nursing Agreement. The classification definitions are expressed inclusively so that the indicative tasks which may be required to be performed are not limited to those listed and can be performed in any combination. In addition to duties that assist in the care of a client or resident, the indicative tasks include: receiving, distributing and storing goods; cleaning including specialised cleaning; tray service to clients’/patients’ rooms; food and beverage services; clearing away crockery and the like after such services; assisting clients to participate in programs; cooking various food items including breakfasts, grill snacks, salads and preparing meals in addition to higher level cooking skills.

[105] It is also the case that the term “personal carer” has a plain meaning and encompasses tasks undertaken in relation to persons such as bathing, washing, applying lotions, grooming, dressing, applying continence aides and the like. The term also relates to the environment of persons being cared for and encompasses changing bed linen and cleaning that environment and the components it is made up of such as rooms, bathrooms, tables, chairs, crockery, cutlery, areas from which items are dispensed or in which they are stored, receptacles for used items and the like.

6. CONTEXT

6.1 History of disputation about AINs and PCs

6.1.1 The Churches of Christ Case

[106] In 2000, the President of the Industrial Court of Queensland, dealt with a dispute which was essentially about whether employees of Churches of Christ Queensland were covered by the Nurses Aged Care Interim Award - State or the Award for Accommodation and Care Services Employees for Aged Persons South Eastern Division (the Accommodation Award). 35It was necessary to determine this question in order to determine whether an agreement which relied on the “patronage” of the Accommodation Award applied to the employees concerned. The Accommodation Award is one of the Awards listed in the application provisions of the 2008 Care Agreement.

[107] The facts in the Churches of Christ Case, as set out in President Hall’s decision, were as follows: The employer operated an aged care facility comprised of studio apartments, a hostel and a nursing home. The hostel and the nursing home were contained within the same building but were conducted as distinct operations, regulated by different legislation. His Honour noted that legislative amendments meant that residents were permitted to age in place so that hostel residents could remain in hostels rather than move to nursing homes when they required higher levels of care, and persons requiring lower levels of care could move to nursing homes with a partner requiring a higher level of care.

[108] Essentially, Churches of Christ purported to integrate its facilities, and the roles of employees working in them. Enrolled Nurses and Assistants in Nursing employed in the former nursing home were designated as aged care workers and formed into teams. Under the proposal, Registered Nurses would no longer supervise but would act as consultants to the teams and staff would work over the whole area of what had previously been a nursing home and a hostel, but which would now be an integrated facility.

[109] Churches of Christ contended that the duties of employees formerly classified as Enrolled Nurses and Assistants in Nursing, both before and after the purported merging of the facilities, could also be described as the duties of a personal care attendant employed in a hostel and that employees could be classified as such under the Accommodation Award. In rejecting that proposition his Honour held that duties are coloured by the context in which they are performed, and that to visualise a personal care attendant under the Accommodation Award rendering services to high care residents subject to the supervision of a Registered Nurse, in premises designed and equipped to facilitate the rendering of care to high care residents, would be to visualise a hostel for aged persons which had made the transition to a nursing home.

[110] President Hall found that the changes had not in fact occurred, there had been no integration and that the facilities had continued to operate as a nursing home and a hostel. In relation to the contention that Assistants in Nursing were beyond the reach of the Nurses Aged Care Interim Award – State (which later became the Nurses Aged Care Award – State) because they were not solely engaged to perform nursing work but performed domestic duties as well, his Honour held that the domestic duties did not change the essential nature of the work performed by Assistants in Nursing, because: “Their services were rendered by way of assistance to and under the supervision, in some cases a physical and immediate supervision and in other cases an indirect supervision by way of a mandatory care plan, of a Registered Nurse”. The Nurses Aged Care Interim Award applied to nursing employees in industry named facilities (including nursing homes) and the Accommodation Award had no application in nursing homes.

[111] In those circumstances, it was irrelevant that Churches of Christ had rebadged the relevant employees or purported to merge the facilities in which they were working. In relation to the domestic duties such as serving food and washing up, his Honour found that notwithstanding the significant time spent on those duties by the employees in question, they were additional duties. Given the qualitative nature of the other duties performed by the employees and their significance in the care of residents, the change in duties did not justify the characterisation of the nursing home as a hostel. His Honour concluded that the Nurses Aged Care Interim Award - State had at all times applied to the employees in question.

6.1.2 The making of the Blue Care Enterprise Award – State 2004

[112] The issue of coverage for AINs and PCs arose when the Blue Care Enterprise Award - State 2004 was made. The application for the making of the Award was referred to a Full Bench of the Queensland Industrial Relations Commission (of which I was a member) after Commissioner Fisher who heard the matter at first instance (and who was also a member of that Full Bench) had concerns about the scope of the Blue Care Enterprise Award – State 2004. As that Full Bench then noted, even at that point, the matter had a long and tortuous history. All of the parties in the present proceedings were represented in the Full Bench proceedings in relation to the making of the Blue Care Enterprise Award – State 2004.

