[2015] FWC 803

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Southern Cross Care (Broken Hill) Ltd
v
The Broken Hill Town Employees' Union
(C2014/3130)

SOUTHERN CROSS CARE (BROKEN HILL), NSWNA AND THE BROKEN HILL TOWN EMPLOYEES' UNION ENTERPRISE AGREEMENT 2011 - 2014
[AE897341]

Aged care industry
COMMISSIONER HAMPTON	ADELAIDE, 8 APRIL 2015

Matter in dispute relates to classification of employees - whether care service employees should be reclassified to one or more higher classifications - application determined based upon classification criteria in enterprise agreements and the actual work and responsibilities of the employees - no basis to reclassify employees found - legitimate issues arise in terms of changes in aged care and the need for a career structure - issues identified for negotiation in future enterprise agreements.

1. The context for the dispute

[1] South Cross Care (Broken Hill) Ltd (Southern Cross Care) has applied to the Commission to deal with a dispute under s.739 of the Fair Work Act 2009 (the FW Act). The dispute principally concerns the proper application of the Southern Cross Care (Broken Hill), NSWNA And The Broken Hill Town Employees' Union Enterprise Agreement 2011 - 2014 (the 2011 EA).

[2] The Broken Hill Town Employees’ Union (BHTEU) is covered by the 2011 EA and represents employees who are subject to the issue in dispute.

[3] The 2011 EA was approved by the Commission under the FW Act on 21 September 2012. It succeeded the Southern Cross Care (Broken Hill) Ltd Non-Nursing Agreement 2009 (the 2009 EA) which had been approved by the Commission in May 2010.

[4] In November 2013, the BHTEU launched proceedings in the Industrial Relations Court of South Australia in relation to the 2009 and 2011 EAs and ultimately it was agreed that the parties would utilise the dispute resolution procedures of the current enterprise agreement and the FW Act to have the issues resolved or determined by the Commission.

[5] As a result, the dispute between the parties is being arbitrated by the Commission pursuant to the terms of Clause 42 of the 2011 EA. There is no issue between the parties as to the Commission's jurisdiction to hear and resolve this dispute. Further, the parties have entered into Undertakings to give practical effect to any decision of the Commission.

[6] Southern Cross Care operates three residential aged care facilities in Broken Hill: Aruma Lodge, Harold Williams Home and St Anne’s Nursing Home, plus a number of independent living facilities.

[7] The dispute directly concerns two of these facilities; namely, Harold Williams Home and the Aruma Lodge Hostel. Harold Williams Home is a 40-bed residential care facility and is located next door to the St Anne's Nursing Home which is also operated by Southern Cross Care. Aruma Lodge Hostel is located some seven kilometres away from St Anne's Nursing Home and has 58 beds comprising 47 permanent beds, and one respite bed. Part of that hostel is a secure dementia wing with 10 beds. There is a dispute about how the facilities should be classified for present purposes.

[8] In addition to management and administrative staff, Southern Cross Care engages both qualified Nursing staff and Care Service Employees (CSEs) in the care of its residents. For many shifts, the CSEs work directly with the Registered Nurses (RNs) (and management) however during various shifts, the CSEs at the facilities concerned do not have supervising Nurses in the immediate workplace and rely upon more general “supervision” from Nurses located within St Anne’s Nursing Home. The nature and implications of that supervision forms part of the disputed issues in this matter.

2. What the dispute is about

[9] On behalf of 31 named members, the BHTEU alleges those employees employed by Southern Cross Care in the role of CSE, and currently treated as being Care Service Employees Grade 2 (CSE2), have been incorrectly classified under the 2009 EA and the 2011 EA.

[10] Each of the employment classifications in the 2009 EA and the 2011 EA are relevantly in the same terms.

[11] The BHTEU originally contended that the named CSE2 employees engaged on shifts other than dayshift (i.e. afternoon, nightshift, weekends and public holidays) should have been, and should now be, classified under the 2009 and 2011 EAs as either Care Service Employees Grade 3 (CSE3) or Care Service Employees Grade 4 (CSE4).

[12] In closing submissions, the BHTEU proposed a more precise reclassification. That is,

● where no Facility Manager or Registered Nurse (RN) is physically on site, those CSEs on duty be classified as a CSE3;
● if an RN does not administer the medication to residents, the CSE administering the medications is a CSE4 - Level 2; and
● where no CSE is designated as having overall responsibility on any shift where an RN or Facility Manager is not present, all CSEs on duty will be paid the higher rate (CSE3).

[13] I note that the third outcome is an alternative approach to achieving the same end, that is, the reclassification of the relevant CSEs to CSE3 where no RN or Manager is present.

[14] Southern Cross rejects these claims and contends that named employees have been, and are, correctly classified as CSE2 under both instruments.

[15] The difference in approach between the parties arises from contrary views about the nature and extent of supervision provided by the RNs and management, the level and nature of responsibilities of the CSEs, particularly in relation to the provision of medications and/or work undertaken when a RN is not on duty in the facility concerned, and the application of the classification structure of the enterprise agreements to those circumstances.

3. The relevant provisions of the enterprise agreements

[16] The 2011 EA applies to Southern Cross Care and to employees performing work within the classifications provided in the agreement. These classifications include the CSEs, Nursing staff and clerical and administrative employees. The BHTEU, the New South Wales Nurses' Association and the Australian Nursing Federation are covered by the agreement. 1

[17] The relationship between the 2011 EA and other instruments is provided in clause 7 in the following terms:

“7. COMPLETE AGREEMENT

7.1 Other than individual agreements reached in accordance with Clause 8- Agreement Flexibility, this Agreement is intended to cover all matters pertaining to the employment relationship. In this regard, it represents a complete statement of the mutual rights and obligations between the employer and the employees to the Clause 10 exclusion (to the extent permitted by law) of other laws, awards, agreements (whether registered or unregistered), custom and practice and like instruments or arrangements.

7.2 Notwithstanding clause 7.1, the NES will prevail over the content of this Agreement, to the extent of any inconsistency or omission.”

[18] Clause 10 provides as follows:

“10. NO EXTRA CLAIMS

10.1 The parties bound by this Agreement acknowledge that this Agreement settles all claims in relation to the terms and conditions of employment of the employees to whom it applies and agree that they will not pursue any extra claims during the term of this Agreement.

10.2 Without limiting the generality of the foregoing, there shall be no industrial action for the purpose of supporting or advancing claims against the employer until the nominal expiry date has passed and the requirements of the Act have been satisfied.

10.3 Where any disagreement arises, the parties shall follow the Dispute Settlement Procedure contained in this Agreement. The parties acknowledge that the terms of this Agreement represent the totality of all matters in the employment relationship and that no industrial action shall be taken in support of any matter(s) whatsoever which is (are) covered or not covered by this Agreement until its nominal expiry date has passed and the requirements of the Act have been satisfied.

10.4 The employer and employees bound by this agreement acknowledge that the Australian Government has initiated a Productivity Commission Inquiry - Caring for Older Australians. It is further acknowledged that should the Productivity Commission Inquiry result in a decision by the Australian Government to alter current aged care funding arrangements which would be available for aged care staffing, the industrial organisations will meet to discuss the application of any such changed funding arrangements to wages payable during the life of this agreement.”

[19] Although not directly relevant to the CSEs, there are in-charge provisions in clause 21.1 that are referred to by Southern Cross Care and there is a relevant higher duties provision in clause 21.7. The provisions are as follows:

“21. ALLOWANCES

21.1 In Charge Allowance

(a) A registered nurse who is designated to be in charge during the day, evening or night of a residential aged care facility shall be paid in addition to his or her appropriate salary, whilst so in charge, the per shift allowance set out in Item 6 (for less than 100 beds) or Item 7 (for 100 or more beds) of Table 3 of Schedule B to this Agreement.
(b) A registered nurse who is designated to be in charge of a shift in a section of a residential aged care facility shall be paid in addition to his or her appropriate salary, the per shift allowance set out in Item 8 of Table 3 of Schedule B to this Agreement.
(c) This sub-clause shall not apply to registered nurses holding classified positions of a higher grade than a registered nurse.

...

21.7 Higher Duties

(a) Subject to sub-clauses (b), (c) and (d) of this clause, an employee who is called upon to relieve an employee in a higher classification or is called upon to act in a vacant position of a higher classification, shall be entitled to receive for the period of relief or the period during which he or she so acts the minimum payment for such higher classification.
(b) The provisions of sub clause (a) of this clause shall not apply where the employee of the higher classification is off duty pursuant to sub-clause 15.2(f) - Arrangement of Hours, except insofar as a Director of Nursing accumulates days off for a continuous period of one week or more; nor when an employee in a higher grade is absent from duty by reason of his/her additional day off duty as a consequence of working a 38 hour week.
(c) Further, the provisions of sub-clause (a) of this clause shall not apply where a Director of Nursing is absent from duty for a period of three working days or less for any reason other than pursuant to sub-clause 15.2(f) - Arrangement of Hours.
(d) Subject to sub-clauses (b) and (c) above, the provisions of sub-clause (a) shall not apply where a day worker is being relieved and is absent from duty for a period of three consecutive working days or less which have been rostered in advance.”

