Queensland Nurses' Union of Employees v Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Mission Brisbane - [2014] FWC 443

[2014] FWC 443

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229 - Application for a bargaining order

Queensland Nurses' Union of Employees
v
Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Mission Brisbane; The Australian Workers’ Union of Employees, Queensland; and United Voice Union of Employees - Qld Branch
(B2013/1546)

DEPUTY PRESIDENT ASBURY

BRISBANE, 16 JANUARY 2014

Application for a bargaining order.

INTRODUCTION

[1] In a decision released on 24 December 2013, I granted an application by the Queensland Nurses’ Union of Employees for an Order under s.240 of the Fair Work Act 2009 (the Act). 1 In that Decision at paragraph [20] I indicated that given the urgency with which the matter was heard, and the need for the Decision to be issued, I would issue full reasons for that Decision as soon as possible after the Christmas/New Year Break. I have now consolidated that Decision to include details of the matters I considered in reaching those conclusions. These matters are included under the headings “Legislation”, “Consideration” and “Evidence”. Other sections of the Decision are substantively unaltered.

OVERVIEW

[2] On 3 December 2013, the Queensland Nurses Union of Employees (QNU) applied under s.229 of the Fair Work Act 2009 (the Act)for a bargaining order under s.230 of the Act concerning a proposed enterprise agreement - Blue Care/Wesley Mission Brisbane Care and Support Employees Enterprise Agreement 2013 (the proposed Care and Support Agreement) made between The Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Central Mission (Blue Care), the Australian Workers Union of Employees, Queensland (AWU) and United Voice Union of Employees - Queensland Branch (United Voice).

[3] The access period for the proposed Care and Support Agreement commenced on 3 December 2013, and a ballot was scheduled to open on 10 December 2013 and close on 3 January 2014. Following a hearing on 9 December 2013, Deputy President Booth issued an Interim Order requiring that the Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Central Mission not proceed with the scheduled ballot for the proposed Care and Support Agreement until the matter was heard 2. The matter was then allocated to me to determine whether a final order should be issued.

[4] The QNU seeks an Order in the following terms:

(a) That the access period for the proposed 2013 Support Workers’ Agreement immediately cease and be cancelled;

(b) That the bargaining representatives including the QNU meet on at least four occasions between 19 December 2013 and 31 January 2014 in respect of attempting to reach agreement about the proposed 2013 Support Workers’ Agreement;

(c) That in the event that no agreement is reached between the bargaining representatives including the QNU by 31 January 2014 in respect of attempting to reach agreement about the proposed 2013 Support Workers’ Agreement, that the Commission convene a further conference in the matter to assist the parties to reach agreement; and

(d) That until further order, no bargaining representative will take any step to request relevant employees to approve the proposed 2013 Support Workers’ Agreement pursuant to section 181 of the Act.

[5] The basis upon which QNU seeks the Order is that it is a bargaining representative for employees who are sought to be covered by the proposed Care and Support Agreement. In seeking the Order, the QNU maintains that the duties set out in Level 2 of the classification structure in the proposed Care and Support Agreement are the duties of Assistants in Nursing, who are properly covered by the Blue Care/Wesley Mission Brisbane Nursing Employees Enterprise Agreement 2013 (the 2013 Nursing Agreement).

[6] The QNU points to s.58 of the Act, and contends that the proposed Care and Support Agreement cannot apply to employees covered by the 2013 Nursing Agreement. Essentially, the QNU seeks to negotiate with Blue Care to ensure that the proposed Care and Support Agreement does not purport to cover employees who are properly covered by the 2013 Nursing Agreement. The QNU also contends that the scope of the proposed Care and Support Agreement differs significantly to that of the current Care and Support Agreement, and purports to cover nursing work which is properly covered by the 2013 Nursing Agreement.

[7] Further, the QNU contends that it had no notice of the changes to the scope of the proposed Care and Support Agreement during the negotiations for the 2013 Nursing Agreement and was not aware of the changes to the scope of the proposed Care and Support Agreement until 20 November 2013. It is also asserted that Blue Care has not given notice as required by s.173 and s.174(3) of the Act to any member or potential member of the QNU, in the form prescribed for that purpose at Schedule 2.1 of the Fair Work Regulations 2009.

[8] The application for a bargaining Order is opposed by the Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Central Mission, the AWU and United Voice. Those parties variously contend that the QNU is not a bargaining representative for the proposed Care and Support Agreement because it does not have the right to represent employees who are classified as Personal Support Assistants under that Agreement.

[9] It is further contended that there are discretionary grounds upon which the Order sought by the QNU should not be made. Essentially, those grounds are that the QNU does not wish to negotiate with the other bargaining representatives about the proposed Care and Support Agreement but rather wishes to force them to amend it, in circumstances where, if the QNU’s argument is correct, the proposed Care and Support Agreement does not cover those employees for whom the QNU claims to be a bargaining representative.

[10] The application was heard on 18 December 2013. Evidence was given in support of the Application by:

● Ms Rhonda Louise Orreal employed as an Assistant in Nursing and a Personal Carer at Blue Care’s Erowal Facility at Maleny;
● Ms Olwyn Beatrice Scott employed as a Personal Carer at Azure Blue Redcliffe; and
● Ms Veronica Therese Semple Industrial Officer with the QNU.

[11] Evidence in support of Blue Care and Wesley Central Mission was given by:

● Mr Kevin Davy, Integrated Services Manager at Azure Blue, Redcliffe;
● Ms Deborah Hastings, Senior Account Manager at PMA Solutions which undertakes printing and mailing services for Blue Care;
● Jane Suller, Services Manager at Blue Care Erowal.

[12] Submissions in opposition to the QNU application were made by the AWU and United Voice. Evidence for the AWU was given by an Industrial Advocate, Mr Peter Eldon. I have considered all of the evidence and submissions in the relatively short time frame in which a Decision was required to be given.

BACKGROUND

[13] It is necessary to set out some of the history to the present application. The Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Central Mission operate a number of aged care facilities in Queensland. Those facilities offer a range of living options including residential aged care facilities and serviced and non-serviced apartments. The residential aged care facilities have residents who are classified according to levels of acuity, as “high care” or “low care”.

[14] There is recognition by Government that the split between high care and low care is outdated and a move to a model that is described as Consumer Directed Care. Blue Care is responding to this change through implementation of a model it terms the Blue Care Tailor Made model to assist it in responding to the reforms. The result is that at some facilities, residents classified as “high care” and “low care” are accommodated in the same areas without distinction, so that care for both classifications of resident is provided by the same employees.

[15] Employees providing care for residents at facilities operated by Blue Care and Wesley Central Mission have been traditionally covered by two enterprise agreements. One agreement covers nursing employees and the other agreement covers a range of employees including a classification known as Personal Carers. The two enterprise agreements currently in operation are:

● Blue Care/Wesley Mission Brisbane Nursing Employees Enterprise Agreement 2013 (the Nursing Agreement); and

● Blue Care - WMAHC - AWU - LHMU Certified Agreement (No 5) 2005 (as varied and extended 2008) (the current Care and Support Agreement).