[113] The concerns which lead Commissioner Fisher to refer the matter to a Full Bench were related to the coverage of the Blue Care Enterprise Award - State 2004 with respect to personal care work in nursing homes. In particular, Commissioner Fisher noted that the parties had acknowledged that the QNU had coverage of personal care work in nursing homes, and that it would be desirable that this be reflected in the exemption clause in the Blue Care Enterprise Award – State 2004.

[114] The Full Bench refused to include a reference to “aged care facilities” in clause 1.4 of the Blue Care Enterprise Award – State 2004, and replaced that term with the term “hostels” to reflect the limitation in the coverage clauses of the Accommodation Award. The Full Bench noted that the Accommodation and Care Services Award did not apply to nursing homes and that the coverage of the AWU did not extend to personal care work in that setting. Accordingly the Full Bench decided that the inclusion of the reference to nursing homes in the coverage clause of the Blue Care Enterprise Award – State 2004 did not extend the coverage of the then ALHMWU and the AWU beyond that which they then held under the Accommodation Award, and reflected the coverage of those Unions with respect to classifications other than personal carers in nursing homes.

[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.

[424] There may be unfairness as a result of this. There may also be different philosophical positions about whether it is appropriate to combine nursing tasks with caring and domestic tasks. However, to apply these arguments to the interpretation of the Agreements, would involve “giving effect to some anteriorly derived notion of what would be fair or just” 442 or rewriting the Agreements to achieve what might be regarded as a fair or just outcome.443

[425] This is not a case about whether the model proposed by Blue Care is the best model for the delivery of care. The case is not about whether it is appropriate for employees to perform a combination of nursing duties and domestic duties. It is not relevant that consumer directed care is not currently a feature of residential aged care or that it may never be so. It is not determinative that Ms Scott and Ms Orreal (when she is classified as a PC) may be performing the same or substantially the same work as other employee working alongside them who are classified as AINs.

[426] There are reasons for that including that Blue Care has implemented industrial relations arrangements whereby employees who were employed as AINs retain that classification including in situations where they are transferred to new workplaces at the initiative of Blue Care. Those circumstances do not result in Ms Scott and Ms Orreal, and other employees performing the same or substantially the same work as Ms Scott and Ms Orreal being entitled to be classified as AINs. The fact that some AINs are performing domestic duties may mean that they are more appropriately classified as PCs but that for industrial relations reasons, Blue Care has maintained their classification.

[427] Blue Care is entitled to operate its business in a manner which it considers appropriate to deliver the services it has undertaken to deliver. It is not appropriate for the Commission to intervene in Blue Care’s right to manage its own business, unless some unjust or unreasonable demand is being placed on employees. For Blue Care to insist on paying and classifying employees under an agreement which does not properly apply to the work they are required to perform so that they are paid less than an agreement which does properly apply, would arguably be an unjust or unreasonable demand, such that the intervention of the Commission would be warranted.

[428] This is not such a case. Blue Care wants to operate its business on the basis that it employs PCs to perform a flexible role which include caring duties and other broader duties. It has made Agreements distinguishing between the role of AIN and PC and should be permitted to implement its employment arrangements under the terms of those Agreements.

[429] In the present case, I am unable to be satisfied that the QNU has 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”.

[430] In related proceedings Blue Care has applied for the approval of the 2013 Care Agreement. The QNU objects to the approval of that Agreement on a number of grounds which have as their basis the central issue in dispute in these proceedings. I have decided to approve the 2013 Care Agreement and to issue an approval decision concurrently with this Decision. My detailed reasons for deciding to approve the 2013 Care Agreement will be released in the near future.

DEPUTY PRESIDENT

 1   [2014] FWFB 7447.

 2 Ibid at [41].

 3 (1996) 66 IR 182 at 184.

 4   Amcor v Construction, Forestry, Mining and Energy Union (2005) CLR 241 at [96].

 5   Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 at [45] – [46].

 6   Layton v North Goonyella Coal Mines Pty Ltd [2007] AIRCFB 713 at [25] and [26]; Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387 at 389 at [9]; Health Services Union, Tasmania No 1. Branch v Liviende Inc [2013] FWC 6380 at [12]; Tucker v Digital Diagnostic Imaging Pty Ltd [2011] FWA 1767 at [19] – [22].

 7   [2014] FWCFB 5643.

 8   [2007] AIRCFB 713.

 9   [2011] FWA 1767.

 10 (2002) 122 IR 387.

 11   [2013] FWC 6830.

 12   [2014] FWCFB 5643.

 13   Statement of Rhonda Louise Orreal, dated 10/10/2013, Exhibit 1; Statement of Rhonda Louise Orreal, dated 4/12/2013, Exhibit 2.