[20] Clause 34, labour flexibility and mixed functions provides as follows:

“34. LABOUR FLEXIBILITY AND MIXED FUNCTIONS

34.1 The employer may direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training
34.2 The employer may direct an employee to carry out such duties and use such tools and equipment as may be required, provided the employee possesses the relevant skills and competence to perform such tasks. Where the employee does not possess such skills and competence, appropriate training shall be facilitated.
34.3 Any direction issued by the employer pursuant to sub-clauses 34.1 and/or 34.2 shall be consistent with the employer's responsibility to provide a safe and healthy working environment for employees, and the employer's duty of care to residents and/or clients.
34.4 Where an employer has decided there is no longer a requirement for a Deputy Director of Nursing or an Assistant Director of Nursing to be appointed in a workplace, the employer shall ensure that the workload previously performed by that nurse manager is adequately allocated to other management staff, and that the workloads of all other nurses on the nursing care roster within that workplace will remain consistent with their substantive role, duties and classifications.”

[21] The classification criteria for the CSEs are relevantly set out in Schedule A Part I. in the following terms:

“SCHEDULE A- EMPLOYMENT CLASSIFICATIONS

This Schedule contains the following employment classifications and definitions:

“I. GENERAL EMPLOYMENT CLASSIFICATIONS

The following employment classifications and definitions apply to this Agreement:

1. CARE SERVICE EMPLOYEES

1.1 Care Service Employee New Entrant means an employee with less than 500 hours work experience in this industry who performs basic duties under direct supervision. Such employees perform routine functions requiring understanding of clear rules and procedures. Work is performed using established practices, procedures and instructions including compliance with documentation requirements as determined by the employer. Problems should be referred to a more senior staff member. Indicative tasks an employee at this level may perform are as follows:

Care Stream: Carry out simple tasks under supervision to assist a higher grade Care Service Employee attending to the personal needs of residents.
Maintenance Stream: General labouring assistance to higher grade employees in the full range of gardening and maintenance duties.

1.2 Care Service Employee Grade 1 means an employee who has 500 hours work experience in the industry or who has or can demonstrate relevant prior experience, acceptable to the employer, which enables the employee to work effectively at this level. A Junior Employee (less than 18 years) when classified at this grade may be paid as a new entrant. An employee who works under limited supervision individually or in a team environment. Employees at this level work within established guidelines including compliance with documentation requirements as determined by the employer. In some situations detailed instructions may be necessary. Indicative tasks an employee at this level may perform are as follows:

Care Stream: Under limited supervision, provide assistance to residents in carrying out simple personal care tasks which shall include but not be limited to: supervise daily hygiene eg assisting with showers or baths, shaving, cutting nails; lay out clothes and assist in dressing; make beds and tidy rooms; store clothes and clean wardrobes; assist with meals. Under direct supervision, provide assistance to a higher Grade Care Service Employee in attending to the personal care needs of a resident.
Maintenance Stream: Performance under limited superv1s1on of labouring duties associated with gardening and general maintenance activities, including but not limited to: sweeping; hosing; garbage collection and disposal; keeping the outside of buildings clean and tidy; mowing lawns and assisting the gardener in labouring.

1.3 Care Service Employee Grade 2 means an employee with relevant experience who works individually or in a team environment, and is responsible for the quality of their own work, subject to general supervision, including compliance with documentation requirements as determined by the employer. Indicative tasks an employee at this level may perform are as follows:

Care Stream: Provide a wide range of personal care services to residents, under limited supervision, in accordance with Commonwealth and State Legislative requirements, and in accordance with the resident's Care Plan, including: assist and support residents with medication utilising medication compliance aids; simple wound dressing; Implementation of continence programs as identified in the Care Plan; attend to routine urinalysis, blood pressure, temperature and pulse checks; blood sugar level checks etc and assist and support diabetic residents in the management of their insulin and diet, recognising the signs of both Hyper and Hypo-Glycaemia, recognise, report and respond appropriately to changes in the condition of residents, within the skills and competence of the employee and the policies and procedures of the organisation; assist in the development and implementation of resident care plans; assist in the development and implementation of programs of activities or residents, under the supervision of a Care Service Employee Grade 3 or above, or a Diversional Therapist. Drive a Sedan or Utility.
Maintenance Stream: Undertake basic repairs to buildings, equipment, appliances, and similar items not calling for trades skills or knowledge. Work with and undertake limited coordination of the work of other maintenance workers. Where no tradesperson is employed, an employee at this level may be called upon to perform tasks falling within the scope of trades skills, provided the time involved in performing such work, is paid at the rate of Care Service Employee Grade 3. Perform gardening duties. Provide advice on planning and plant maintenance. Attend to indoor plants, conduct recycling and re-potting schedules. Carry out physical inspections of property and premises and report.

1.4 Care Service Employee Grade 3 means an employee who holds either a Certificate Level Ill in Aged Care Work or other appropriate Qualifications/Experience acceptable to the employer and:

(a) is designated by the employer as having the responsibility for leading and/or supervising the work of others; or
(b) is required to work individually with minimal supervision and has been designated by the employer as having overall responsibility for a particular function within the residential aged care facility.

An employee who holds appropriate Trade Qualifications and is required to act on them. Employees at this level may be required to plan, direct, and train staff and comply with documentation requirements as determined by the employer and assist in the development of budgets. Indicative tasks an employee at this level may perform are as follows:

Care Stream: Coordinate and direct the work of staff. Schedule work programs on a routine and regular basis. Develop and implement programs of activities for residents. Develop resident care plans. Drive a Minibus or Larger Vehicle.
Maintenance Stream: Carry out maintenance, repairs, gardening and other tasks falling within the scope of trades skills. Undertake the more complicated repairs to equipment and appliances calling for trades skills. Coordinate and direct the work of staff performing gardening duties. Schedule work programs on a routine and regular basis.

1.5 Care Service Employee Grade 4 means:

(a) Level One: An employee who holds a Certificate IV in Aged Care Work (CHC40102) or other appropriate qualifications/experience acceptable to the employer is required to act on them and:

is designated by the employer as having the responsibility for leading and/or supervising the work of others in excess of that required for a CSE 3; and

is required to work individually with minimal supervision.

Employees at Grade 4 may be required to exercise any/all managerial functions in relation to the operation of the care service and comply with documentation requirements as determined by the employer. Indicative tasks an employee at this level may perform are as follows.

Care Stream: Overall responsibility for the provision of personal care to residents. Coordinate and direct the work of staff. Schedule work programs.
Maintenance Stream: Coordinate and direct the work of staff performing gardening duties. Schedule gardening work programs. Where required, let routine service contracts associated with gardening.

(b) Level Two: An employee who is required to deliver medication to residents in residential aged care facilities:

previously defined as Nursing Homes (as at 31 December 2004) by the Nursing Homes Act 1988 (NSW); or

in which more than 80% of places are "allocated high care places" as defined in the Aged Care Act 1997 (Cth).

employee at this level must hold the following qualifications, which may be varied from time to time by the relevant National Vocational, Education and Training Body:

a Certificate Ill in Aged Care Work (CHC301 02); and

a Certificate IV in Aged Care Work (CHC40102); and

medication module - "Provide Physical Assistance with Medication" (CHCCS303A); or

Hold other appropriate qualifications acceptable to the employer.

Employees at this level may be required to perform the duties of a CSE 4 - Level 1.

1.6 Care Service Employee Grade 5

This grade shall only apply to employees having responsibility for supervision of the care service (eg. Hostel Supervisor). An employee who may be required to have and use any additional qualifications than would be required for a grade 4 employee. Employees at this level may be required to exercise any/all managerial functions in relation to the operation of the care service and comply with documentation requirements as determined by the employer.

1.7 Other

"Maintenance Supervisor (Tradesperson)" means an employee who has trade qualifications and has overall responsibility for maintenance at the place of employment and may be required to supervise other maintenance staff.
"Maintenance Supervisor (Otherwise)" means an employee who is required to perform maintenance duties as required and who may be required to supervise other maintenance staff and has overall responsibility for maintenance at the place of employment.”

[22] The 2009 EA applied only to non-nursing staff and the BTHEU was covered by that agreement. The 2009 instrument also had the same classification structure and definitions for the CSEs however it also provided translation arrangements in Schedule B Pay, Other rates, Allowances and Translation. The translation dealt with the fact that prior to the making of the 2009 EA, the CSEs were employed pursuant to the former Aged Care Industry (Broken Hill) Award (the Broken Hill NAPSA).

[23] I will discuss the detail of those arrangements in due course however it is sufficient to note that in the case of the former classification of Personal Care Attendant under the Broken Hill NAPSA, which applied to the employees now classified as CSEs, the translation was confirmed as being to the CSE2 classification under the 2009 EA.

4. The position of Southern Cross Care

[24] Southern Cross Care advanced a comprehensive position on the matter which included the following general propositions:

● Although it was the applicant, the BHTEU was seeking to change the existing assigned classifications and as such it should carry the onus of proof to satisfy the Commission that its claims should be upheld;
● In light of the industrial and historical context, and applying the natural and ordinary meaning of the 2009 and 2011 EAs, there was no ambiguity and a finding that the CSEs were correctly classified should be made; and
● In the alternative, any ambiguity should be resolved in favour of the position of South Cross Care in light of certain common understandings about the classification of the relevant employees.

[25] In terms of the surrounding circumstances and context, Southern Cross Care contends that:

● The classification structure in the 2009 and 2011 EAs for non-nursing staff were drawn from a former New South Wales State Award; being the Charitable, Aged and Disability Care Services (State) Award (the NSW NAPSA) and the application of that structure within the sector within NSW was consistent with the existing classifications;
● The application of the classification structure in the manner now applying with Southern Cross Care was not disputed by other unions including the Health Services Union of Australia which had an interest in the proceedings but did not choose to intervene or support the BHTEU’s approach;
● Upon approval of the 2009 EA, by agreement with the BHTEU, the employees who were at that time classified as Personal Care Workers under an award operating in Broken Hill 2 were transitioned and reclassified as CSE2s under the 2009 instrument;

The BHTEU should be estopped from now arguing to the contrary;

There has been no substantial change in the work and responsibilities of the CSEs so as to now justify a change in that agreed transition; and

● The comparative information relied upon for the approval of the 2009 and 2011 EAs was consistent with the existing classifications.

