Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Mission Brisbane v Queensland Nurses' Union of Employees - [2014] FWCFB 1447

[2014] FWCFB 1447

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Mission Brisbane
v
Queensland Nurses’ Union of Employees
(C2014/2661)

SENIOR DEPUTY PRESIDENT ACTON
SENIOR DEPUTY PRESIDENT DRAKE
COMMISSIONER BOOTH

MELBOURNE, 24 MARCH 2014

Appeal against decisions [[2013] FWC 10219 and [2014] FWC 443] and order [PR546352, PR546497 and PR548270] of Deputy President Asbury in matter number B2013/1546.

Introduction

[1] The Uniting Church in Australia Property Trust (Q) t/as Blue Care and Wesley Mission Brisbane (Blue Care) has appealed decisions 1 of 24 December 2013 and 16 January 2014 and a bargaining order2 of 24 December 2013 issued by Deputy President Asbury. The decisions and bargaining order concern an application made to the Fair Work Commission (FWC) pursuant to s.229(1) of the Fair Work Act 2009 (Cth) (FW Act) by the Queensland Nurses’ Union of Employees (QNU) as a bargaining representative for a bargaining order. The decision of 16 January 2014 contained the reasons for the decision of 24 December 2013.

[2] At the hearing of the appeal, The Australian Workers’ Union of Employees, Queensland (AWUQ) was granted permission to appear and be heard in support of Blue Care’s appeal. Blue Care, the QNU and AWUQ were also given permission to be represented by a lawyer having regard to the provisions of s.596(2)(a) of the FW Act.

[3] In the decisions subject to appeal, the Deputy President decided to issue an order that Blue Care refrain from putting the proposed Blue Care/Wesley Mission Brisbane Care and Support Employees Enterprise Agreement 2013 (Care and Support Agreement) to a vote until 31 January 2014, and that the bargaining representatives for the proposed Care and Support Agreement including the QNU meet on at least four occasions prior to 31 January 2014 to attempt to reach agreement about the proposed Care and Support Agreement. The bargaining order subject to appeal reflected those decisions.

[4] Blue Care operates aged care facilities in Queensland. The facilities offer a range of living options, such as residential aged care facilities and serviced and non-serviced apartments. The residential aged care facilities have residents who are classified according to levels of acuity, as “high care” or “low care”. At some Blue Care facilities, residents classified as “high care” and “low care” are accommodated in the same areas, with care for both classifications being provided by the same Blue Care employees.

[5] Employees providing care for residents at the Blue Care facilities are currently covered by two enterprise agreements, being the:

• Blue Care/Wesley Mission Brisbane Nursing Employees Enterprise Agreement 2013 3 (Nursing Agreement) approved by the Fair Work Commission (FWC) on 19 April 2013; or

• Blue Care - WMAHC - AWU - LHMU Certified Agreement (No.5) 2005 (as varied and extended 2008) 4 which reached its nominal expiry date on 31 December 2011.

Grounds of appeal

[6] Blue Care submits the Deputy President erred in respect of her decisions and bargaining order:

(a) in finding the QNU is a bargaining representative for the proposed Care and Support Agreement in circumstances where the QNU is not entitled to represent the industrial interests of an employee in relation to work that will be performed under that agreement;

(b) in exercising her discretion to issue the bargaining order in that it was not reasonable in all of the circumstances to make the order where:

(i) the QNU had admitted it did not intend to bargain for an enterprise agreement with Blue Care and others party to the proposed Care and Support Agreement; and

(ii) it was not reasonable to make the bargaining order because the QNU took no steps to seek information about or join the negotiations for the proposed Care and Support Agreement until 21 November 2013 despite them being on notice of that agreement’s potential coverage of “personal carers” whom the QNU regarded as “assistants-in-nursing” falling within its eligibility rules.

[7] We will deal with the bargaining representative aspect of the grounds of appeal and then the discretion based aspect of the grounds of appeal.

Bargaining representative

(a) Deputy President’s reasoning

[8] Section 176 of the FW Act sets out who are bargaining representatives for proposed enterprise agreements that are not greenfields agreements.

[9] Relevantly, s.176 provides as follows:

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

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

(i) the employee is a member of the organisation…

(3) Despite subsections (1) and (2):

(a) an employee organisation; or

(b) an official of an employee organisation (whether acting in that capacity or otherwise);

cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.”

[10] The Deputy President’s reasoning as to why the QNU is a bargaining representative for the proposed Care and Support Agreement is lengthy. However, we think it is necessary to set out much of it. The Deputy President said:

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

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

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

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

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

[11] The Deputy President noted that “assistants-in-nursing” is not defined in the QNU’s eligibility rules.