 14   Statement of Glenis Rae Delmore, dated 15/10/2013, Exhibit 5; Statement of Glenis Rae Delmore, dated 4/12/2013, Exhibit 6.

 15   Statement of Olwyn Scott, dated 11/10/2013, Exhibit 7; Statement in response of Olwyn Scott, dated 5/12/2013, Exhibit 8.

 16   Statement of Alba Vignolo, dated 17/10/2013, Exhibit 12; Statement in response of Alba Vignolo, dated 4/12/2013, Exhibit 13.

 17   Statement of Ruth Morris, dated 10/10/2013, Exhibit 15; Statement in response of Ruth Morris, dated 4/12/2013, Exhibit 16.

 18   Statement of Bernadette O’Connor, dated 17/10/2013, Exhibit 21; Statement in response of Bernadette O’Connor, dated 4/12/2013, Exhibit 22.

 19   Statements of Ms Semple that were made in relation to a number of matters before the Commission were tendered as evidence in this proceeding; Statement of Veronica Semple, dated 14/7/2014, Exibit 28; Statement of Veronica Therese Semple in matter AG2014/4103, dated 30/4/2014, Exhibit 29; Affidavit of Veronica Therese Semple in matter B2013/1546, dated 16/12/2013, Exhibit 44.

 20   Statement of Alan James Shepherd, dated 16/10/2013, Exhibit 45; Statement in response of Alan James Shepherd, dated 4/12/2013, Exhibit 46.

 21   Statement of Delwyn Joyce Martin, dated 24/11/2014, Exhibit 47.

 22   Statutory Declaration of Lisa Guiver, dated 20/11/2013, Exhibit 48.

 23   Statutory Declaration of Glenys Webby, dated 20/11/2013, Exhibit 49.

 24   Statutory Declaration of Kevin Davy, dated 20/11/2013, Exhibit 50.

 25   Statutory Declaration of Eleanor Hanhiniemi, dated 19/11/2013, Exhibit 51.

 26   Statutory Declaration of Jacqueline Ann Clark, dated 20/11/2013, Exhibit 52.

 27   Statutory Declaration of Carmel Freeman, dated 19/11/2013, Exhibit 53.

 28   Statutory Declaration of Jane Suller, dated 19/11/2013, Exhibit 54.

 29   Statutory Declaration of Jill Wiese, dated 19/11/2013, Exhibit 55.

 30   Statutory Declaration of Wendy Russell, dated 20/11/13, Exhibit 56.

 31   Statutory Declaration of Gerri Donaldson, dated 20/11/2013, Exhibit 57.

 32   Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) items 2 and 41 of Schedule 3A.

 33   Nurses’ Aged Care Award – State 2005 [AN140193], Schedule 2.

 34 [2014] FCAFC 148.

 35   Queensland Nurses Union of Employees AND Churches of Christ in Queensland t/a Churches of Christ Care (No. C21 of 1999); and Churches of Christ in Queensland t/a Churches of Christ Care AND Queensland Nurses Union of Employees (No. C29 of 1999) 9 June 2000.

 36   Australian Nursing Federation – Print T4652,Decision of Senior Deputy President Williams, Melbourne, 19 December 2000.