[16] The current Care and Support Agreement reached its nominal expiry date on 31 December 2011. Negotiations for the proposed Care and Support Agreement (which is intended to replace the current Care and Support Agreement) have been proceeding in 2013. According to the evidence of Mr Eldon, most of the negotiation meetings occurred after May 2013 and the parties reached agreement in principle in November 2013 that the proposed Care and Support Agreement would go to a ballot of employees. In the interim employees under the current Care and Support Agreement have been receiving wage increases by administrative arrangement.

[17] On 26 March 2013, the QNU filed an application under s.739 of the Act, for the Commission to deal with a dispute in accordance with a dispute settlement procedure under the Blue Care/Wesley Mission Brisbane Nursing Agreement 2011 the predecessor to the 2013 Nursing Agreement. Conferences of the parties were held on 11 April, 11 June, 28 August, 2 September and 6 September 2013. Initially the matters in dispute related to a review of rostering and hours proposed by Blue Care and an assertion that Blue Care is proposing to replace Assistants in Nursing (AINs) with Personal Carers (PCs). The matter in dispute is now limited to the issue relating to the alleged replacement of AINs with PCs (the classification dispute), and the following question was scheduled to be arbitrated on 16, 17 and 18 December 2013 and a number of dates in early 2014:

“Whether Ms Olwyn Scott and Ms Rhonda Orreal [who gave evidence in the current proceedings] and other employees employed by the Respondent who are performing the same or substantially the same work as Ms Olwyn Scott and Ms Rhonda 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.”

[18] Prior to filing the application for a bargaining order, the QNU filed an application under s.240 of the Act seeking the assistance of the Commission to deal with a bargaining dispute. On 2 December 2013 the QNU advised that it would not pursue the bargaining dispute application. Given the urgency of the QNU application for a bargaining order, the hearing dates for the classification dispute of 16 and 17 December 2013 were vacated, and the bargaining order application was heard on 18 December 2013.

[19] It is apparent from this brief history that the issue of whether some or all employees classified as Personal Carers/Personal Support Assistants and said by Blue Care to be covered by the current and proposed Care and Support Agreement, should be classified as Assistants in Nursing and covered by the current Nursing Agreement and its predecessor, has long been agitated between the parties.

THE ISSUES IN DISPUTE

[20] The issues in dispute are:

● Whether the QNU is a bargaining representative for the purposes of the proposed Care and Support Agreement;
● Whether the notice requirements for the making of an Order have been met or should be waived;
● Whether the Commission should refrain from making the Order on discretionary grounds because:

○ The QNU has unreasonably delayed seeking to be involved in bargaining for the proposed Care and Support Agreement;
○ The QNU is not seeking to genuinely bargain with Blue Care, Wesley Mission and the other bargaining representative; and
○ Granting the Orders will delay the ballot for the Care and Support Agreement.

LEGISLATION

[21] The Act provides that a bargaining representative may apply for the making of a bargaining order in Division 8—FWC’s general role in facilitating bargaining, as follows:

Subdivision A—Bargaining orders

228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the agreement.

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.

229 Applications for bargaining orders

Persons who may apply for a bargaining order

(1) A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement.

Multi-enterprise agreements

(2) An application for a bargaining order must not be made in relation to a proposed multi-enterprise agreement unless a low-paid authorisation is in operation in relation to the agreement.

Timing of applications

(3) The application may only be made at whichever of the following times applies:

(a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:

(i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or

(ii) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;

(b) otherwise—at any time.

Note: An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.

Prerequisites for making an application

(4) The bargaining representative may only apply for the bargaining order if the bargaining representative:

(a) has concerns that:

(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and

(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.

Non-compliance with notice requirements may be permitted

(5) The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.

230 When the FWC may make a bargaining order

Bargaining orders

(1) The FWC may make a bargaining order under this section in relation to a proposed enterprise agreement if:

(a) an application for the order has been made; and

(b) the requirements of this section are met in relation to the agreement; and

Agreement to bargain or certain instruments in operation

(2) The FWC must be satisfied in all cases that one of the following applies:

(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;

(b) a majority support determination in relation to the agreement is in operation;

(d) all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.

Good faith bargaining requirements not met

(3) The FWC must in all cases be satisfied:

(a) that:

(i) one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.

Bargaining order must be in accordance with section 231

(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).

231 What a bargaining order must specify

(1) A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following:

(a) the actions to be taken by, and requirements imposed upon, the bargaining representatives for the agreement, for the purpose of ensuring that they meet the good faith bargaining requirements;

(b) requirements imposed upon those bargaining representatives not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining;

(c) the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct;

(d) such matters, actions or requirements as the FWC considers appropriate, taking into account subparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives), for the purpose of promoting the efficient or fair conduct of bargaining for the agreement.

(2) The kinds of bargaining orders that the FWC may make in relation to a proposed enterprise agreement include the following:

(a) an order excluding a bargaining representative for the agreement from bargaining;

(b) an order requiring some or all of the bargaining representatives of the employees who will be covered by the agreement to meet and appoint one of the bargaining representatives to represent the bargaining representatives in bargaining;

(c) an order that an employer not terminate the employment of an employee, if the termination would constitute, or relate to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining);

(d) an order to reinstate an employee whose employment has been terminated if the termination constitutes, or relates to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining).

(3) The regulations may:

(a) specify the factors the FWC may or must take into account in deciding whether or not to make a bargaining order for reinstatement of an employee; and

(b) provide for the FWC to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind.

232 Operation of a bargaining order

A bargaining order in relation to a proposed enterprise agreement:

(a) comes into operation on the day on which it is made; and

(b) ceases to be in operation at the earliest of the following:

(i) if the order is revoked—the time specified in the instrument of revocation;

(ii) when the agreement is approved by the FWC;

(iii) when a workplace determination that covers the employees that would have been covered by the agreement comes into operation;

(iv) when the bargaining representatives for the agreement agree that bargaining has ceased.

233 Contravening a bargaining order

A person to whom a bargaining order applies must not contravene a term of the order.

Note: This section is a civil remedy provision (see Part 4-1).

[22] Section 229(1) of the Act makes it clear that only a bargaining representative may make an application for a bargaining order. The Act addresses the definition of a bargaining representative in Division 3—Bargaining and representation during bargaining as follows:

176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

Bargaining representatives

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;

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

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

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

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

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.

Employee may appoint himself or herself

(4) To avoid doubt and despite subsection (3),, an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.

Note: Section 228 sets out the good faith bargaining requirements. Applications may be made for bargaining orders that require bargaining representatives to meet the good faith bargaining requirements (see section 229).