[26] Southern Cross Care contends that:

● Neither of the two residential aged care facilities subject to the BHTEU claim have ever been described or classified as “Nursing Homes” (as at 31 December 2004) under the Nursing Homes Act 1988 (NSW) (the Nursing Homes Act);
● The term “allocated high care places” as defined by the Aged Care Act 1997 (Cth) (the Aged Care Act) is not the same as a person (resident) who is assessed as high care for the purposes of the Aged Care Funding Instrument (ACFI) funding outcomes; and
● The pre-1997 places should not be treated as being allocated high care places, and even if that could be done on a notional basis, there is no evidence to support an assumption that these places were high care residents during the period of the BHTEU claim.

[27] In terms of medication delivery, Southern Cross Care contends that issues such as the support or assistance with, or the delivery of, medication was irrelevant to the classification of the CSEs in this case. Rather the critical elements of the CSE2 definition requires an employee who works individually or in a team environment, is responsible for the quality of their own work and is subject to general supervision, including compliance with documentation requirements as determined by the employer. All three criteria were met here.

[28] The required supervision for a CSE2 was defined as being “general” and in practice this included Nurses watching and/or directing how the work was done, the provision of written policies, directions and training, the use of mediation packs and the recording of medications through a central system, and the authorisation (by Nurses) for the treatment of residents.

[29] Southern Cross Care rejects the notion that the work of the CSEs involved them taking overall responsibility for a function within the facility and contends there was no practical difference between those shifts when a Registered Nurse (RN) was on duty in the relevant facility and other shifts when the RN was located in the adjoining facility and contactable by phone. “Function” was said to refer to something akin to responsibility for the recreational activities for residents as opposed to just someone carrying out their role in their classification. Further, it argues that there were no CSEs having responsibility for leading and/or supervising the work of others and the employees rotate and share functions between themselves.

[30] Southern Cross Care relied upon the evidence of the following witnesses:

● Geoffrey Liggins - Manager of Employee Relations with the Aged and Community Services Association NSW and ACT;
● Sharon Williams - Executive Manager of Care with Southern Cross Care;
● Linda Sutherland - Registered Nurse at Aruma Lodge;
● Jane Angell - Registered Nurse at St Anne’s Nursing Home;
● Julie Wilkinson - Registered Nurse at Harold Williams Home;
● Dayna Whitelaw - Facility Manager at Aruma Lodge;
● Tracey Reardon - Facility Manager at Harold Williams Home; and
● William Bourne - Consultant with Bourne4Aging.

5. The position of the BHTEU

[31] The BTHEU also presented a comprehensive case in support of its proposition that the CSEs should be paid according to the higher CSE classifications. Amongst other bases for that proposition, the BHTEU contends that:

● It made it clear during the approval proceedings for the 2011 EA that there were concerns about progression through the CSE classification structure and that Southern Cross Care relied upon the capacity for progression as part of the benefits of the enterprise agreement for the purposes of the approval requirements of the FW Act; 3

The reality of the duties required of the CSEs is found in the duty statements and these reveal responsibilities and functions that are beyond that contemplated by the CSE2 classification;

The facilities cannot function on certain shifts without medication and first aid competent CSEs;

CSE2s are not required to be either medication or first aid competent; and

● Southern Cross Care only rosters medication competent CSEs when no RN is present and the rostering of such CSEs is a ‘designation’ by the employer for present purposes.

[32] The BHTEU also contends that:

● The rostering of CSEs to shifts, where there is no Facility Manager or RN, is designation of overall responsibility for a particular function, that function being worthy of higher duties pay;
● Function in this context should be understood to mean “a particular activity of an organisational unit performing this; 4 and
● The responsibility for the function applies regardless of having an RN at St Anne’s, next door in the case of Harold Williams.

[33] The current classification of the CSEs was contrasted by the BHTEU with arrangements at Harold Williams, when the Facility Manager is not present for any length of time, a CSE steps into that position and is paid for the higher duty.

[34] The BHTEU relies upon the fact that Southern Cross Care has defined duty statements for the CSEs referring to them as “Senior Nurse” or “Nurse A” and “Nurse B” but the employer chooses to require/allow those rostered to allocate the duties as they see fit. This recognises that there are different and additional responsibilities and as a result, those CSEs on duty, when no Facility Manager or RN is present, should be CSE3s.

[35] In relation to the other specific responsibilities of the CSEs, the BHTEU contends that all RNs choose, with management knowledge and implied approval, to delegate some or all their medication, hospital admission, wound care and doctor’s liaison responsibilities to CSEs. The employer’s witnesses confirm CSE2s cannot be required to perform such duties and responsibilities, but the evidence reveals that they do so in practice. When performing those duties and responsibilities the union contends that CSEs perform work above the CSE2 classification.

[36] The BHTEU contends that Aruma Lodge has always had more than 80% “allocated high care places” and that although Harold Williams does not have 80% “allocated high care places” the ‘Aging in Place’ policy approach applicable to all aged care providers means, at times, 80% of actual places are in fact high care. The Union points to the claim by Southern Cross Care that the recent recruitment of additional RNs was due to increased high care residents and contends that the employer cannot prevaricate on that issue.

[37] The Orders sought by the BHTEU were such that where no Facility Manager or RN is on site, those CSEs on duty be classified as a CSE3, and where the RN “chooses to delegate her duties to the CSE”, the medications CSEs at Aruma/Ross Cherry and Harold Williams be classified as a CSE4 - Level 2.

[38] During the course of this matter there were some changes made to procedures and operating practices and additional RN resources were engaged by Southern Cross Care. The BHTEU contends that Orders (and the determination) should be made on the circumstances that existed when the dispute was raised, not as the employer “attempted to alter its liability”. The Commission should ignore those changes except as evidence of the actual duties the CSE were, and maybe again, required to perform.

[39] The BHTEU relied upon the evidence of the following witnesses:

● Karen Fenton - CSE at Aruma Lodge;
● Vicki-Lee Vasala - CSE at Aruma Lodge; and
● Leanne Rae - CSE at Harold Williams.

6. Observations on the evidence

[40] I found that some of the witness evidence was influenced by the personal perspectives of the witnesses and there was a tendency to generalise based upon that experience. There was also a tendency for management not to be aware of some of the practices that had evolved over time in one or more of the locations and for the CSEs to not have a full understanding of the broader picture on some limited aspects.

[41] These observations are not unique to this matter and I do not consider that any of the witnesses attempted to mislead the Commission and the factual disputes that were evident are largely a product of the above.

[42] Ms Vassala was not called for cross-examination on the basis that the challenge to the evidence of Ms Fenton was taken by agreement between the parties to also apply to her evidence.

[43] Mr Liggins gave evidence about the history of the provisions presently found in the EAs and related matters and this is relevant to the context. However, I have placed no weight upon the evidence regarding the attitude of the other employee organisations given the very indirect nature of that evidence. The evidence of Mr Bourne went to the history of changes made in aged care placements and funding, and this is relevant.

7. The approach to be taken to the construction of an enterprise agreement

[44] Recently a Full Bench of the Commission outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. In The Australasian Meat Industry Employees Union v Golden Cockeral Pty Limited 5 the Full Bench summarised the position in the following terms:

“[41] From the foregoing, the following principles may be distilled:

1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.

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

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

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

5. 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 the interpretation of the agreement.

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

(a) 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;

(b) notorious facts of which knowledge is to be presumed;

7. 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.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

9. 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.

10. 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.” 6

[45] I have applied this approach in determining this dispute.

[46] In Geo A Bond & Co Ltd (In Liq) v McKenzie, 7 Street J said:

"...it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result ... from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award."

[47] These observations are also apt in the present matter and consistent with the approach taken in Golden Cockeral.

8. Findings and consideration

8.1 The context of the 2009 and 2011 EAs

[48] Prior to the commencement of the 2009 EA, the CSEs were classified as Personal Care Workers (PCAs) under the Broken Hill NAPSA. It is also clear that the classification structures in the 2009 and 2011 EAs for the CSEs were derived from the former New South Wales State Award, the Charitable, Aged and Disability Care Services (State) Award 2003 NAPSA 8 (the Charitable NAPSA).

[49] The classification structure in the Charitable NAPSA and the enterprise agreements adopted in this workplace are consistent with a series of template agreements that were negotiated between the ACS and relevant unions at a State level including the Health Services Union New South Wales Branch and what is now known as the Australian Nursing and Midwifery Federation, NSW Branch. 9 The BHTEU was not involved in those State-wide negotiations.

[50] The 2009 EA was approved by the Commission in May 2010, 10 and was assessed against the Aged Care Industry (Broken Hill) Award11 (the Broken Hill NAPSA) for the purposes of the then applicable nodisadvantage test. The 2009 EA had the support of the BHTEU.

[51] The 2009 EA contained a translation schedule for many of the classifications. In the case of the former classification of PCA under the Broken Hill NAPSA, the translation was confirmed as being to the CSE2 classification under the 2009 EA. Translation to the CSE3 and CSE4 classifications was confined to certain grades of Cooks and Gardeners (CSE3), and to Hostel Supervisors and Qualified Head Gardeners (CSE4).