 37   Australian Nursing Federation – re alteration to eligibility rules – T4652 [2000] AIRC 715 (22 December 2000).

 38   Exhibit 35.

 39   PN3232.

 40   Exhibit 21, Statement of Bernadette O’Connor dated 17 October 2013 at [3], [4], [5], [6].

 41   Exhibit 23

 42   Exhibit 29, Statement of Veronica Semple dated 30 July 2014 at [1] and [2].

 43   PN3151 - PN3155.

 44   PN3174 - PN3180.

 45   PN3180.

 46   Exhibit 35.

 47   PN3181 - PN3182.

 48   PN3185- PN3192.

 49   PN3194 - PN3196.

 50   Exhibit 44, Affidavit of Veronica Semple sworn 16 December 2013

 51   Exhibit 44, VS1.

 52 Exhibit 44, Affidavit of Veronica Semple sworn 16 December 2013 at [3], [4], and [5].

 53   Exhibit 44, Affidavit of Veronica Semple sworn 16 December 2013 at [6], [7] and [8].

 54   Exhibit 44, Affidavit of Veronica Semple sworn 16 December 2013 at [12] and [13] Annexure “VS-5”.

 55   Exhibit 44 Annexure “VS-6”.

 56   Exhibit 44 Annexure “VS-7”.

 57   Exhibit 44 Annexure “VS-13”.

 58   Exhibit 44 Annexure “VS-15”.

 59   Exhibit 44 Annexure “VS-18”.

 60   Exhibit 44 Annexure “VS-19”.

 61   Exhibit 44 Annexure “VS-20”.

 62   Exhibit 24.

 63   PN2935 - PN2936.

 64   PN2940.

 65   PN3125-PN3150.

 66   PN3370.

 67   PN3372.

 68   PN3197 - PN3201.

 69   PN3209- PN3211.

 70   PN3228 - PN3229.

 71   PN3214- PN3220.

 72   PN3221.

 73   PN3282 - PN3287.

 74   PN3287 - PN3288.

 75   PN3352 - PN3354.

 76   Exhibit 44, Affidavit of Veronica Semple sworn 16 December 2013 at [52] and [53].

 77 Exhibit 44, Affidavit of Veronica Semple sworn 16 December 2013 at [54].

 78   PN3026–PN3030; PN3156–PN3157; PN3200; PN3312–PN3320; Exhibit 41.

 79   PN3181-PN3196; PN3232.

 80   PN3181-PN3196; PN3232.

 81   PN3199-,PN3228, Exhibit 36, Exhibit 37.

 82   Exhibit 23.

 83   Exhibits 25, 26 and 27.

 84   PN3026–PN3047; PN3413.

 85   Exhibit 31 and 32.

 86   Exhibit 32.

 87   Exhibits 33 and 34.

 88   PN3116–PN3123; PN3163–PN3291; PN3305–PN3354.

 89   PN3181-PN3196; PN3232.

 90 (1982) 147 CLR 337, 352.

 91   See Shop Distributive and Allied Employees’ Association v Woolworths Ltd (2006) 151 FCR 513, 520 at [31] (Gray J), citing Merchant Service Guild of Australia v Sydney Steam Collier Owners and Coal Stevedores Association (1958) 1 FLR 248, 251 (Spicer CJ), 254 (Dunphy J) and 257 (Morgan J); cf Printing and Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444, 452 – 453.

 92   See Shop Distributive and Allied Employees’ Association v Woolworths Ltd (2006) 151 FCR 513, 520 (Gray J), quoted in Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at [39] (Tracey J).

 93   Bland v CEVA Logistics (Australia) Pty Ltd (2011) 213 IR 418 , 429 at [42]-[43] (Senior Deputy President O'Callaghan and Senior Deputy President Kaufman).

 94   See for example – Exhibits 37 and 38.

 95   See for example PN2975-PN2981, PN3118, PN3288, PN3352.

 96   Fair Work Act 2009 (Cth) s 186(2).

 97   Ibid ss 173, 180, 181, 182, 188.

 98   Galintel Rolling Mills Pty Ltd T/A The Graham Group (2011) 214 IR 258, 265 at [36]; quoted in Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union (2012) 227 IR 134, 151 at [79].

 99   Balfours Bakery Pty Ltd [2011] FWA 7397 at [23].

 100   Ibid.

 101   MFCT Pty Ltd as trustee for Mildura Fruit Company Trust T/A Mildura Fruit Company (MFC) [2011] FWA 2024 at [26] to [28].

 102   Fair Work Act 2009 (Cth) Part 2-4, Division 4, Subdivision B; see National Tertiary Education Industry Union v Monash University (2004) 134 IR 284, 295 (Williams SDP and Tolley C); Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union (2012) 227 IR 134, 153 at [87] (Senior Deputy President Watson and Commissioner Gooley).

 103   See for example Swinburne University of Technology, Academic and General Staff Enterprise Agreement 2014 [2014] FWCFB 9023 at [38]-[40].

 104   [2009] AIRCFB 345.

 105 Ibid at [152].

 106   Exhibit 49, Statutory Declaration of Glenys Webby at [10]–[11].

 107 Exhibit 49, Statutory Declaration of Glenys Webby at [10].

 108 Exhibit 49, Statutory Declaration of Glenys Webby at [11].

 109   Aged Care (Living Longer Living Better Act) 2013 (Cth); see, for relevant discussion, Exhibit 49, Statutory Declaration of Glenys Webby at [13]; Exhibit 50, Statutory Declaration of Kevin Davy at [6].

 110   Aged Care (Living Longer Living Better Act) 2013 (Cth) Schedule 3, Part 1.

 111   See for example, Aged Care (Living Longer Living Better Act) 2013 (Cth) Schedule 1, Part 1, item 4(2)(c), Schedule 1, Part 1, item 127.

 112   The Explanatory Memorandum to the LLLB Act states that 'this enables anyone assessed as needing permanent residential care to access any residential care service that meets his or her needs.'

 113 Exhibit 57, Statutory Declaration of Gerri Donaldson at [7].

 114   Which commenced on 28 June 2013.

 115   Which commenced on 1 August 2013.

 116 Exhibit 49, Statutory Declaration of Glenys Webby at [16].

 117   See for example Statutory Declaration of Cathy Thomas at [6] and [20]; Statutory Declaration of Glenys Webby at [14]-[17] –[31]-[33] , PN4355-4357; PN4699, PN4703-PN4709; PN6215-6217; PN6342-6346; PN63888-6395.