CONSIDERATION

The approach to determining whether an employee organisation is a bargaining representative for an enterprise agreement

[23] Section 176(3) of the Act makes it clear that an employee organisation or an official of an employee organisation cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the Agreement.

[24] The approach to the application of this section is to consider whether the organisation claiming status as a bargaining representative has a member or members who will be covered by the Agreement and has constitutional coverage by virtue of its rules, in relation to work that will be performed under the Agreement by that member or members. 3

[25] In the present case, it is not in dispute that the QNU has at least two members, Ms Scott and Ms Orreal who are employed under the current Care and Support Agreement in the classification of Personal Care Attendants. It is also not in dispute that the work performed by Ms Scott and Ms Orreal is that of Personal Services Attendant as described in the classification definitions in the proposed Care and Support Agreement.

[26] The QNU contends that persons performing the work of Personal Services Attendants as described in the proposed Care and Support Agreement, are eligible for membership of the QNU on the basis that they are assistants-in-nursing as described in the QNU’s eligibility rule.

Union Rules

[27] Rule 6 of the QNU’s Rules provides as follows:

“Eligibility for Membership

a) The Union shall consist of an unlimited number of persons, men and women, who are registered with the Nurses Board of Queensland, or who produce evidence of other registration as registered nurses, or in the case of those not registered in Queensland, who can produce evidence of training to the satisfaction of the Council; student nurses; enrolled nurses; associate members; passive members; life members and honorary members.

b) For the purpose of interpreting this clause associate members shall be assistants-in-nursing and other nurses whom the Council sees fit to accept as associate members; passive members shall be registered nurses or enrolled nursing aides who are retired and/or are not actively engaged in nursing practice in Queensland; life members, those registered nurses who have been elected to life membership; and honorary members, those persons who have identified themselves with the cause of nursing and whom the Council has elected to membership.

c) Without limitation to any other part of this eligibility rule the Union will consist of any person employed in any of the following classes of employee in the State of Queensland:

i) a nurse; or

ii) a midwife,

and who is a person registered with the Nursing and Midwifery Board of Australia or any successor to the Nursing and Midwifery Board of Australia.

d) Without limitation to any other part of this eligibility rule the Union will consist of such other persons, whether employees in the industry or not, as have been appointed officers of the Union, and admitted as members thereof.”

[28] There is no definition of “assistants-in-nursing” in the QNU’s rules.

[29] Counsel for the AWU also referred to the rules of that Union. The eligibility rule of the Australian Workers’ Union of Employees, Queensland provides at rule 6, that every bona fide worker...engaged in manual or mental labour in or in connection with the specified industries or callings is eligible for membership. Sub-rule 88(a) states:

“All employees other than clerical employees and craftsmen (but including Cooks) employed in or about or in connection with or incidental to the industries or operations of hospitals, nursing homes, aged peoples’ homes, garden settlements, hotels, clubs, casinos, motels, boarding houses, hostels, serviced rooms or flats, residential colleges, cafes, restaurants, catering establishments, and operations of a like or similar nature including tourist accommodation.”

[30] It was submitted by the AWU that its rules are broader than those of the QNU, and cover all employees in the specified establishments, other than those specifically excluded. In contrast, the eligibility rule of the QNU does not refer to the location at which the work is performed or describe the work with any specificity. It was further submitted that the term “assistants-in-nursing” is a term of art, sought to be applied by the QNU in given situations, with subjective assessment, to suit the case that the QNU wants to make. I was not taken to the rules of United Voice.

[31] In my view the eligibility rules of the AWU and United Voice are not relevant to the determination of whether the QNU is entitled to represent the industrial interests of its members in relation to work that will be performed under the proposed Care and Support Agreement. The present case is not one about which of two competing unions covers a particular classification or class of employee. That the AWU and United Voice are entitled to represent the interests of their members in relation to work under the proposed Care and Support Agreement does not mean that the QNU is not similarly entitled.

[32] The principles relevant to the construction of union rules are well established and the authorities in relation to those principles were set out by Deputy President Booth in NSW Nurses & Midwives’ Association v SOS Nursing & Homecare Service Pty Ltd.

[33] In Appeal by Dyno Nobel Asia Pacific Limited) 4 a Full Bench of the Australian Industrial Relations Commission emphasised the distinction between eligibility rules based on the industry in which the business or enterprise of the employer operates (industry rule) and rules based on the type of work performed by the employees (vocational rule). The Full Bench in that case also observed that some rules may be expressed in such a way as to form a hybrid with different parts falling into each category and some rules may not fall into either category.5

[34] In construing an industry rule the starting point is the industry in which the employer is engaged, and not the particular tasks performed by employees. In the present case, the relevant rule of the QNU is a vocational rule and the emphasis is on the particular tasks performed by employees.

[35] The approach to construing a vocational rule was considered by the Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v CSPB Limited. 6 The Court held that the appropriate test is the primary purpose of employment. In applying this test the focus is on the employee’s occupation and not on one aspect of the employee’s work in isolation from the totality of his or her duties. In support of this proposition, the Court cited the judgement of Burt CJ in Federated Engine Drivers & Firemen’s Union v Mt Newman Mining Co Pty Ltd7 where his Honour observed in relation to workers driving engines that:

“...The question in any particular case is, I think, whether the worker is employed to drive an engine so that he earns his wages by doing that, or whether he is employed to do something else. And if the answer is that he is employed to do something else then he is not an engine driver merely because he operates a machine and drives an engine of that machine so as to do what he is employed to do.” 8

[36] The Court also cited the observation of Gray J in Joyce v Christoffersen 9 that:

“... the primary function of an employee must be determined by looking at what he or she does in the context of the employer’s organisation of work.” 10

[37] It is well established that eligibility rules of registered organisations of employees should not be narrowly or technically construed. A majority of the High Court of Australian said in R v Williams; Ex parte Australian Building Construction Employees and Builders’ Labourers Federation:

“The eligibility provisions in the rules of a registered organization of employees serve the function of defining the general area or areas of industry or industrial pursuit from which members can legitimately be drawn and with which the organization can legitimately be concerned. Since such eligibility provisions constitute a reference point for courts, commissions, employers, employees and other organizations in determining or ascertaining an organization’s proper coverage and field of operation, they must be construed objectively. In so construing them, however, it is permissible to pay regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used and to take account of evidence of that common understanding furnished by the previous use of the words in the relevant organization’s rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries”. (citations omitted).

[38] It is clear that this passage contains principles relevant to construing both industry and vocational rules. Accordingly, in construing the QNU rules and determining whether the QNU is entitled to represent the industrial interests of employees in relation to work that will be covered by the proposed Care and Support Agreement, the use of the term “assistants-in-nursing” in decisions and awards of both the Fair Work Commission and its predecessors and the Queensland Industrial Relations Commission where earlier iterations of the Nursing Agreement and the current Care and Support Agreement were dealt with is relevant. The use of that term in earlier iterations of those Agreements and the parties’ understanding about the scope of those Agreements is also relevant.