[52] The 2011 EA was negotiated and assessed for approval in the context of the safety net of the Aged Care Award 2010 (the AC Award). The Form F17 filed in support of the application for approval of the 2011 EA identified that rates of pay for CSE2s were higher than the rates of pay for the classifications of Aged Care Employee Levels 1, 2, 3 and 4 under the AC Award.

[53] During the approval proceedings for the 2011 EA, the BHTEU raised concerns about what it described as being an artificial barrier in the CSE classification structure. This was said to include the failure of the employer to designate CSEs to positions that reflected their actual work and some of the other issues now raised in this matter were also touched upon. 12

[54] Deputy President Sams took the view that these were issues best dealt with under the dispute resolution process and were not matters relevant to the approval of the enterprise agreement. 13 The 2011 EA was approved on 16 October 2012 and the Deputy President noted that “after some debate between the parties, Ms Ferry (for the BHTEU) did not press her objection to approval of the agreement.”14

8.2 The facilities and operations of Southern Cross Care

[55] I will outline some general findings about the nature of the facilities before turning to more specific findings about them and the work of the CSEs as relevant to the classification structure in the enterprise agreements.

St Anne’s Nursing Home

[56] St Anne’s Nursing Home is a 120 bed facility with 60 beds upstairs and 60 beds downstairs. The Home is divided into four wards; namely, Cobb, Langford (both located upstairs), Centenary and McClure (both located downstairs), each with 30 beds.

[57] During the afternoon shift, there is one RN upstairs and one RN downstairs or at least one RN and one EN for the Home. During the night shift there is one RN rostered who is based on the ground floor and one EN rostered on the first floor.

[58] During those shifts when there is no RN on duty in the other facilities, Southern Cross Care relies upon the RNs at St Anne’s to provide the nursing supervision of the CSEs. Due to Commonwealth aged care regulations, the St Anne’s RN may not physically leave that Home unattended.

Harold Williams Home

[59] The Harold Williams Home is adjacent to St Anne’s Nursing Home but is separated by a car park. Harold Williams Home is a 40 bed enclosed facility where all residents have a single room with an en suite bathrooms. The Home incorporates the former Broken Hill War Veteran’s Home. At the time of the hearing, the facility was at full capacity and housed 37 ‘high care’ residents and 3 ‘low care’ residents. The residents do not require constant direct care. Should the resident require more care, for example regularly requiring a mechanical hoist which 2 staff are required to operate, then they are generally moved to another facility, such as St Anne’s.

[60] There are three staff shifts that operate at Harold Williams Home; Day shift (7:00am to 3:30pm), Afternoon shift (3:30pm to 00:00am) and Night shift (00:00am to 7:00am). The CSE2 staff who are on duty at the Harold Williams Home are:

● Day shift - up to four CSEs;
● Afternoon shift - two CSEs, with an additional short shift for one CSE (5:00pm to 9:00pm); and
● Night shift - two CSEs.

[61] There is currently a RN present at the Harold Williams Home during each day shift, including weekends and public holidays. As from August 2014, there is also now a RN that works most of the afternoon shift (finishes half an hour before the end of the shift). The Home also has one Enrolled Nurse who works each afternoon shift on weekends and other shifts as required. There is no RN on the night shifts and the CSE’s are required to contact the RN at St Anne’s if they require advice.

Aruma Lodge

[62] Aruma Lodge is located approximately 7 kilometres by road from the Harold Williams Home and St Anne’s. Aruma Lodge contains two wings, namely the Main Wing and a closed (secure) dementia wing called the Ross Cherry dementia wing. Ross Cherry is adjacent to the Main Wing. The Main Wing contains beds for 48 residents, most of who are classified as ‘high care’ for funding purposes. There are presently 47 permanent residents and one respite bed in the Main Wing. The Ross Cherry wing contains beds for 10 residents for dementia and “wandering” patients, all of whom are classified as ‘high care’ for funding purposes. All rooms are single rooms and most rooms have shared bathroom facilities.

[63] There is a nurses’ station within the Aruma building and entry is restricted to staff and the station is secured by a coded entry.

[64] There are three staff shifts that operate at Aruma; Day shift (7:00am to 3:00pm), Afternoon shift (3:00pm to 11:00pm) and Night shift (11:00pm to 7:00am). The level of CSE staff who are on duty at the Aruma Lodge Main Wing are:

● Day shift - up to six CSEs;
● Afternoon shift - three CSEs; and
● Night shift- one CSE.

[65] The CSE staff who are on duty at the Ross Cherry Wing are:

● Day shift - up to two CSEs;
● Afternoon shift - one CSE; and
● Night shift - one CSE.

[66] The Ross Cherry Wing is closed off from Main Wing until 23:10 when the door between that wing and the Main Wing is disarmed and opened. During those times, staff work across both wings. During the day shift and afternoon shift the door between the two wings is locked.

[67] Prior to 31 August 2014, Aruma Lodge had one RN rostered Monday to Friday from 8:00am to 4:30pm. After 31 August, there has been an additional RN rostered from 3:00pm to 10:30pm from Tuesday to Saturday. Outside of these times, the staff at Aruma Lodge need to contact the RN at St. Anne’s for nursing advice and instruction.

8.3 The classification of the facilities and the beds at Harold Williams and Aruma Lodge

[68] This issue arises in the context of the criteria for CSE4 - Level 2. Amongst other requirements, a CSE4 - Level 2 is required to “deliver medication to residents in residential aged care facilities; previously defined as Nursing Homes (as at 31 December 2004) by the Nursing Homes Act 1988 (NSW); or in which more than 80% of places are "allocated high care places" as defined in the Aged Care Act 1997 (Cth).”

[69] Most of the CSEs provide medications to residents, and assist them to take or apply the medications in both Harold Williams and Aruma Lodge. They are both residential aged care facilities. I assume, for the purposes of this discussion, that at least some of the work undertaken by the CSEs could be described as “delivering” medication to residents within the meaning of the CSE4 classification description.

[70] Prior to the Aged Care Act 1997 (Cth) aged care facilities were generally classified as being Nursing Homes or Hostels. Hostels provided low care to residents whereas Nursing Homes provided a higher level of nursing care. This traditional demarcation between Nursing Homes and Hostels was also evident in the establishment of the Charitable NAPSA and forms part of the relevant context for the consideration of the meaning to attributed to the classification provisions.

[71] It was not clear until the point of final submissions that the BHTEU contends that both Harold William Home and Aruma Lodge fit the definition of being a Nursing Home as defined. There is evidence, that I accept, that both facilities were low care facilities; being the equivalent of Hostels; that is, non-Nursing Homes. There is also evidence that there are certain staffing requirements applicable to the need for RNs to be physically on the premises at all times, which does not apply to Harold Williams Home or to Aruma Lodge. This is consistent with these two facilities not previously being considered to be, or treated as, nursing homes.

[72] The Nursing Homes Act 1988 (NSW) has been repealed. The term Nursing Home was defined in s.3 in the following terms:

“ ‘nursing home’ means premises at which residents are provided with nursing care for fee, gain or reward, being residents:

(a) who are recuperating from illness or childbirth and who require nursing care, or
(b) who require nursing care on account of age, infirmity, chronic ill-health or other condition,

but does not include:

(c) an institution conducted by or on behalf of the State, or
(d) a public hospital within the meaning of the Health Services Act 1997 or any health service provided by a public health organisation within the meaning of that Act, or
(f) a private hospital or a day procedure centre within the meaning of the Private Hospitals and Day Procedure Centres Act 1988 , or
(g) a residential rehabilitation establishment licensed under the Drug and Alcohol Rehabilitation Establishments Act 1987.”

[73] The Nursing Homes Act also provided for registration and licensing of nursing homes and it is evident that the emphasis was upon the provision of nursing care as opposed to resident care that might otherwise be provided in hostels.

[74] I note also that Hostels were regulated through the now repealed Aged or Disabled Persons Care Act 1954 (Cth). 15 Further, hostels were defined under that Act16 in a manner that excluded Nursing Homes, thereby confirming the traditional demarcation that has existed prior to more recent times.

[75] I will deal with the allocated placements relevant to the two facilities shortly. However, the absence of allocated high-care placements at the time that the AC Act came into force is consistent with the two facilities not being Nursing Homes at that time.

[76] I am satisfied that neither of the two facilities were Nursing Homes (as at 31 December 2004) as defined by the Nursing Homes Act 1988 (NSW).

[77] The Aged Care Act 1997 (Cth) does not directly define allocated high care places, rather it establishes a process under Part 2-2 of that Act whereby the Commonwealth Government establishes a range of funded allocations and the aged care providers make application for such allocations. The allocations are made on the basis of various subsidies and it is these subsidy levels that contemplate high care and low care placements (amongst others) for that purpose.

[78] The AC Act took effect from 1 October 1997. From that date, new bed placements in residential aged care facilities were "allocated" as either high care or low care for resident admission purposes. Such allocations require that if the placements were allocated as high care, a resident admission must also be high care, and the same applies to a low care placement. Any existing bed placements that were operational, or approved in principle prior to 1 October 1997, became "pre-1997 aged care places" that could be used for high care, or for low care, resident admissions at the discretion of the relevant aged care provider.