[12] The Deputy President went on to say:

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

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

The Nurses Award 2010 and the Aged Care Award 2010

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

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

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

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

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

‘Nursing care means:

giving assistance to a person who, because of disability, is unable to maintain their bodily needs without frequent assistance;

carrying out tasks which are directly related to the maintenance of a person’s bodily needs where that person because of disability is unable to carry out those tasks for themselves; and/or

assisting a registered nurse to carry out the work described in B.5.

For the purposes of this award nursing care also includes care provided by midwives.’

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

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

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

Coverage of the current Care and Support Agreement

[49] The current Care and Support Agreement applies in accordance with clause 1.3.1 to:

‘... the Uniting Church in Australia Property Trust (Q), t/a Blue Care and West Moreton Aged Home Council Inc. their workplaces as set out in Appendix 1, and subsequent aged care facilities established as a result of the rebuilding program due to certification of the aged care facilities outlined, for employees who but for this agreement would be covered by the Awards (Appendix 2) hereto, and The Australian Workers Union of Employees Queensland and The Liquor, Hospitality and Miscellaneous Union, Queensland Branch Union of Employees.’

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

Private Hospitals and Nursing Homes Industry Award - State 2003

Award for Accommodation and Care Services Employees In Homes For The Aged (Excluding SE Qld)

Award for Accommodation and Care Services Employees In Homes For The Aged (SE Qld) (the Accommodation Awards)

Blue Care Enterprise Award - State 2004

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

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

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

‘ “personal carer” shall mean one who is not a nurse who undertakes a range of duties that assists in the care of a client or resident.’

[53] Level 3 also includes the following definition:

‘personal carer shall mean a person who is not a nurse who is multi-skilled and undertakes a range of duties that assist in the care of a client or resident where the position requires a level 3 certificate.’

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

The Private Hospitals and Nursing Homes Industry Award - State 2003

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

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

The Blue Care Enterprise Award - 2004

[57] The making of the Blue Care Enterprise Award 2004 was not without controversy. The matter was referred to a Full Bench of the Queensland Industrial Relations Commission, of which I was a member, after Commissioner Fisher who heard the matter at first instance (and was also a member of that Full Bench) had concerns about the scope of the Award. As that Full Bench then noted the matter had a long and tortuous history. All of the parties in the present proceedings were represented in the Full Bench proceedings in relation to the making of the Blue Care Enterprise Award 2004.

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

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

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

The Accommodation Awards

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

The proposed Care and Support Agreement

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

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

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

EVIDENCE

Work performed by Ms Scott and Ms Orreal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSIONS

The QNU is a bargaining representative for the proposed Agreement

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

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

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

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

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

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

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

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

[13] Section 229(1) of the FW Act provides that “[a] bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement.”

(b) Appeal submissions

[14] Blue Care submits on appeal that the Nurses Award 2010 5 (Nurses Award) which underpins the Nursing Agreement contains the classification “Nursing assistant” and relevantly means an employee whose employment is “solely to assist an RN or EN in the provision of nursing care to persons.” Blue Care maintains the Deputy President should have used this definition to define “assistants-in-nursing” in the QNU’s eligibility rules. Blue Care went on to submit that the primary purpose of the Personal Support Assistant position under the proposed Care and Support Agreement, given the multifaceted nature of the position and/or the width of its tasks, is not solely to assist an RN or EN in the provision of nursing care or to assist in the provision of nursing care.

[15] Further, Blue Care submits that a:

“21. Close analysis of the tasks prescribed under the [proposed Care and Support] Agreement and the tasks presently performed by Ms Scott and Ms Orreal demonstrates that what are prescribed and involved are flexible multifaceted positions that expressly do not include the work of a nurse and which do not have a focus (let alone a sole focus) upon assisting in the provision of nursing by a nurse. The tasks prescribed under the [proposed Care and Support] Agreement are not for the purpose of solely assisting an RN or EN in the provision of nursing care.” 6 [Underlining added]

[16] As a result, Blue Care says the Personal Support Assistant in the proposed Care and Support Agreement does not fall within the “assistants-in-nursing” calling within the meaning of the QNU’s eligibility rules and the QNU cannot be a bargaining representative for the proposed Care and Support Agreement.

[17] In support of this ground of appeal the AWUQ also submit that no reliable evidence was adduced before the Deputy President to justify an objective determination of the content of the term “assistants-in-nursing” in the QNU’s eligibility rules and the scope and meaning of the term are obscure and unexplained. Consequently, the Deputy President was not able to properly decide if the QNU is entitled to represent the relevant industrial interests.