[39] It is also necessary to consider the evidence about the occupations of the employees that the QNU claims it has the right to represent, in terms of what they are employed to do in the context of Blue Care’s organisation of work.

The Nurses Award 2010 and the Aged Care Award 2010

[40] A definition of “nursing” was set out by Senior Deputy President Williams of the Australian Industrial Relations Commission in Australian Nursing Federation 11 as follows:

“...I intend to interpret the term nursing as meaning providing care to the sick, infirm and all those who, for any reason are unable to look after themselves. I include among such persons those who are not only in need of medical care but also those who are in need of assistance for the purposes of daily living. Without attempting to provide an exhaustive list, I will identify the tasks performed by such persons as including bathing, showering, ensuring the hygiene of the immediate environment, changing beds and toileting, implementing nursing care plans, implementing appropriate behaviour management….”. 12

[41] Notwithstanding that his Honour was considering an application to amend union rules, aspects of this definition can be found in the Nurses Award 2010. By virtue of clause 4.1 the Nurses Award 2010 is an occupational award covering employers in the health industry and their employees in the classification definitions in Schedule B, to the exclusion of any other Modern Award. The “health industry” is defined in clause 3.1 of the Award as follows:

“health industry means employers in the business and/or activity of providing health and medical services and who employ nurses and persons who directly assist nurses in the provision of nursing care and nursing services.”

[42] “Nursing care” is defined in Item B.2 of Schedule B as follows:

“Nursing care means:

● giving assistance to a person who, because of disability, is unable to maintain their bodily needs without frequent assistance;
● carrying out tasks which are directly related to the maintenance of a person’s bodily needs where that person because of disability is unable to carry out those tasks for themselves; and/or
● assisting a registered nurse to carry out the work described in B.5.
● For the purposes of this award nursing care also includes care provided by midwives.”

[43] The work in item B.5 includes the delivery of direct nursing care. There is also a definition in item B.1 of Schedule B of the Nurses Award 2010 for the classification of “Nursing assistant” in the following terms:

“Nursing assistant means an employee, other than one registered with the Nursing and Midwifery Board of Australia or its successor or one who is in training for the purpose of such registration, who is under the direct control and supervision of a Registered or Enrolled nurse and whose employment is solely to assist an RN or EN in the provision of nursing care to persons.”

[44] The application for approval of the current Nursing Agreement, cited the Nurses Award 2010 as the relevant award for the purposes of the application of the better off overall test. In short, but for the current Nursing Agreement, the Nurses Award 2010 would apply to all or some of the employees under the current Nursing Agreement and the Award continues to cover those employees by virtue of section 48 of the Act.

[45] The Awards underpinning the current Care and Support Agreement have essentially been supplanted by the Aged Care Award 2010. Those Awards are considered under the heading - “Coverage of the current Care and Support Agreement” - below. By virtue of clause 4.1, the Aged Care Award 2010 covers employers in the aged care industry and their employees in the classifications listed in clause 14 of that Award, to the exclusion of any other Award.

[46] The “aged care industry” is defined in clause 3.1 of the Aged Care Award 2010 in the following terms:

“aged care industry means the provision of accommodation and care services for aged persons in a hostel, nursing home, aged care independent living units, aged care serviced apartments, garden settlement, retirement village or any other residential accommodation facility.”

[47] Clause 4.7 of the Aged Care Award 2010 provides as follows:

“Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.”

[48] The classification definitions in Schedule B of the Aged Care Award 2010 are generic skill based definitions and refer simply to Personal Care Workers Grades 1, 2, 3, 4 and 5. There are no indicative tasks in the classification structure. As previously noted, the Nurses Award 2010 has an occupational coverage.

Coverage of the current Care and Support Agreement

[49] The current Care and Support Agreement applies in accordance with clause 1.3.1 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.”

[50] The Awards set out in Appendix 2 to the Agreement include the following Awards of the Queensland Industrial Relations Commission:

● Private Hospitals and Nursing Homes Industry Award - State 2003
● Award for Accommodation and Care Services Employees In Homes For The Aged (Excluding SE Qld)
● Award for Accommodation and Care Services Employees In Homes For The Aged (SE Qld) (the Accommodation Awards)
● Blue Care Enterprise Award - State 2004

[51] The classification definitions in the current Care and Support Agreement are found in Appendix 4. The classification structure set out in Appendix 4 is prefaced with the following provision:

“The following classification structure shall have application to employees who are in a position with a Blue Care or WMAHC work site where the constitutional coverage is by the Australian Workers’ Union or the Liquor Hospitality and Miscellaneous Union.”

[52] Levels 1 and 2 of the structure contain indicative tasks that are associated with assembly and preparation of ingredients for cooking, serving food, cleaning, delivering trays to rooms of clients, laundry and linen, food and beverage services, preparing and cooking a limited range of basic food items such as breakfasts, grill snacks, salads and preparing meals in a community setting. In addition to a range of tasks, Level 2 includes the following definition:

“ ‘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.”

[53] Level 3 also includes the following definition:

“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.”

[54] Levels 5 and 6 of the classification structure in the current Care and Support Agreement do not refer to Personal Carers, but include general references to employees working at a higher level than level 3, supervising employees at lower levels and identifying and catering for complex needs of clients. These levels are broad enough to cover Personal Carers working at higher levels, for example in a supervisory capacity.

The Private Hospitals and Nursing Homes Industry Award - State 2003

[55] The Private Hospitals and Nursing Homes Industry Award - State 2003, referred to in the application clause of the current Care and Support Agreement, applies to employees for whom rates of pay are prescribed and to their employers at private hospitals and nursing homes throughout the State of Queensland, but does not apply to employees covered by the Blue Care Enterprise Award 2004.

[56] The Private Hospitals and Nursing Homes Industry Award - State 2003 does not contain a specific reference to indicative tasks or a classification for Personal Carers or to other classifications of employees performing those tasks. That Award does contain references to cooking and hospitality tasks including preparing breakfasts and snacks, as well as linen handling, operation and maintenance of mobile lifting equipment, provision of dietary advice and the like.

The Blue Care Enterprise Award - 2004

[57] The making of the Blue Care Enterprise Award 2004 was not without controversy. The matter 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 was also a member of that Full Bench) had concerns about the scope of the Award. As that Full Bench then noted 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 2004.

[58] 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 2004 with respect to personal care work in nursing homes. In particular, Commissioner Fisher noted that the parties had acknowledged that the QNU has 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 2004.