[79] As alluded to above, there are also related but different processes for the assessment of residents. Prior to placement, the relevant Aged Care Assessments Team (ACAT) assesses the resident and this assessment defines their eligibility for the allocated places. After admission, and during their time at the facility, the resident is assessed against the Aged Care Funding Instrument (ACFI). It is this assessment that defines the funding (subsidy) that attaches to that resident during their stay. In the context of the current aged care policy approach (known as Aging in Place), the objective is to have the residents stay within the same facility as their health declines. This means that residents will, in many cases, go from low care to high care during their stay with the aged care provider. Some residents will also be admitted as high care at that time. These changes do not impact upon the original aged care placement assessment.

[80] Harold Williams Home has 13 allocated low care places and 27 pre-1997 aged care places. At the time of hearing this matter, there were 37 residents that were assessed under the ACFI as being high care and 3 as low care.

[81] Aruma Lodge has 10 allocated low care places and 48 pre-1997 aged care places. The Main Wing contains beds for 48 residents, most of who are presently classified as ‘high care’ for funding purposes. There are presently 47 permanent residents and one respite bed in the Main Wing. The Ross Cherry wing contains beds for 10 residents for dementia and “wandering” patients, all of whom are presently classified as ‘high care’ for funding purposes.

[82] There is no evidence before the Commission about the assessment (high or low care) made of the present residents upon admission or what the relative composition of high care residents has been during the life of the 2009 and 2011 EAs.

[83] The BHTEU contend, in effect, that the expression “allocated high care places” should be applied such that all residents assessed as being high care are included for the purposes of the 80% benchmark. Southern Cross Care contend, in effect, that the expression should be applied as being a reference only to those places that are formally allocated and designated as high care places under the AC Act.

[84] When considered as a whole, (and leaving aside for the moment the further question of qualifications), it is evident that the criteria for CSE4 - Level 2 is concerned with employees who are required to deliver medications in the context of certain aged care facilities. That is, it is the nature of the facility that is being considered. The facility must be either a Nursing Home (as earlier defined), which does not apply to either of the facilities, or an aged care facility in which more than 80% of places are “allocated high care places” as defined in the AC Act.

[85] It is a reasonable inference that the underlying purpose of the definition is to recognise that in certain facilities the actual requirements upon the employees will be at a different and higher level due to the nature of that facility. In that light, an approach that recognised the nature of the residents and the consequential demands upon the staff has much to recommend it.

[86] However, the actual terms of the classification structure refer specifically to the places (not residents) and whether they are allocated high care placements under the AC Act. The difficulty with BHTEU’s contention is that this would require the Commission to put aside the actual words of the provision and to adopt an approach that would vary from time to time depending upon the changing composition of the residents. Given that the focus is upon the nature of the facility and the places in the facility, and it would be highly undesirable for the classification of employees to change depending upon variable composition of the actual residents, I do not consider that the provision should be applied in that manner.

[87] Further, the ACFI classification as a high care resident is not the equivalent of the allocated high care places under the AC Act. The traditional distinction between the former Nursing Homes and Hostels, which has informed the development of the classification structure, is also more consistent with the approach contended by Southern Cross Care.

[88] Based upon the evidence before the Commission, neither the Harold Williams Home nor Aruma Lodge have more than 80% of places that are allocated high care places as defined in the AC Act.

[89] I would observe that given more recent changes in Aged Care arrangements, it may be time to revisit the approach underpinning the classification structure that is widely adopted in New South Wales, at least as it applies in the circumstances of Southern Cross Care. However, this is beyond the scope of this present matter.

8.4 The work of the Care Service Employees and their supervision

[90] At the outset, it is important to recognise that the work of the CSEs is essential to the care of the residents and the effective operation of the two facilities concerned. It is also evident from the material before the Commission that the CSEs within Southern Cross Care are dedicated to that care.

[91] The role of CSEs at Southern Cross Care can generally be described as undertaking the personal care of aged and infirm residents at various facilities in Broken Hill. The residents are at a stage in life where they can no longer live independently and require varying degrees of assistance in their day to day lives. CSEs provide much of this personal care to the residents in line with their individual care plans and work under the general authority of RNs and facility management, who ultimately have clinical responsibility for the residents. CSEs have no authority to change prescribed treatment, must not give injections, and work strictly in line with care plans.

[92] The basic CSE daily role involves making beds, cleaning and tidying resident rooms, changing linen, arranging clothes, assisting with showering, toileting, attending to residents personal hygiene needs, assisting at meal times, generally anything the resident would otherwise do in their own home, but now need assistance. CSEs also undertake medication rounds generally by using pre-packed medications as prescribed by treating doctors and packed by a pharmacist.

[93] The position description for the CSE2 at Southern Cross Care is as follows:

“Classification: CARE SERVICE EMPLOYEE - CARE STREAM
Accountable to: FACILITY MANAGER I REGISTERED NURSE
Classification: GRADE 2
Award: SOUTHERN CROSS CARE (BH) LTD NSWNA & The BHTEU AGREEMENT 2011 - 2014
Position location: ARUMA LODGE HOSTEL/HAROLD WILLIAMS HOME

Care Service Employee Grade 2 - Care Stream means an employee with relevant experience who works individually or in a team environment, and is responsible for the quality of their own work, subject to limited supervision, including compliance with documentation requirements as determined by the employer.

Indicative Tasks: (lnclude but are not limited to)

1. Clinical Care

● Assist in the care of residents within the guidelines of the Resident's Nursing Care Plan and specific instructions by the Registered Nurses on Duty or Facility Manager.
● Interpret care plan information in the provision of care to residents.
● Review the effectiveness of the care plan and evaluate the Resident Care Plan as required.
● Monitor any deviation in resident well-being and care needs and report any changes to the Registered Nurse.
● Promote an individualised model of care incorporating continuous lifestyle choices for residents within a homelike environment.
● Be conversant with the Charter of Residents Rights its implications and implementation in provision of care.
● Actively promote and provide a holistic approach to care, focusing on individual needs and rights whilst demonstrating empathy and respect and being mindful of their dignity.
● Under direction of Registered Nurse, deliver personal care to assigned Residents and perform general duties.
● Perform simple wound dressings under the direction of the Registered Nurse, report wound progress to Registered Nurse and document actions accordingly in Residents' Medical Record.
● Ensure compliance with Infection Control guidelines and practices at all times.
● Undertake all activities in relation to resident care and other assigned duties.
● Responsible to the Residents for:

○ Answering resident's nurse calls promptly.

○ Personal care and comfort in accordance with condition and duty statement.

○Maintain toileting and pressure care regimes

○Oral and dental hygiene including denture care

○Ensuring that there is clean clothing for each resident in his/her locker and assist to dress as required.

○Maintain adequate fluid and dietary intake assist with meals. record as required.

○Collecting urine or other specimens as required.

○Linen: Removing solids and sorting dirty linen before taking it to the laundry. Tidying linen cupboards.

○Assist and support residents with medication if medication competence assessed by Registered Nurse.

○Taking blood pressures.

○Taking temperatures.

○Recognise the signs of both Hyper and Hypo- Glycemia and reporting to Registered Nurse immediately.

○Oxygen Therapy under the direction of Registered Nurse.

○Blood sugar level checks

○Pulse Checks.

○Report and respond appropriately to any changes in the residents condition directly to a Registered Nurse for assessment.

2. Documentation and Administration

● Directly contribute to the development of care plans, based on assessment outcomes in consultation with the Registered Nurse and other members of the care team.
● Contribute to the development of plans that assist in maintaining the independence of residents and involve the family in care giving.
● Maintain an information system that supports and enhances the provision of accurate and reliable data and accurate documentation to the resident, the Facility, Aged Care Funding Instrument and other legal and professional requirements.
● Complete documentation in a timely manner within documentation guidelines.

3. Teamwork

● Work collaboratively with the RN, EN's and Care Services Employees concerning care management.
● Liaise with family and other health personnel to ensure coordination of care for optimum resident outcomes.
● Correct uniform to been worn at all times, work areas kept tidy, punctuality maintained and all duties satisfactorily completed by end of shift.
● Organise workload to facilitate planned care for individuals and groups.

4. Professional/Personal Development

● Evaluate own practice by performance appraisals that include competencies.
● Attends training and development programs.

... ...

Qualifications:
School Certificate/or equivalent

Knowledge Requirements:

● Knowledge of Southern Cross Care (Broken Hill) Ltd Mission, Philosophy and Values.
● Demonstrated knowledge or ability to acquire knowledge of personal care in relation to Aged Care and Continuous Improvement and an understanding of the Accreditation process.
● Demonstrated knowledge of differing social, spiritual and cultural needs of residents.

Skill Requirements:

● Demonstrated ability to evaluate and monitor quality, service and care practices and relate to Resident outcomes.
● Demonstrated high level interpersonal and communication skills.
● Demonstrated ability to provide individualised rather than task oriented care.
● Demonstrated ability and willingness to work individually or as a team member with minimum supervision.

● Demonstrated ability to manage workload and perform effectively under pressure.
● Problem-solving and conflict management skills.

Reporting Relationships:

● Care Service Employee Grade 2 report directly to and take direction from the Registered Nurse or designated Team Leader (if applicable) in the first instance. Also accountable to the Facility Manager and Executive Manager of Care.

... ...

1. Qualifications and Experience:

● Certificate III in Aged Care (desirable but not essential) or a willingness to undertake.
● Qualifications relevant to Aged or Community Care and experience will be highly regarded.

○ Experience in Aged care desirable
○ Empathy with aged people
○ Commitment to providing quality care to aged resident
○ Excellent communication skills
○ Commitment to continued professional development

2. Thinking Competencies:

● Demonstrated alignment with the philosophy of resident focused care which supports dignity, independence and informed consultative decision making.