 118   Exhibit 45, Statement of Alan James Shepherd dated 16 October 2013 at [1], [2], [3] and [4].

 119   Exhibit 45, Statement of Alan James Shepherd dated 16 October 2013 at [16], [17], [18], [19] and [20].

 120   Exhibit 45, Statement of Alan James Shepherd dated 16 October 2013 at [21] and [22].

 121 Exhibit 45, Statement of Alan James Shepherd dated 16 October 2013 at [23].

 122 Exhibit 45, Statement of Alan James Shepherd dated 16 October 2013 at [24].

 123   PN4355 - PN4374.

 124 Exhibit 45, Statement of Alan James Shepherd dated 16 October 2013 at [8].

 125 Exhibit 45, Statement of Alan James Shepherd dated 16 October 2013 at [9], [10], [11], [12], [13], and [14].

 126 Exhibit 45, Statement of Alan James Shepherd dated 16 October 2013 at [15].

 127   Exhibit 45, Statement of Alan James Shepherd dated 16 October 2013 at [25], [26] and [27].

 128 Exhibit 45, Statement of Alan James Shepherd dated 16 October 2013 at [28].

 129   PN3597 - PN3609.

 130   PN3634 - PN3638.

 131   PN3639 - PN3647.

 132   PN3648 - PN3650.

 133   PN3651 - PN3654.

 134   PN3782 - PN3783.

 135   PN3740 - PN3756.

 136   PN3768 - PN3771.

 137   PN3655- PN3658.

 138   PN3659-PN3660.

 139   PN3361 - PN3662.

 140   PN3663 - PN3665.

 141   PN3667 - PN3675.

 142   PN3782 - PN3783.

 143 Exhibit 51, Statutory Declaration of Eleanor Hanhiniemi dated 19 November 2013 at [1].

 144 Exhibit 51, Statutory Declaration of Eleanor Hanhiniemi dated 19 November 2013 at [20].

 145 Exhibit 51, Statutory Declaration of Eleanor Hanhiniemi dated 19 November 2013 at [25].

 146 Exhibit 51, Statutory Declaration of Eleanor Hanhiniemi dated 19 November 2013 at [38].

 147 Exhibit 51, Statutory Declaration of Eleanor Hanhiniemi dated 19 November 2013 at [38].

 148   Exhibit 48, Statutory Declaration of Lisa Guiver dated 20 November 2013 at [21], [22] and [23].

 149 Exhibit 48, Statutory Declaration of Lisa Guiver dated 20 November 2013 at [24].

 150   PN4449 - PN4461.

 151 Exhibit 49, Statutory Declaration of Glenys Webby dated 20 November 2013 at [25].

 152 Exhibit 49, Statutory Declaration of Glenys Webby dated 20 November 2013 at [34].

 153 Exhibit 48, Statutory Declaration of Lisa Guiver dated 20 November 2013 at [18] and [19]; Exhibit 49, Statutory Declaration of Glenys Webby dated 20 November 2013 at [38].

 154   PN1197 - PN1216; Exhibit 10.

 155   PN5870.

 156   PN4131 - PN4132; PN4408; PN5535; PN5636; PN5995; PN6225; PN6352.

 157   PN4579 - PN4580; PN4806 - PN4808.

 158   PNPN3970; PN6218 - PN6221.

 159   PN3970; PN4803 - PN4804; PN5167.

 160 Exhibit 58, Statutory Declaration of Cathy Thomas at [9].

 161   Exhibit 58, Statutory Declaration of Cathy Thomas at [6], Exhibit 57, Statutory Declaration of Gerri Donaldson at [16] [20], [23].

 162 Exhibit 49, Statutory Declaration of Glenys Webby at [34] [38]; Exhibit 48, Statutory Declaration of Lisa Guiver at [19]; Exhibit 56, Statutory Declaration of Wendy Russell at [11] [12], [14]; Exhibit 58, Statutory Declaration of Cathy Thomas at [8] [11]; Exhibit 57, Statutory Declaration of Gerri Donaldson at [25].