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

[60] The Blue Care Enterprise Award 2004 has a classification structure which includes hospitality and related tasks similar to those in the current Care and Support Agreement and the Private Hospitals and Nursing Homes Industry Award - State 2003. The Blue Care Enterprise Award 2004 also includes reference to the provision of personal care services including those consistent with the qualification provided by an AQF Certificate III in Aged Community Services (Aged Care Work). By virtue of clause 1.5.1, the Blue Care Enterprise Award 2004 does not apply to employees providing personal care services in nursing homes, consistent with the views then held by the parties and the views of the Full Bench, that the AWU did not have coverage of that work.

The Accommodation Awards

[61] The Accommodation Awards apply to employees employed in or in connection with the provision of accommodation for aged persons in hostels, retirement villages, garden settlements or any other residential accommodation facility, including the client’s own home, and to short and long term respite care. The Awards also apply where work is co-ordinated from a hostel or aged care facility.

The proposed Care and Support Agreement

[62] The scope of the current Care and Support Agreement can be contrasted with that in the proposed Care and Support Agreement. The scope clause in the proposed Agreement does not contain the reference to Awards, the coverage of which previously defined the employees who are to be covered. The previous limitation in the classification structure to employees who are covered by the AWU or the LHMU (now United Voice) has been removed. Further, the restriction on the basis that a care and support worker is not a nurse, has been removed.

[63] The classification formerly known as Personal Care Attendant is termed Personal Services Assistant in the proposed Care and Support Agreement. A number of indicative tasks have also been added to the classification definitions, including references to:

● providing quality care and support in accordance with care plans;
● contributing to the development of care plans;
● assisting with activities of daily living, showering, dressing, toileting, grooming, mobility, eating and drinking as required;
● assisting with medication;
● liaising with health professionals and clinicians regarding resident’s special needs.

EVIDENCE

Work performed by Ms Scott and Ms Orreal

[64] Ms Scott is employed as a Personal Carer (PC) at Azure Blue. Previously she was employed as an Assistant-in-Nursing (AIN) at Pinewoods at Lawnton. Ms Scott said that she applied for a position as an AIN at Azure Blue but was told that all new employees would be as a PC. Ms Scott said that she has to do all of the duties at Azure Blue as a PC that she did as an AIN at Pinewoods.

[65] Ms Orreal states that she is employed both as an Assistant-in-Nursing (AIN) and a Personal Carer (PC) at Erowal and has a Certificate III in Aged Care. When Ms Orreal works as an AIN she works in what is called the nursing home. When Ms Orreal works as a PC she works in an area called the “Lodges” or “Hostels” which used to be for low care residents, but now accommodate residents with high care needs.

[66] Ms Scott and Ms Orreal referred to witness statements they made in connection with the dispute application, which referred to a number of duties which are very similar, including:

● assisting residents to the toilet or with urinals or bedpans;
● assisting/changing and ensuring residents wear continence aids in accordance with care plans;
● positioning of hearing aids and spectacles;
● assisting with oral care, cleaning of teeth and dentures;
● recognising changes in residents behaviours;
● urine urinalysis (testing urine for nitrates or blood);
● showering and dressing residents;
● applying creams and gels as required by the care plan or under direction of RN
● repositioning residents who are bed bound and checking for pressure areas and treating areas which look likely to develop into pressure areas;
● assisting with wound care ie. covering during showering or removing dressings under RN direction during showering if they require changing;
● giving pain treatment such as heat packs or Metsal/heat rub;
● weighing residents regularly;
● doing Aged Care Funding Instrument Notes when required;
● changing bed linen and residents’ clothes when they are incontinent;
● taking residents to the dining room for meals or feeding them when they are unable to feed themselves;
● ensuring diabetic residents eat at correct times;
● attending to fingernail care by trimming and cleaning nails;
● applying sunscreen and hats when residents are outside;
● assisting residents to attend to daily activities;
● spending one on one time with residents when required ie. reading mail to them or diverting attention and reassuring them when they are agitated;
● changing of colostomy bags/attaching night bags to catheters, attaching and removing male external catheters; and
● giving emotional and physical support to residents and their family members.

[67] Ms Scott and Ms Orreal emphasised that when they are dressing, showering and otherwise attending to residents, they are performing duties including checking skin integrity, changes in the appearance of residents’ skin, pressure areas, wounds, dressings and to ascertain whether residents are exhibiting symptoms or behaviours which could require further examination, such as urine testing to ascertain whether a resident has a urinary tract or similar infection. All observations are reported to Registered or Enrolled Nurses, who then give instructions in relation to the care to be provided. Ms Scott and Ms Orreal also carry out urine testing at the direction of Registered or Enrolled Nurses.

[68] Ms Scott states that some employees at Azure Blue are doing exactly the same work as her and are classified as AINs. Ms Scott also states that she is doing all of the same duties at Azure Blue as a PC that she did at Pinewoods as an AIN. Under cross-examination Ms Scott agreed that she secures doors in the areas she is working in, during the day, serves pre-prepared meals and snacks to residents, washes down regency chairs in which residents sit during the day and undertakes some filing and paperwork.

[69] Ms Orreal states that when they she is working as a PC she is performing all of tasks she performs as an AIN. Ms Orreal also said that she performs some cleaning work at Azure Blue that she did not perform at Pinewoods. Ms Orreal agreed under cross-examination that when working as a PC she also performs hospitality duties such as setting tables, serving food to residents, collecting plates after meals, rinsing plates, placing them in a trolley and returning them to the kitchen. Both Ms Scott and Ms Orreal said that they do not administer medications because they do not believe that it is safe for them to do so.

[70] Mr Davy said that at Azure Blue there is no distinction between high and low care. The residential facility (as distinct from the independent living units or community services) consists of three floors in a building called “Sutton”. Each floor has 32 rooms and there is no distinction between levels of acuity on each floor. AINs and PCs are employed at Azure Blue. Staff who are employed as AINs came across from another facility - Yallambee - when it closed down. New staff who are directly employed at Azure Blue, including non-compulsory transferees, are employed as PCs.

[71] Prior to the decision to close Yallambee, the direction for staffing at Azure Blue was that residential services were to be staffed by PCs only. This was changed following a decision to transfer staff from Yallambee in their current roles.

[72] Mr Davy said that as Azure Blue is an integrated facility, care staff are required to be flexible. PCs provide that flexibility because they generally perform a wide range of tasks and are able to work across a number of areas. PCs currently assist with diversional therapy work, hospitality shifts (including backfilling leave) and perform cleaning and other domestic tasks. AINs typically work in high care facilities in task orientated positions with a narrower scope. This is difficult to manage in an integrated site.

[73] Mr Davy said that when he was Service Manager at Wynnum, AINs would not complete some cleaning and food service tasks when requested but PCs would complete those tasks. Some facilities also have PCs assisting with medication under nurse supervision. This model does not operate at Azure Blue but a number of other facilities do run this medication assist model and it is an example of flexibilities available to Blue Care across its facilities.