3. Interpersonal Competencies:

● Ability to contribute to the team as demonstrated through excellent interpersonal and communication skills.
● Proven capacity to contribute as a committed team member for the achievement of common goals.

4. Achieving Competencies:

● Demonstrated ability to evaluate and monitor quality, service and care practices and relate to Residents outcomes.
● Proven commitment to providing on-going high levels of customer service.

5. Other:

● Federal Police Clearance must be attained and any future charges or convictions that could potentially affect your role within Southern Cross Care (Broken Hill) Ltd must be disclosed

Job Requirements

Physical
Kneeling/squatting: tasks involve flexion/bending at both knees and ankles, possibly at the waist in order to work at low levels.
Hand/Arm movement: tasks involve use of the hands/arms - eg stacking, reaching, typing, mopping sweeping, sorting and inspecting.
Bending/Twisting: tasks involve forward or backward bending or twisting at the waist.
Reaching: tasks involve reaching overhead with arms raised above shoulder height or forward reaching with arms extended.
Walking/running: tasks involve forward or backward bending or twisting at the waist.
Lifting/carrying: tasks involve raising/lowering or moving objects from one level/position to another usually holding an object within the hands/arms.
Light lifting (0-9kg), medium lifting (10-15kg), heavy lifting above 16kg (note mechanical lifters are to be used for heavy lifting).
Restraining: tasks involve restraining residents.
Pushing/pulling: tasks involve pushing and pulling objects away from or towards the body. Also includes striking or jerking.
Grasping: tasks involve gripping, holding, clasping with fingers/hands.
Sensory Demands
Sight: tasks involve use of eye (sight) as an integral part of task performance.
Hearing: tasks involve listening as an integral part of task performance.
Smell: tasks involve smell as an integral part of task performance.
Touch: tasks involve use of touch as an integral part of task performance.
Psychological Demands
Tasks involve interacting with distressed people.
Tasks involve interacting with people with dementia, disabilities.
Chemical
Tasks involve working with liquids that may cause irritations if in contact with skin, eg dermatitis, skin irritations from constant hand washing.
Manual Handling
Tasks involve manual handing tasks.
Biological
Tasks involve working with blood/blood products/body fluids.”

[94] There is also a position description for a CSE3 at Southern Cross Care and this almost completely reflects the definition with the 2011 EA. I have not set it out in the decision below however I have had regard to the fact that there is a position description in place that reflects the CSE3 classification within the enterprise agreement.

[95] Duty statements exist at each of the facilities. Some of the duty statements refer to “Nurse A” and “Nurse B” however it is common ground that these are intended to refer to the care workers and do not imply nursing duties or positions. There are different duties depending upon the shift involved, with the more active duties being performed on day and afternoon shifts, given the normal sleeping cycle of residents. During the relevant shifts, the “A” carer will undertake the distribution of the medications. 17 Where more than one of the CSEs is medication competent, which is the case most of the time, the CSEs elect amongst themselves who will undertake the “A” role.

[96] I do note that one of the Duty Statements refers to “Nurse A” as “Senior Nurse - responsible to contact the RN as required”. 18 There is however no reliable suggestion in the document or in the evidence, that this notation brings with it any actual seniority or supervisory responsibility.

[97] Most of the medications in which the CSEs have a responsibility are contained in Webster packs. These are pre-packed with the relevant medications and instructions for their administration are contained in the care plans and other written instructions. In general terms, medications are provided at set times according to the routines of each facility. The overall administration of medication is the responsibility of the relevant RNs who must be consulted and advised if pain relief medication is provided outside of the programmed medication times.

[98] Some CSEs on night shift also have a role in auditing the Webster packs when supplied by the pharmacy and reporting any variances. This role changed in September 2014 with the appointment of an additional RN resource.

[99] There are some medications, such as creams and eye drops, that are not contained in the Webster pack system and the CSEs have a role in administering these items to residents. On some limited occasions, liquid Ordine (a form of morphine), has been drawn up and given to a resident by the CSEs, under specific instruction of an RN or Doctor. During 2014, Southern Cross Care confirmed that this practice was not to continue. 19

[100] There are some other Schedule 8 medications, which are subject to additional regulations, that are contained in the Webster packs and which may be pre-authorised by a Doctor. Even in those circumstances, the CSEs must obtain permission from the RN to given the medication to the resident. When an RN is not on site, this will involve the CSE observing the resident, ringing the RN and explaining the observations, and making a record of the mediation that has been given.

[101] There is evidence to support the notion that some of the CSEs have on occasions done more than simple wound dressings. I accept that these are exceptional and that generally the CSEs are not required to do so as part of their normal duties. That is, if the work required is beyond the simple dressing, the CSE can refer the matter to an RN, ring the RN at St Anne’s and seek advice, or call an ambulance if the circumstances warrant that course of action. However, some CSEs undertook additional training and were, at least for a period, called upon to do more extensive wound work. I also note that the CSEs must make an initial assessment and decision to call the RN when a RN is not physically present in the facility.

[102] There is an “After Hours Hostel On Call Procedure” in operation and this provides as follows: 20

“SOUTHERN CROSS CARE (BROKEN HILL) LTD

AFTER HOURS HOSTEL ON CALL PROCEDURE

The following procedures should be followed if assistance is required or advice sought when Care Service Employee (Care Stream) (CSEC) staff are working without a Registered Nurse on site (after hours, weekends and Public Holidays).

General/Nursing Advice
The Registered Nurse must be contacted when any of the following occur
(Specialised Nursing Care):
1. PRN Medication that requires RN assessment to be given eg. S8 drugs. Have information ready to give RN regarding the pain assessment. Have Medication chart handy so RN can be told what other meds have been given including last dose times.
2. Oxygen Therapy
3. Changes or re-assessment of/to Complex Wound Management
4. Palliative Care Assessments
5. Changes to bowel management or enemas etc.
6. And all others as per the Specialised Nursing Care Needs Procedure

IT IS ESSENTIAL ALL PHONE CALLS TO AN RN ARE DOCUMENTED IN THE RESIDENTS PROGRESS NOTES INCLUDING INSTRUCTIONS

● Contact St Anne’s Nursing Home and ask to speak to the Registered Nurse on duty, discuss your concerns with her/him - there is an added tool for the Registered Nurse to use to if they would like to assess a resident. This is Skype which is located on the Samsung tablet.
● Ambulance Service personnel can assess a resident and decide if they need to be transferred to the Emergency Department at the Hospital. If they assess the resident as not in need of transfer the RN must be contacted for advice/assessment
● if these avenues do not help your problem and you consider it important call the EXECUTIVE MANAGER CARE via mobile phone. Number listed on notice board.

Medical Advice

● IN A MEDICAL EMERGENCY RING THE AMBULANCE AND TRANSFER THE RESIDENT TO HOSPITAL.
● If Medical advice is required firstly contact the residents doctor, if unable to do this ring the EMERGENCY DEPARTMENT at the hospital - talk with the RN/Doctor about your concerns OR

Maintenance Advice
If after hours maintenance services are required at the facility contact:
Maintenance supervisor - **** ***
If unable to contact Maintenance supervisor ring: **** ****

If unable to contact **** **** ring:
**** *** (Executive Manager of Infrastructure and Projects) **** *****

Death of a Resident
In the event of a death that does not require the ambulance to be called~ The GP should be called. If the GP is not available the registered nurse should be contacted to complete an extinction of life form. If the RN is unable to be contacted the Executive Manager Care (EMC) should be contacted. If the Extinction of life form cannot be completed the Police must be called.

Missing Resident (Separate Procedure)
Ring the Police Service when Resident is confirmed missing
Facility Manager and the EXECUTIVE MANAGER OF CARE - **** **** to be notified after Police have been contacted.
The Accountability Principles 1998 have requirement for approved providers to notify the Secretary of the Department of Health and Ageing in the case of unexplained absences of residential care recipients where such absence has been notified to the police.
After the provider has notified the missing resident's family and the police it should then notify the Department.
The number to call is 1800 *** *** .
The notification should be made as soon as practicable, and in any case within 24 hours of reporting to police.

References
Section 62-1 of the Act and new section
1.14A of the Accountability Principles 1998 .

Fire, Flood or Major Building Damage
**** **** (Executive Manager of Infrastructure and Projects) **** **** Maintenance supervisor - **** ****
If unable to contact **** **** ring:
**** **** - **** ****
If necessary the EMIP will contact CEO- **** **** and EXECUTIVE MANAGER OF CARE - **** ****.” 21

[103] In line with this procedure, contact with the RNs at St Anne’s is generally via phone, with a general number and a list of various ward numbers provided to staff. There have been some difficulties reported by CSEs in being able to directly contact the RNs on some occasions. This was reviewed in 2013 and I find that the telephone system, including the use of phones that are carried by the RNs when on duty, now means that in most cases the CSEs can contact a RN when required. There is also access to other RNs or qualified management as an alternative.

[104] Given the absence of an RN at the Harold Williams Home and Aruma Lodge Hostel at times, should a resident be in extreme pain or have a medical episode, the CSEs are required to call the RN at St Anne’s for direction. This is undertaken by telephone and in the event that a RN cannot be located, the CSEs are able to call management. However, in an emergency situation, the CSE will by necessity be the first responder and may need to make the decision to call an ambulance.

[105] Outside of those hours where the management and/or RNs are on duty, CSEs (as the only staff on duty) are required to initially respond to occurrences such as fire alarms, intruders and damage to property. At other times, these would be initially dealt with by management or one of the RNs.