 163   Exhibit 49, Statutory declaration of Glenys Webby at [32] [33].

 164   PN4552.

 165   PN5637.

 166   Exhibit 53, Statutory Declaration of Carmel Freeman at [9] [10].

 167   PN5871.

 168   PN5870.

 169 Exhibit 54, Statutory Declaration of Jane Suller dated 19 November 2013 at [27].

 170 Exhibit 54, Statutory Declaration of Jane Suller dated 19 November 2013 at [14].

 171   PN5995.

 172 Exhibit 55, Statutory Declaration of Jill Wiese at [18].

 173   Exhibit 50, Statutory Declaration of Kevin Davy at [16] [18].

 174   PN4224 - PN4232.

 175   PN4233 - PN4237.

 176   PN4238 - PN4240.

 177   PN4241 - PN4243.

 178   PN4244 - PN4246.

 179   PN4260 - PN4261.

 180   PN4248 - PN4249.

 181   PN4250.

 182 Exhibit 56, Statutory Declaration of Wendy Russell dated 20 November 2013 at [6].

 183   PN6213 - PN6216.

 184   Exhibit 56, Statutory Declaration of Wendy Russell dated 20 November 2013 at [11] and [12].

 185 Exhibit 57, Statutory Declaration of Gerri Donaldson dated 20 November 2013 at [1].

 186 Exhibit 57, Statutory Declaration of Gerri Donaldson dated 20 November 2013 at [25].

 187 Exhibit 57, Statutory Declaration of Gerri Donaldson dated 20 November 2013 at [27].

 188   Exhibit 1, Statement of Rhonda Louise Orreal dated 10 October 2013 at ‘RO 3’ and ‘RO 4’.

 189 Exhibit 1, Statement of Rhonda Louise Orreal dated 10 October 2013 at [5].

 190 Exhibit 1, Statement of Rhonda Louise Orreal dated 10 October 2013 at [6].

 191 Exhibit 1, Statement of Rhonda Louise Orreal dated 10 October 2013 at [7].

 192 Exhibit 1, Statement of Rhonda Louise Orreal dated 10 October 2013 at [8].

 193   Exhibit 1, Statement of Rhonda Louise Orreal dated 10 October 2013 at [9] and [10].

 194 Exhibit 1, Statement of Rhonda Louise Orreal dated 10 October 2013 at [11].

 195   Exhibit 1, Statement of Rhonda Louise Orreal dated 10 October 2013 at [14] - [16].

 196 Exhibit 2, Statement of Rhonda Louise Orreal dated 10 October 2013 at [1].

 197   Exhibit 2, Statement of Rhonda Louise Orreal dated 10 October 2013 at [2] and [3].

 198 Exhibit 2, Statement of Rhonda Louise Orreal dated 10 October 2013 at [4].

 199   Exhibit 2, Statement of Rhonda Louise Orreal dated 10 October 2013 at [5] - [7].

 200   Exhibit 3.

 201   PN404.

 202   PN353 - PN362, PN374-PN404.

 203   PN362 - PN369.

 204   PN377 - PN379.

 205   PN388-PN390.

 206   PN397-PN398.

 207   PN401-402.

 208   PN430-PN432.

 209   PN405.

 210   PN410-PN415.

 211   PN416 - PN417.

 212   PN418.

 213   PN419.

 214   PN421-424.

 215   Exhibit 1 Statement of Rhonda Louise Orreal.

 216   PN370.

 217   PN426-PN427.

 218   PN428.

 219   PN429.

 220   PN439-PN443.

 221   PN465-PN469.

 222   PN444-PN456.

 223   PN470-PN471.

 224   Exhibit 7, Statement of Olwyn Scott dated 11 October 2013 at [1] - [3].

 225 Exhibit 7, Statement of Olwyn Scott dated 11 October 2013 at [4].

 226 Exhibit 7, Statement of Olwyn Scott dated 11 October 2013 at [6].

 227 Exhibit 7, Statement of Olwyn Scott dated 11 October 2013 at [7].

 228   Exhibit 7, Statement of Olwyn Scott dated 11 October 2013 at [9] and [10].

 229 Exhibit 7, Statement of Olwyn Scott dated 11 October 2013 at [11].

 230   Exhibit 7, Statement of Olwyn Scott dated 11 October 2013 at [12], [13] and [14].

 231   Exhibit 7, Statement of Olwyn Scott dated 11 October 2013 at [15], [16], [17], [18], [19], ‘OS1’, ‘OS2’, ‘OS3’ and ‘OS4’.