[74] In relation to Ms Scott’s statement, Mr Davy agreed that she does perform most of the duties listed in that statement. The duties do differ between shifts - for example night staff may complete fewer duties because residents are asleep. Day staff may perform some duties not listed such as making tea and coffee and assisting with cleaning.

[75] None of the care staff at Azure Blue have completed the medication competency required to assist residents with medications (or do blood pressure, take pulse, wound dressings etc.) although under position descriptions they can be required to perform these tasks. AINs can do this work, but despite it being within the scope of the role, AINs will not assist with medication. Some PCs are also prepared to pick up hospitality and community shifts which adds significant flexibility.

[76] Care plans at Azure Blue are not clinical plans as are used in a hospital. Rather they set out the care needs of a resident in a comprehensive way. They include similar information to a traditional care plan but also other personal care information about the resident themselves. Care staff provide basic information to Registered and Clinical Nurses to assist with developing care plans, such as food preferences and reporting changes in the status of a client. Clinical nurses develop care plans in consultation with Registered Nurses and other Allied Health practitioners. Care staff do not draft or develop care plans.

[77] Under cross-examination, Mr Davy agreed that 60% of residents in Sutton are high care. Mr Davy also agreed that the duty lists from Yallambee appended to Ms Scott’s statement reflected the work that was done at Azure Blue, although there had been a review and some changes to those lists.

[78] Ms Suller said that both AINs and PCs are caring roles and employees in those roles operate strictly in accordance with care plans. All new staff at Erowal are now employed as PCs because of the movement to the tailor made model, and the broader and more flexible tasks covered by that role. A number of PCs at Erowal have also completed a medication competency and are classified as PC Plus. These PCs assist residents to take pre-packaged medications, undertake roster management and support other PCs. Residents in High Care units are assisted with their medications by Registered and Enrolled Nurses.

[79] In relation to Ms Orreal’s statement, Ms Suller said that the tasks listed are mostly accurate, except that PCs perform more hospitality work than AINs such as making tea, coffee and toast for residents in the mornings, making sustagen drinks, taking temperatures for food service and assisting residents with some medications where they have completed a medication competency.

[80] Under cross-examination, Ms Suller agreed that PCs and AINs at Erowal perform very similar work and that the only real difference between a PC and an AIN is that the former do some hospitality and kitchen type work. PCs also administer medication by following instructions on packages.

[81] In my view the work being performed by Ms Scott and Ms Orreal is substantially under the direction and control of and to assist Registered or Enrolled Nurses in the provision of nursing care as that term is generally understood in the context of relevant industrial instruments. I accept that those two employees perform a range of tasks that cannot be described in this way, for example cleaning, filing and assisting with daily living activities. However I am also of the view that these tasks are not such a significant aspect of the work performed by Ms Scott and Ms Orreal, so that their occupation is not an assistant-in-nursing and the QNU is not eligible to represent their industrial interests.

[82] The substantial work performed by Ms Scott and Ms Orreal has been regarded by the parties as being the work of assistants-in-nursing. Further, it is clear that both Ms Scott and Ms Orreal are employed to assist Registered Nurses and Enrolled Nurses in the provision of nursing care, notwithstanding that they perform other tasks such as cleaning and serving food.

[83] I make no finding that either Ms Orreal or Ms Scott are properly covered by the current Nursing Agreement. It does not follow that because the QNU has the right to represent their interests that Ms Scott and Ms Orreal cannot be covered by an agreement which contains classification definitions requiring them to perform a broader range of tasks. The interaction between the current Nurses Agreement and the current/proposed Personal Care Agreements is a matter that remains to be determined in other proceedings.

Negotiations and Pre -approval processes for proposed Care and Support Agreement

[84] Ms Semple said that at certain points during the negotiations for the 2013 Nurses Agreement she requested information about the progress of the proposed Care and Support Agreement. According to Ms Semple Blue Care stated that it intended to replace AINs with PCs in the future, but later said that this was limited to Azure Blue. That the statement was limited to Azure Blue was disputed by Ms Semple.

[85] Ms Semple stated that Blue Care did not attempt to amend the classification definitions for AINs in the 2013 Agreement or seriously pursue additional flexibility around the range of duties to be performed by AINs. Further, at no time did Blue Care indicate an intention to change the list of indicative tasks for PCS in the support workers classification to include duties currently included in the AIN classification descriptors in Schedule 3 of the Nursing Agreement.

[86] This does not mean that Ms Orreal and Ms Scott are or should be covered by the 2013 Nurses Agreement. Whether that Agreement covers particular employees is an entirely different question, and requires an examination of the 2013 Nurses Agreement and the Agreement that covers the provision of personal care.

[87] Ms Semple maintained that she did not know that this was Blue Care’s intention and became aware that this was the case when she saw the affidavit of Ms Patricia Ehlers in the dispute application, which was served on the QNU on 21 November 2013.

[88] Under cross-examination Ms Semple agreed that she is the contact person for the dispute application, and that the matter that remains in dispute is the issue of AINs and PCs. Ms Semple also agreed that this matter has been in dispute since at least February 2013 and that when the application was first made, the previous Nursing Agreement was on foot. Further, Ms Semple agreed that the QNU’s concerns about this matter continued notwithstanding the approval of the 2013 Nursing Agreement.

[89] In relation to pre-approval processes, Mr Davy said that copies of the proposed Care and Support Agreement were placed in the Azure Blue staff room on or around 4 December 2013. The information letter provided with the proposed Agreement was placed on each of the staff files in the staff room. An information sheet was also provided to staff on 4 December 2013.

[90] The information letter is dated 2 December 2013 and advises staff that the negotiations for the proposed Care and Services Agreement have recently been finalised with the AWU and United Voice and that a copy of the proposed Agreement is on the intranet and available in the workplace. The letter goes on to advise employees that the ballot will be by postal vote opening on 10 December 2013 and closing on 4 January 2014. Mr Davy also tendered a copy of a notice issued by United Voice to its members in relation to a meeting on 18 September 2013 for staff to “hear the latest information regarding ‘where to now’ with your collective agreement negotiations”.

[91] Under cross-examination, Mr Davy said that to the best of his knowledge, nothing had been given in writing to employees by Blue Care about the proposed Carers Agreement, other than the information on 4 December 2013. The only other information Mr Davy was aware of came from United Voice, which held information sessions for members.

[92] Ms Hastings said that on 10 November 2011 she received instructions from Blue Care to complete a mail merge of letters based on two pro forma letters and a list of individuals for the letters to be sent to. These related to two enterprise agreements. A letter said to relate to the matters in dispute in this case is appended to Ms Hastings witness statement. It is substantially in the form required by s.173 and 174(3) of the Act and in the form prescribed for that purpose at Schedule 2.1 of the Fair Work Regulations 2009. Ms Hastings said that the list of individuals to whom the letter was sent includes Ms Orreal and Ms Scott.