[106] I also note that there is also evidence that the timing to unlock the (public access) doors at one of the facilities changed during the hearing of this matter. This may be important in terms of the workload of the CSEs who were required to be getting up and showering some resident at the time in question. However, it is not significant in terms of the issues raised by the various levels in the classification structure of the EAs.

[107] The resident care plans, including medications, are recorded in the “Lee Care” system which is a computer based and accessible by all relevant staff. The RNs at St Anne’s are able to access the Lee Care material when providing instructions to the CSEs at the other facilities when required. Southern Cross Care have also introduced Skype that could be utilised between the facilities however to date this has not been widely used and some of the CSEs are not familiar with its operation.

[108] Non-urgent contact between the CSEs and an RN can also be made through the Lee Care system.

[109] In terms of “as needed” pain relief medications (PRN) when no RN is physically on site, the RN must still authorise the medication. The CSE concerned must contact the RN and either confirm the medication details for the resident or fax over a copy of the medication chart, to the extent that details are not accessible in the Lee Care system. Under their position descriptions CSE’s are not required to provide medications to residents unless assessed as being medication competent they and are not required to attend medication competency training. However, if they become medication competent, the CSEs are then required to administer medications and in practice, Southern Cross Care could not operate with the existing staffing without a significant proportion of the CSEs being medication competent.

[110] The handling of Schedule 8 medications has changed within Southern Cross Care during the course of 2014. As a result of changes in the classification of residents, more formal registration and accounting of these medications now takes place for all residents, not just those formerly classified as high care. This decision was taken by Southern Cross Care upon accreditations advice rather than as a result of any direct regulatory change. Further, as a result of that change, two CSEs must be present when an R8 medication is provided to residents and the cabinets in which the medications are kept is locked and the CSEs no longer have keys to that storage in the normal course. However, when no RN is on duty within the facility, a CSE may be instructed by an RN from St Anne’s to obtain the relevant key and provide the medication to the resident concerned.

[111] When a CSE provides a PRN medication to a resident as directed by the RN from St Anne’s (or from their own facility), the CSE is responsible for recording the medication into the Lee Care system.

[112] In terms of the provision of medications, the CSEs are considered to be individually accountable to the RN and their employer, for their actions in that regard. 22 They do so however on the express instructions of the RN.

[113] There is a level of judgement in the role of the CSEs at all times. They are dealing with individuals who are in residential care. By definition, when a RN is not physically on site, that judgement needs to include whether the circumstances warrant making a call to the RNs at St Anne’s (or to management) or calling an ambulance in the case of a serious incident. This happens to a degree when a RN is on shift but not accompanying the CSE at the time, however when a call must be made to the other facility, the level of judgement is different to some extent.

[114] Despite some assistance from technology, during these times, the CSEs must, in effect, be the eyes and ears of the RN and pass on observations when seeking instructions. This also applies when monitoring residents when they have been given medication.

[115] During the night shift, the CSEs also need to attend to any visitors, relatives or Doctors whereas at other times, there are a range of staff that deal with such attendees. In those circumstances, the CSEs make discretionary decisions within established guidelines using their common sense and experience.

[116] In some circumstances some of the CSEs undertake a role with the staff rosters for the CSEs. This includes ringing around for a replacement at short notice from the list of employees, making some changes amongst themselves and in some cases at Aruma Lodge, putting the roster together in the absence of a Manager. 23

8.5 Qualifications and training

[117] Southern Cross Care does not generally keep a formal record of all of the training and qualifications of its CSEs. It takes this approach on the basis that it does not require the CSEs to hold certificate qualifications in Aged Care. I will return to this aspect shortly.

[118] Based upon the evidence that is before the Commission, there are five potentially relevant qualifications or competencies held by the CSEs. There is some indirect evidence about the extent of qualifications held by the employees and some direct evidence from those CSEs who gave evidence. Southern Cross Care also provided details of its Training Register 24 however this needs to be understood in the context of the observations above.

[119] Based upon the evidence before the Commission it is apparent that all but one of the CSE’s have been trained and are recognised as being medication competent. This means that Southern Cross Care expects these employees to provide medications to the residents as discussed earlier in this decision. The employer does not require all CSEs to be medication competent. However, it is clear that at least one CSE having that competency needs to be on each shift where an RN is not present, and in practical terms, this requirement extends to each shift given the role of the CSEs in that regard.

[120] It is common ground that one CSE has a certificate in Dementia and one has the training as a Fire Safety Officer. Either 11 or 12 of the CSEs have a Certificate IV in Aged Care (Certificate IV). Some of the CSEs, between 11 as recorded by the employer and 22 as asserted by the BHTEU, hold a Certificate III in Aged Care (Certificate III).

[121] Some of the CSEs have also undertaken specific training in wound care. This included three CSEs that attended an external training course during 2014 and general internal training was provided to some other CSEs over time. After the 2014 training, there was an indication that only the relevant CSEs were to undertake more complex wound dressings. During the course of the hearing of this matter, management of Southern Cross Care confirmed that only qualified nurses were to undertake complex wound dressings.

[122] Under the classification structure, the question of qualifications potentially arises in two contexts. The definition of a CSE3 refers to an employee holding either a Certificate III or other appropriate qualifications/experience acceptable to the employer. This is part of the criteria and operates in conjunction with the certain responsibility requirements.

[123] It is clear that many of the CSEs have Certificate III or IV qualifications and that these are sufficient to meet the qualification requirements for those employees in terms of CSE3.

[124] The definition of CSE4 - Level 1 refers to Certificate IV and CSE4 - Level 2 refers to various qualifications including Certificate III, Certificate IV, medication module - Provide Physical Assistance with medication or others as varied by the National Vocational, Educational and Training body. In each case, (other) qualifications acceptable to the employer are contemplated.

[125] It is apparent that many of the CSEs hold the relevant qualifications.

[126] In each case however, it is necessary to consider the other requirements of each of the classification criteria.

8.6 The proper application of the classification provision of the enterprise agreement

[127] Above, I have dealt with a number of the elements that bear upon the application of the classification structure to the CSEs. I have done so to set the basis for that exercise however it is important to recognise that it is the terms of schedule AI.1 as a whole, in the framework of the 2009 and 2011 EAs and the broader context, which must be considered.

[128] In particular, each of the classification levels are designed to provide a progression in responsibilities, duties, and in most cases, qualifications. Each of those levels provide indicative duties that inform the intended application of the structure.

[129] Consistent with the approach discussed earlier in this decision, the provisions of the classification structure are not to be applied in a narrow or pedantic manner. They are also be interpreted in the context in which they were developed, reflecting the needs and circumstances of the employer and the employees in the sector and enterprise where they were developed and applied.

[130] I leave aside for present purposes the CSE New Entrant classification and the maintenance stream. In addition to the various qualification requirements (which I deal with elsewhere) the overall structure of the CSE classifications is a follows.

[131] The CSE1 classification contemplates employees providing assistance to residents in the form of simple personal, “domestic” and hygiene tasks under limited supervision and personal care needs under direct supervision.

[132] The CSE2 classification contemplates employees working under general or limited supervision (of a CSE3 or higher - including potentially nurses and management) and providing a wide range of personal care services to residents including assisting and supporting residents with medication utilising medication compliance aids, simple would dressing, attending to routine urinalysis, blood pressure, temperature and pulse checks, and general monitoring of residents including those with diabetes. This is to be undertaken within legislative guidelines and resident’s care plans, and a CSE2 may be required to assist in the development of those plans and other activities for residents.

[133] The CSE3 classification contemplates the employee being designated by their employer to have responsibility for leading and or supervising the work of others or being designated by the employer (to work individually or with minimal supervision) to have overall responsibility for a particular function. The nature of work functions comprehends coordinating and directing the work of others, scheduling work programs on a routine basis and developing and implementing the care plans for residents.

[134] The CSE4 classification at Level one contemplates employees having the requisite qualification (Aged Care IV or others acceptable to the employer), being designated to take responsibility leading and supervising the work of others (beyond that contemplated by CSE3) and exercising managerial functions in relation to the operation of the care service. Alternatively, under Level 2, an employee is required to deliver medications to residents in certain aged care facilities. These employees may also be required to perform the duties of a CSE4 - Level 1 and this tends to inform the nature of the responsibilities at that classification level.

[135] CSE5 contemplates employees having overall responsibility for the supervision of the care service such as the overall Supervisor of a facility.

[136] The claim by the BHTEU raises the prospect that either CSE3 or CSE4 are appropriate. The CSEs are all presently classified as CSE2.

[137] It is convenient to initially deal with CSE4 and to then confirm the intended scope of the CSE2.

[138] I have already found that the nature of two facilities concerned is the focus of CSE4 - Level 2 and that neither of the two facilities concerned falls within the scope of that definition. Although there is a basis that might lead to a review of those definitions, this is not an avenue open to the Commission as part of this application.

[139] In terms of CSE4 - Level 1, this contemplates the employees having leadership or management responsibilities and envisages coordinating and directing the work of others well beyond anything contemplated for the CSEs at Southern Cross Care.

[140] On that basis, even if some of the employees hold the relevant qualifications from time to time (which they do), and assuming that the CSEs are delivering medications within the meaning of the CSE4 classification criteria, the CSEs concerned are not entitled to be classified as a CSE4 under the enterprise agreements.

[141] I turn now to the scope of the CSE2 classification. Fundamentally, I consider that the work of the CSEs at Southern Cross Care falls within the scope of that definition. That is, the nature of the work, the responsibilities and supervision arrangements are contemplated for a CSE2 and consistent with the stated and actual scope of work to be undertaken at that level.