 232   PN907 - 909.

 233   PN910-916.

 234   PN917 - PN921.

 235   PN922 - PN924.

 236   PN925 - PN930.

 237   PN936.

 238   PN951 - PN953, PN975-PN985.

 239   PN965.

 240   PN1009.

 241   PN1022 - PN1024.

 242   PN1033.

 243   PN1047.

 244   PN1052 - PN1054.

 245   PN1068.

 246   PN1086 - 1088.

 247   PN1113.

 248   PN1122.

 249   PN1012 - PN1013.

 250 Exhibit 8, Statement in Response of Olwyn Scott dated 5 December 2013 at [1].

 251   Exhibit 8, Statement in Response of Olwyn Scott dated 5 December 2013 at [2] and [3].

 252 Exhibit 8, Statement in Response of Olwyn Scott dated 5 December 2013 at [4].

 253   PN1138-PN1141.

 254 Exhibit 8, Statement in Response of Olwyn Scott dated 5 December 2013 at [5].

 255   Exhibit 9.

 256   PN1129-PN1132.

 257   PN1135.

 258   PN1153-PN1184.

 259   PN1197-PN1205.

 260   PN1210 - PN1211.

 261   PN1212 - PN1216.

 262   Exhibit 9.

 263   PN1224 - PN1226.

 264   PN1236 - PN1245.

 265   PN1248 - PN1254.

 266   PN1255 - PN1258.

 267   PN1262-PN1265.

 268   PN1268.

 269   PN1269-PN1271.

 270   PN1310-PN1323.

 271   PN1426-PN1427.

 272   PN1358-PN1360.

 273   PN1368-PN1370.

 274   PN1384, PN1390.

 275   PN1402.

 276   PN1442-PN1446.

 277   PN1463-PN1467.

 278   Exhibit 12, Statement of Alba Vignolo dated 17 October 2013 at [1] and [2].

 279 Exhibit 12, Statement of Alba Vignolo dated 17 October 2013 at [3].

 280 Exhibit 12, Statement of Alba Vignolo dated 17 October 2013 at [3].

 281   Exhibit 12, Statement of Alba Vignolo dated 17 October 2013 at [4] and [5].

 282   Exhibit 12, Statement of Alba Vignolo dated 17 October 2013 at [6], [7] and [8].

 283 Exhibit 13, Statement in Response of Alba Vignolo dated 4 December 2013 at [1].

 284 Exhibit 13, Statement in Response of Alba Vignolo dated 4 December 2013 at [2].

 285 Exhibit 13, Statement in Response of Alba Vignolo dated 4 December 2013 at [3].

 286 Exhibit 13, Statement in Response of Alba Vignolo dated 4 December 2013 at [4].

 287 Exhibit 13, Statement in Response of Alba Vignolo dated 4 December 2013 at [5].

 288 Exhibit 13, Statement in Response of Alba Vignolo dated 4 December 2013 at [6].

 289 Exhibit 13, Statement in Response of Alba Vignolo dated 4 December 2013 at [7].

 290 Exhibit 13, Statement in Response of Alba Vignolo dated 4 December 2013 at [8].

 291   Exhibit 14.

 292   PN1502 - PN1507.

 293   PN1510 - PN1511.

 294   PN1512 - PN1513.

 295   PN1522-PN1524.

 296   PN1519 - 1521.

 297   Exhibit 14.

 298   PN1561.

 299   PN1580.

 300   PN1599-PN1602.

 301   PN1606 - 1608.

 302   PN1609.

 303   PN1616 - PN1627.

 304   PN1643-PN1648.

 305   PN1655 - PN1657.

 306   PN1733-1741.

 307   PN1748.

 308   PN1760-1764.

 309 P1776.

 310   PN1786-PN1790.

 311   PN1818 - PN1821.

 312   PN1853.

 313   PN1855-PN1867.

 314   PN1876-1878.

 315   PN1888.

 316   PN1893.

 317   PN1913 - 1914.

 318   PN1918-PN1921.

 319   Exhibit 55, Statutory Declaration of Jill Wiese dated 19 November 2013 at [1] and [2].

 320 Exhibit 55, Statutory Declaration of Jill Wiese dated 19 November 2013 at [8].

 321 Exhibit 55, Statutory Declaration of Jill Wiese dated 19 November 2013 at [10].

 322 Exhibit 55, Statutory Declaration of Jill Wiese dated 19 November 2013 at [11].

 323  Exhibit 55, Statutory Declaration of Jill Wiese dated 19 November 2013 at [12], [13] and [14].

 324 Exhibit 55, Statutory Declaration of Jill Wiese dated 19 November 2013 at [18].

 325   PN6039 - PN6043.

 326   PN6059 - PN6060.

 327 Exhibit 15, Statement of Ruth Morris dated 10 October 2013 at [1].

 328   PN1962 - PN1968.

 329   PN1980-PN1985.

 330   PN2003-2009.

 331 Exhibit 15, Statement of Ruth Morris dated 10 October 2013 at [3].

 332   PN2040-PN2041.

 333   PN2042-PN2043.

 334   PN2048 - PN2052.

 335   PN2054.

 336   PN2056.

 337   PN2065-PN2075.

 338   PN2076-2078.

 339   PN2095 - PN2104.

 340   PN2112-PN2125.

 341   PN2136-2139.

 342   PN2144-PN2148, PN2825-PN2827.

 343   PN2167 - PN2170, PN2482.

 344   PN2172-PN2174.

 345   PN2175-PN2182, PN2560-PN2581, PN2829-2830.