The purpose of the bargaining order sought by the QNU

[93] Ms Semple agreed that the QNU’s position is that persons currently employed as PCs who the QNU regards as AINs should not be employed under any agreement other than the Nurses Agreement. The QNU has held this concern since February 2013. The QNU’s position is that even under the classification definitions in the current Care and Service Agreement, there are persons employed as PCs who should properly be employed as AINs.

[94] The proposition was put to Ms Semple that the QNU was aware, prior to November 2013, that Blue Care and the Wesley Mission were negotiating a replacement agreement for the current Carers Agreement. Ms Semple agreed with that proposition and that the QNU was aware in the last quarter of 2012, that there was some informal discussion about an agreement that would cover non-nursing staff, and that an administrative increase had been paid pending finalisation.

[95] Ms Semple also agreed that she did not discount the possibility that an agreement would be reached with respect to non-nursing staff. The following exchange occurred between counsel for Blue Care Mr Murdoch, and Ms Semple:

“Can I suggest to you the short answer is that the QNU was content to not involve itself in any negotiations for a replacement carers agreement?---Well, I assumed I guess that those parties wouldn't interfere with a description of the personal carer and our belief was that as the personal carer description stood in the current agreement, that it didn't actually describe assistants in nursing work. So there was no reason for me to try and insert the QNU into those negotiations at that stage.

But could I suggest to you though that the situation was - and I think you've agreed with this - is that putting aside any change to the PCs description in the proposed agreement, on your evidence in respect of the existing definition of PCs the QNU was already very concerned about Blue Care employing as PCs people who were AINs, wasn't it?---Yes, we were concerned but we didn't believe that that definition described nursing work.

So you elected, as a result of your belief that you've just described, to register no interest in respect of any potential future carers agreement?---Well, those negotiations had been going on for two years so we'd just resolved our own nursing agreement. Blue Care/Wesley Mission did not indicate that they wanted to change or review the definitions of the assistants in nursing indicative tasks in the personal carers agreement. So, no, I didn't see a reason to seek to be a part of those negotiations.

Can I suggest to you - and can I ask you to go to your paragraphs 14 and 15 of your second affidavit?---Yes.

Paragraph 15 refers to something that you say is not in the minutes but you say there was a discussion about the desire of Blue Care to employ more PCs as they had a view that they were more flexible than AINs. Do you recall that as being a discussion in the negotiations that were taking place for the nurses agreement, do you?---Well, yes, there was a short discussion along those lines.”

[96] Ms Semple also agreed that the QNU’s position is that people who are properly regarded as AINs under its eligibility rules should not be covered by the proposed Care and Support Agreement, and that insofar as the classifications in the proposed Care and Support Agreement may catch those employees, the definitions should be changed. Ms Semple further agreed that the effect of the QNU achieving its position would be that the QNU would not have eligibility to be covered by the proposed Care and Support Agreement and would have no interest in the Agreement if it did not describe the work of AINs. Further, Ms Semple agreed that the goal of the QNU insofar as the Care and Support Agreement is concerned, is to achieve a position where AINs are not within that Agreement.

CONCLUSIONS

The QNU is a bargaining representative for the proposed Agreement

[97] It is not in dispute that the QNU has two members, Ms Scott and Ms Orreal, who will be covered by the proposed Care and Support Agreement, and who are performing work that is covered by the classification of Personal Support Assistant in that Agreement. What is in dispute is whether the QNU is entitled to represent the industrial interests of those persons in relation to work covered by the Agreement.

[98] The evidence in relation to the work performed by Ms Scott and Ms Orreal is that the duties performed by both employees as Personal Carers are essentially those that are performed in other Blue Care facilities by Assistants in Nursing. Indeed, Ms Orreal is currently performing work in both classifications at different locations within the same facility. The evidence of Ms Scott and Ms Orreal in relation to this issue was supported by Ms Suller who gave evidence on behalf of Blue Care. It is also clear from the evidence of Mr Davy, that a decision was made with respect to Azure Blue, to classify new employees at that facility as Personal Carers, notwithstanding that persons who had transferred to Azure Blue from other Blue Care facilities or who are performing the same work at other facilities, are classified as Assistant Nurses.

[99] In NSW Nurses and Midwives Association v SOS Nursing & Homecare Service Pty Ltd, Deputy President Booth summarised the authorities with respect to interpreting the eligibility rules of registered organisations of employees. 13 Those authorities include the decision of a majority of the High Court in R v Williams Ex parte Australian Building, Construction Employees’ and Builders’ Labourers Federation14where it was held that:

“...it is permissible to pay regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used and to take account of evidence of that common understanding furnished by the previous use of the words in the relevant organization’s rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries.”

[100] The issue of whether employees performing work termed “personal care services” or, as in the proposed Care and Support Agreement in these proceedings - “personal support services” - has a long and tortured history. Blue Care has been involved in that history, since at least 2004 when a Full Bench of the Queensland Industrial Relations Commission, of which I was a member, made the Blue Care Enterprise Award 2004. 15That Award is one of the Awards that underpins and defines the scope of the current Care and Support Agreement. The Full Bench dealt at length with the issue of whether the coverage of that Award overlapped with that of the instruments that covered nurses and assistant nurses.

[101] A key finding of the Full Bench in that case was that the Australian Workers Union does not have coverage of Personal Carers working in nursing homes. While I accept that the lines between a nursing home and an aged care facility have blurred, I do not accept that the situation has changed to the extent that I could be satisfied that all of the employees under the proposed Care and Support Agreement who will be classified as Personal Support Attendants and in particular Ms Scott and Ms Orreal, are not eligible for membership of the QNU.

[102] When the history of this matter is considered, it is clear that some of the work described in the proposed Care and Support Agreement is work that has been considered and treated by Blue Care and the other Unions party to that proposed Care and Support Agreement, as work that is performed by Assistants in Nursing.

[103] I am satisfied that the QNU, by virtue of clause 6 of its Rules, is entitled to represent the industrial interests of Ms Scott and Ms Orreal in relation to work that will be performed under the Proposed Care and Support Agreement, and that the QNU is a bargaining representative for those employees. It is also clear that the work performed by Ms Scott and Ms Orreal is work performed by Assistants in Nursing within the Rules of the QNU. Accordingly, the requirement in s.229(1) of the Act has been met.

The QNU has met the notice requirements under s.229(4) of the Act

[104] I am satisfied that the QNU has met the notice requirements under s.229(4) of the Act. The QNU gave notice of its concerns in relation to the negotiations for the proposed Carers Agreement, by letter to the Executive Director and Human Resources Consultant for Blue Care. The concerns notice sent by Mr Elder of the QNU on 21 November 2013, states that:

● The QNU became aware on 20 November that negotiations for the proposed Care and Services Agreement had been finalised by virtue of being served with a statement of a witness for Blue Care in the dispute application;
● The QNU has members who are currently classified as Personal Carers and would be covered by the proposed Care and Services Agreement;
● The QNU is a default bargaining representative within the terms of s.176 of the Act on the basis that its rules include coverage of Assistants In Nursing, however titled; and
● Blue Care has not met the requirements for good faith bargaining in particular by failing to recognise and bargain with other bargaining representatives for the Agreement.