[142] In that context I have considered the nature of the supervision that is provided when the CSEs are operating on those shifts when a RN (or management) are not physically on the premises and the coverage is provided by the RNs at St Annes. The CSE2 classification contemplates the work being undertaken within guidelines and documented procedures under “general supervision”. In the indicative tasks this supervision is described as being under “limited supervision”.

[143] When considered in context, these terms denote that the supervision need not be immediately present when the work is performed and is general in nature. The supervision must however be real and may come from procedural guidance and access to someone who may make the decisions that are beyond the scope of written procedures and the level of responsibility appropriate for the CSE2s.

[144] In Transport Workers’ Union of Australia v Toll Dnata Airport Services 25 Sams DP was considering the meaning of the phrase “without immediate supervision” in the context of ramp staff at an airport where their supervisors were some kilometres away from the actual work.

[145] The Deputy President found:

“[54] The Macquarie Dictionary defines ‘immediate’ as:

‘4. Having no object or space intervening; nearest or next: in the immediate vicinity’; It defines ‘supervise’ as:
‘to oversee (a process, work, workers etc) during execution or performance; superintend; have the oversight and direction of.’

[55] Given the above definitions, it does seem to me to be very difficult to sustain an argument that employees who are located 3-4 km from their direct supervisors, are within the immediate vicinity of the persons who are overseeing them. Thus, while the adjective ‘immediate’ might not strictly apply to the waste and water work here in dispute, the word must be read in conjunction with ‘supervision’. When viewed in this light, the force of Mr Magee’s argument as to the actual nature of the supervision, becomes obvious. There can be no doubt that, for all practical purposes, the waste and water employees are under the oversight and direction of the Ramp Supervisors. Any problems, such as changed bay allocation or other directions from Virgin’s operations, are not decisions undertaken independently by the employees themselves in the course of their duties; rather they follow the directions of others in the performance of these duties. In my view, this is a fundamental difference to working ‘without immediate supervision’. In any event, I am bound to follow the agreement interpretation principles (referred to earlier) which require the Tribunal to consider the words in their context, and not in isolation. In doing so, I am unable to agree with the Union’s strict literal approach to the interpretation of the words, ‘without immediate supervision’ as applying to the work in dispute.”

[146] Although the relevant expressions in the CSE2 classification definition are “general supervision” and “limited supervision” the above approach is of assistance.

[147] There is some increase in the level of practical responsibility when there is no RN on site. That is, the CSEs must make more of the immediate decisions in terms of whether to make contact with the RN and must to some degree act as their eyes and ears. They do not however take the responsibility for the care and all decisions are made by an RN. The CSEs must also be the first responders to emergencies, whether that be by way of resident emergencies or external factors and the decision to call in an ambulance rather than await the direction of the RN. These can happen on other shifts but is far less likely with relatively immediate access to the RN on site.

[148] The increase in practical responsibility must however be considered in the context of the classification criteria within the EA and the requirements for the CSE3 and CSE4 classifications.

[149] There are certain aspects of the work that have at times been performed by the CSEs that may be beyond the intended scope of the CSE2 classification. Those activities that fall into this category include:

● The drawing up and giving of medications (such as Ordine) that are outside of the scope of assisting residents with their normal (or PRN medications) contained in the Webster packs;
● The undertaking of wound care beyond what might be described as simple wound dressings; and
● Undertaking the drawing up of work rosters.

[150] These are relatively isolated examples, and save for the rosters, the practices have been modified during the course of the hearings in this matter. I have however had regard to the fact that these were required and subject only to a contrary direction, could again be required. It is also important to consider what the CSEs are fundamentally required to do based upon their position description, duty statements and the actual evidence that is before the Commission. 26

[151] In that light, the potential application of the CSE3 criteria to the work of the CSEs must be closely considered. Many of the CSEs hold the relevant qualifications but to fall within the scope of the CSE3 classification the employees must be designated as having responsibility for leading and/or supervising the work of others or be designated with having overall responsibility for a particular function within the facility.

[152] The indicative tasks within the classification criteria provide some context as outlined earlier in this decision.

[153] I have already found that the CESs, including those who occupy the “Nurse A” or the medication CSE, do not exercise any actual supervisory or leadership responsibility.

[154] The ordinary and natural meaning of an employee having overall responsibility for a function would not in my view extend to the fact the CSEs have practical responsibility to carry out certain tasks, including when there is no RN on site. This does not involve taking overall responsibility which rests with the relevant nursing or management staff.

[155] This approach is consistent with the overall structure of the classifications within the enterprise agreements and with the translation arrangements agreed in 2009. There has not been a significant change in role or responsibilities for the CSEs so as to ignore that arrangement for present purposes.

[156] The nature of the responsibilities undertaken by the CSEs when no RN is on site is a factor, but not sufficient in my view to bring them into the scope of the CSE3 classification given the manner in which it has been drafted.

[157] In so finding, I have carefully considered whether the absence of the employer appointing a supervisor or leader from amongst the CSEs is a technicality used by Southern Cross Care to avoid the implications of the classification structure. However, there is no evidence that this is the case and the evidence reveals that the different roles undertaken are nominal and do not involve actual supervision or the responsibility for the work of the other CSE on the shift.

[158] The work of the CSEs could be arranged and additional responsibilities given that would provide somewhat more of a career structure for the CSEs at Southern Cross Care. This would be desirable in many senses but would have implications for the proper classification and this is beyond the scope of the present application.

[159] I have also considered whether any of the duties or circumstances might bring clause 21.7 Higher Duties into play. This contemplates an employee being required to relieve an employee of a high classification and this does not have application in the present circumstances. That is, the CSEs are not being required, in the absence of the RN or the facility managers, to undertake their roles. Clause 21.7 is also not an alternative to the proper application of the classification criteria of the EAs.

9. Conclusions

[160] On balance, I am not satisfied that the CSEs are, or were, incorrectly classified under the terms of the 2009 and 2011 EAs. Given the particular classification criteria in those agreements and the nature of the facilities, the work of the CSEs and organisation of that work, I do not consider that they are entitled to be paid under classification CSE3 or CSE4.

[161] This does not mean that as a matter of industrial merit there is not a case for some additional recognition of the circumstances in which the CSEs carry out their duties and the creation of a more accessible career progression for the CSEs has much to recommend it. However, any such additional recognition is beyond the scope of this present exercise. That is, it is not appropriate for the Commission to attempt to vary the operation of the EA on merit grounds and this is strictly a matter for the parties. 27

[162] There are also grounds to review some elements of the classification structure given more recent changes in aged care, and in particular, those associated with the classification and funding of residents’ care and the implications of the Aging in Care policy.

[163] However, all of these matters are properly a basis for negotiation as part of any new enterprise agreement and I note in that regard that the 2011 EA has passed its nominal expiry date and is due for renegotiation. I also note that in the context of a bargaining dispute, the Commission may assist the parties in that regard. 28

[164] Given my findings, I am not persuaded that any Orders should be made as a result of this application, other than an Order to close the file, which I do hereby make.

Appearances:

G Boyce, of counsel with K Smith of EMA Legal, both with permission, for Southern Cross Care (Broken Hill) Ltd.

A Knox with R Ferry for the Broken Hill Town Employees' Union.

Hearing details:

2014

Adelaide

September 22, 23, 24,

October 29.

Final written submissions:

2015

January 15, 30.

1 Clause 3 Parties Bound.

2 Broken Hill NAPSA.

3 Better Off Overall Test as provided by s.193 of the FW Act.

4 Shorter Oxford Dictionary.

5 [2014] FWCFB 7447.

6 Reference to the AI Act is to the Acts Interpretation Act 1901.

7 [1929] AR (NSW) 498 at 503 See also City of Wanneroo v Holmes (1989) 30 IR 362 (at 378-379) and Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2].

8 This former NSW State award became a Notional Agreement Preserving a State Award (NAPSA) in 2006.

9 See also The Aged and Home Care, NSWNA and HSU East Multi-Enterprise Agreement 2011-2014 [2011] FWAA 8172.

10 [2010] FWAA 3561.

11 This former NSW State award became a Notional Agreement Preserving a State Award (NAPSA) in 2006.

12 Transcript of approval proceedings AG2012/11030, 21 September 2012 at PN74 - PNPN114.

13 Ibid at PN117.

14 [2012] FWAA 8551 at [6].

15 Repealed on 27 July 2011.

16 Section 2.

17 Aruma Duty Statement - 1500-2300 Hours Care Staff A - KLF1 as an example.

18 Aruma Lodge Duty Statement 0700HRS - 1500HRS (Saturday, Sunday and Public Holiday assumes senior role) - part of KLF1.

19 Fenton at PN3992 and exhibit R10.

20 Details of names and contact details have been deleted in the interests of privacy.

21 After Hours On Call Procedure - part of KLF1.

22 Sutherland at PN1162.

23 Fenton at PN4131.

24 Exhibit A10.

25 [2012] FWA 5605.

26 Although said in the context of award coverage, the observations of the Full Bench in Mr Nicholas McMenemy v Thomas Duryea Consulting Pty Ltd T/A Thomas Duryea Consulting[2012] FWAFB 7184 at [37] are of assistance.

27 Section 739(5) of the FW Act.

28 Section 240 of the FW Act.

Printed by authority of the Commonwealth Government Printer

Southern Cross Care (Broken Hill) Ltd v The Broken Hill Town Employees' Union

[2015] FWC 803

8 APRIL 2015

DECISION