 346   PN2195-PN2198, PN2582-PN2601.

 347   PN224 -PN2240.

 348   PNPN2370-PN2371.

 349   PN2376.

 350   PN2388 - PN2400.

 351   PN2415, PN2721-PN272.

 352   PN2203-PNPN2214.

 353   PN2241-PN2246.

 354   PN2258 -PN2291, PN2424-PN2427.

 355   PN2299.

 356   PN2307.

 357   PN2318 - PN2327.

 358   PN2347.

 359   PN2351.

 360   PN2378.

 361   PN2409.

 362   PN2416 - PN2417.

 363   PN2419.

 364   PN2423.

 365   PN2428-PN2437.

 366   PN2488.

 367   PN2498 - PN2499.

 368   Exhibit 16.

 369   PN2544.

 370   PN2617-PN2622.

 371   PN2623-PN2639.

 372   PN2751 - PN2752.

 373   PN2758-PN2771.

 374   PN2772 - PN2774.

 375   PN2795-PN2803.

 376   Exhibit 53, Statutory Declaration of Carmel Freeman dated 19 November 2014 at [1] and [2].

 377   Exhibit 53, Statutory Declaration of Carmel Freeman dated 19 November 2014 at [9] and [10].

 378   PN5696 - PN5697.

 379 Exhibit 5, Statement of Glenis Delmore dated 15 October 2013 at [1].

 380 Exhibit 5, Statement of Glenis Delmore dated 15 October 2013 at [5].

 381 Exhibit 5, Statement of Glenis Delmore dated 15 October 2013 at [6].

 382 Exhibit 5, Statement of Glenis Delmore dated 15 October 2013 at [7].

 383   Exhibit 5, Statement of Glenis Delmore dated 15 October 2013 at [8] and [9].

 384 Exhibit 5, Statement of Glenis Delmore dated 15 October 2013 at [9].

 385 Exhibit 5, Statement of Glenis Delmore dated 15 October 2013 at [12].

 386 Exhibit 5, Statement of Glenis Delmore dated 15 October 2013 at [12].

 387   Exhibit 5, Statement of Glenis Delmore dated 15 October 2013 at [13], [14] and [15].

 388   Exhibit 6, Statement of Glenis Delmore dated 4 December 2013 at [1] and [2].

 389 Exhibit 6, Statement of Glenis Delmore dated 4 December 2013 at [3].

 390   PN769 - PN775.

 391   PN775-PN778.

 392   PN779 - PN784.

 393   PN785 - PN787.

 394   PN795.

 395   PN5886 - PN5892.

 396 Exhibit 54, Statutory Declaration of Jane Suller dated 19 November 2013 at [7].

 397 Exhibit 54, Statutory Declaration of Jane Suller dated 19 November 2013 at [8].

 398 Exhibit 54, Statutory Declaration of Jane Suller dated 19 November 2013 at [9].

 399 Exhibit 54, Statutory Declaration of Jane Suller dated 19 November 2013 at [16].

 400 Exhibit 54, Statutory Declaration of Jane Suller dated 19 November 2013 at [25].

 401   PN5893 - PN5899.

 402   PN5904 - PN5910.

 403   PN5926 - PN5927.

 404   PN5911 - PN5912.

 405   PN5923 - PN5925.

 406   PN5933 - PN5935.

 407   PN5987 - PN5990.

 408   PN5940 - PN5948.

 409   PN5954 - PN5958.

 410   PN5961 - PN5974.

 411   PN5975 - PN5976.

 412   PN5977 - PN5981.

 413   PN5991 - PN5994.

 414   Exhibit 50 Attachment “KD-6”.

 415   Exhibit 50 Attachment “KD-7”.

 416   Exhibit 50 Attachment “KD-8”.

 417   Exhibit 50 Attachment “KD-4”.

 418   Exhibit 48, Statutory Declaration of Lisa Guiver dated 20 November 2013 at [1] and [2].

 419   Exhibit 48, Statutory Declaration of Lisa Guiver dated 20 November 2013 at [3] and [4].

 420   Exhibit 48, Statutory Declaration of Lisa Guiver dated 20 November 2013 at [5], [6] and [7].

 421   Exhibit 48, Statutory Declaration of Lisa Guiver dated 20 November 2013 at [7] and [8].

 422   Exhibit 48, Statutory Declaration of Lisa Guiver dated 20 November 2013 at [10], [11] and [12].

 423   Exhibit 48, Statutory Declaration of Lisa Guiver dated 20 November 2013 at [13] - [17].

 424   Exhibit 48, Statutory Declaration of Lisa Guiver dated 20 November 2013 at [17] and [18].

 425   Exhibit 48, Statutory Declaration of Lisa Guiver dated 20 November 2013 at [19] and [20].

 426   PN4468 - PN4479.

 427   PN4522 - PN4524.

 428   PN4285.

 429   PN4287.

 430   PN4294 - PN4295.

 431   PN4297.

 432   Exhibit 18.

 433   PN4305 - PN4314.

 434   PN4319 - PN4349.

 435   PN4381 - PN4390.

 436   PN4409 - PN4411.

 437 [2014] FCAFC 148.

 438   Ibid.

 439   [2014] FWC 443.

 440   [2014] FWCFB 1447.

 441   Exhibit 24.

 442   Kucks v CSR Limited (1966) IR 182.

 443   The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited[2014] FWCFB 7447 at [41].

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