[105] Blue Care responded to the notice by rejecting the proposition that the QNU is a default bargaining representative and contending that the QNU is not entitled to represent the industrial interests of employees under the proposed Care and Services Agreement.

[106] I accept that the QNU did not give such a notice to the other bargaining representatives, the AWU or United Voice. However, I also accept that the concerns of the QNU were principally in relation to the conduct of the employer parties to the Agreement. The issue of whether notice under s.229(4) is required to be provided to all bargaining representatives was dealt with by Senior Deputy President Richards in CFMEU v Ostwald Bros Pty Ltd 16, where his Honour held that the requirement to give notice is met, if the written notice is given to the bargaining representative about whom the applicant bargaining representative holds concerns.

[107] In any event, the AWU and United Voice had the notice on 26 November 2013 when the QNU notified a bargaining dispute, and on 3 December 2013 as an attachment to the present application. I am also of the view that given the history of this matter and the disputation related to it, that the QNU held concerns about the issue of coverage of employees said to be Personal Carers could have come as no surprise to those organisations. Further, given the QNU had concerns, as evidenced by the previous litigation and the classification dispute in relation to the current Care and Support Agreement, it would hardly have surprised any of the negotiating parties to the proposed Agreement, that the QNU’s concerns would be exacerbated by the apparent widening of the scope of the proposed Care and Support Agreement.

[108] On the basis of the other actions taken by the QNU in relation to pursing this matter, I am also of the view that any non-compliance should be waived, in all of the circumstances of this case. Accordingly, I am satisfied that the requirements in s.229(4) of the Act have been met.

Other requirements for an Order to be made

[109] There is no issue with the timing of the application. The Agreement covering the employees who are to be covered by the proposed Care and Support Agreement expired in November 2011.

Are there discretionary grounds for refusing to make the Order?

[110] I do not accept the submissions advanced by Blue Care, the AWU and United Voice that there are discretionary grounds that would justify a refusal to make the Order. It is true that the conduct of the QNU in pursuing its long expressed interest in the application and scope of the current and proposed Care and Support Agreements has left much to be desired.

[111] It should have been reasonably apparent to the QNU that the parties negotiating a new Care and Support Agreement may be negotiating a change to the application of the classification structure of the Agreement. This is particularly the case given the QNU’s agitation of the issue. Given its concerns, the QNU should also have monitored the situation with respect to the negotiations and sought to press its status as bargaining representative at an earlier point.

[112] I also accept that the QNU is seeking to negotiate about the scope of the proposed Care and Support Agreement with the objective of removing from its operation, those employees it claims to represent in relation to the Agreement, in circumstances where the QNU contends that those employees are not properly covered by the proposed Care and Support Agreement regardless of its scope.

[113] Although on one view, the QNU position is a classic “Catch 22” it is the case that a Full Bench of the Commission has held that there is no indication in the statutory provisions that a bargaining representative arguing for a different scope for an agreement is necessarily not trying to reach agreement 17. The scope of an agreement can be the subject of negotiations. That the QNU seeks to negotiate a different scope to that agreed by other bargaining representatives, is not grounds for refusing to exercise the discretion to make a bargaining Order.

[114] It could equally be said that Blue Care has an implacable position about the scope of the proposed Care and Support Agreement. A possible outcome of further discussions may be movement on the part of either Blue Care, the AWU and United Voice on the one hand, or the QNU on the other.

[115] Balanced against these considerations, is the fact that in full knowledge of the history of the issue of coverage and work to be performed by Personal Carers and Assistants in Nursing, and of live proceedings in relation to its current Care and Support Agreement, Blue Care proceeded to negotiate a replacement for that Agreement with what on any view, is a significantly amended application clause and classification structure. In my view, this constitutes a failure to meet the good faith bargaining requirements which should be addressed by the making of a bargaining Order.

[116] In making a bargaining Order the delay will be relatively short, particularly in the context of the lengthy period exceeding two years, between the nominal expiry date of the current Care and Support Agreement and the making of the proposed Agreement. Blue Care has paid wage increases on an administrative basis and has within its power the decision as to whether to continue to do so, while it holds discussions with the QNU in relation to its concerns about the proposed Agreement.

ORDER

[117] I do not propose to issue an Order in the terms sought by the QNU. Those terms would require a delay of at least one month and further conciliation proceedings before the Commission. In my view it is appropriate to issue an Order that operates until 31 January 2014, and requires the parties to meet and confer on four occasions during that time. 18 I am also of the view that it is not appropriate to issue an Order requiring the parties to attend a conciliation conference in the Fair Work Commission. The Commission is available to conduct a conference if the parties agree that this is appropriate.

[118] In my view, the meetings will put the QNU in the position that it would have been in had its rights as bargaining representative been recognised. The terms of the Order also reflect my view that the positions adopted by both parties are unlikely to be altered, and that the question of whether the scope of the proposed Agreement is appropriate will continue to be ventilated in other proceedings.

[119] This Decision should not be taken as an acceptance of the proposition that the classification of Personal Carer or Personal Care Assistant or that Ms Scott or Ms Orreal is properly covered by the 2013 Nursing Agreement or its predecessors. That matter remains to be determined.

DEPUTY PRESIDENT

Appearances:

Mr J. Merrell of Counsel on behalf of the Queensland Nurses’ Union of Employees.

Mr C. Murdoch of Counsel on behalf of Blue Care and the Wesley Mission.

Mr A. Herbert of Counsel on behalf of the Australian Workers’ Union of Employees Queensland.

Mr D. Peverill on behalf of United Voice Industrial Union of Employees.

Hearing details:

2013.

Brisbane:

December 18.

1 [2013 FWC 10219

2 PR545487

3 [2011] FWAFB 6551; NSW Nurses and Midwives Association v SOS Nursing and Homecare Service Pty Ltd [2013] FWC 5062.

4 Appeal by Dyno Nobel Asia Pacific Limited PR956868.

5 Ibid at [13].

6 [2012] FCAFC48 (2 April 2012).

7 (1977) 57 WAIG 794

8 Ibid at 794.

9 (1990) 26 FCR 261

10 Ibid at 279.

11 Print T4652

12 Ibid at [37].

13 [2013] FWC 5062

14 (1982) 153 CLR 402, at 407.

15 Blue Care v AWU [2004] QIRComm 27; 175 QGIG 987 (27 February 2004).

16 [2012] FWA 1870.

17 Stuartholme School and Others v Independent Education Union of Australia [2010] FWAFB 1714.

18 An Order was issued on 24 December 2013 [PR546352] and was subsequently corrected on 6 January 2014 [PR546497].

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