[18] This ground of appeal is opposed by the QNU.

(c) Consideration of the bargaining representative ground

[19] There is no dispute that QNU has two members, Ms Olwyn Scott and Ms Rhonda Orreal, who are employees of Blue Care and who will be covered by the Care and Support Agreement.

[20] However, there is dispute over whether the QNU is entitled to represent the industrial interests of these employees in relation to work that will be performed under the Care and Support Agreement.

[21] The QNU’s eligibility rules give it coverage of “assistants-in-nursing” as follows:

“6. Eligibility for Membership

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

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

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

i) a nurse; or

ii) a midwife,

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

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

[22] The term “assistants-in-nursing” is not defined in the QNU’s eligibility rules.

[23] With respect to the interpretation of the eligibility rules of organisations, Senior Deputy President Williams pointed out the following in Australian Nursing Federation: 7

“[35] The interpretation of the eligibility rules of organisations involves a generous or liberal construction. The applicable principles of interpretation were set out by Northrop J in Food Preservers Union of Australia v The Manufacturing Grocers' Employees' Federation of Australia and confirmed by a Full Court of the Federal Court of Australia in Federated Tobacco Workers Union of Australia v Amalgamated Metal Workers' Union and another in the following terms:

The principles to be applied in determining the construction of an eligibility rule of an organisation have been discussed in many authorities. Those principles are summarised in the Re Williams; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1983) 153 CLR 402; 3 IR 96 by Gibbs CJ, Mason, Murphy, Brennan, Deane and Dawson JJ at 408 (CLR); 97 (IR) as follows:

‘The eligibility provisions in the rules of a registered organisation of employees serve the function of defining the general area or areas of industry or industrial pursuit from which members can legitimately be drawn and with which the organisation can be legitimately concerned (R v Dunlop Rubber Australia Ltd; Ex p Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 71, at 87; R v Clarkson; Ex p Victorian Employers Federation (1973) 131 CLR 100, at 111 and 113; Co-operative Bulk Handling Ltd v Waterside Workers' Federation of Australia (1980) 49 FLR 355, at 357-358). Since such eligibility provisions constitute a reference point for courts, commissions, employers, employees and other organisations in determining or ascertaining an organisation's proper coverage and field of operation, they must be construed objectively (R v Aird; Ex p Australian Workers' Union (1973) 129 CLR 654, at 659; R v Cohen; Ex p Motor Accidents Insurance Board (1979) 53 ALJR 719, at 720 and 723). In so construing them, however, it is permissible to pay regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used and to take account of evidence of that common understanding furnished by the previous use of the words in the relevant organisation's rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries (see, for example, R v Hickman; Ex p Fox & Clinton (1945) 70 CLR 598, at 613; R v Aird; Ex p Australian Workers' Union above, at 659.’

In addition, it must be remembered that eligibility rules should not be construed narrowly or technically; see Electrical Trades Union of Australia v Waterside Workers' Federation of Australia (No. 2) (1982) 1 IR 349; 59 FLR 78 (the ETU case), per Bowen CJ, Evatt and Deane JJ, at 353; 37. Although the construction of an eligibility clause is to be determined by legal considerations, it must be kept in mind that the eligibility rule will have been drawn, more likely than not, by union officials more familiar with the practical affairs of industries than the niceties or subtle nuances of language; see R v Aird; Ex p Australian Workers' Union, above, per Barwick CJ at 659.” [Footnotes deleted]

[24] In The Australian Workers’ Union of Employees, Queensland and others, 8 Chief Industrial Commissioner Ledlie of the Queensland Industrial Relations Commission determined several applications seeking award coverage or an extension of award coverage in relation to accommodation and care services for various categories of persons, including an application by the QNU. In his decision the Chief Industrial Commissioner noted that it was put to him that the “Registered List of Calling of the QNU” included “Assistants in Nursing”. Further, he said that the then “Nurses Award - State contained a definition (and classification for) ‘Assistant in Nursing’ founded upon that calling” which read as follows:

“ ‘Assistant Nurse’ shall mean an employee, other than a Student Nurse, Pupil Nurse or Enrolled Nurse, who is solely required to assist in the performance of nursing duties.” 9 [Underlining added]

[25] The Chief Industrial Commissioner went on to say:

“Mr Timo for the AWU submitted that his Union already catered for personal care assistants, and had members within the category working under several awards including the Accommodation and Care Services Award – State (Excluding South Eastern Queensland) and the Private Hospital and Nursing Home Employees Award – State.

He argued that the coverage in issue did not relate to persons who were sick but rather persons who were incapacitated, or had special needs through an inability to perform normal functions. He saw these needs as being community based care more of the family or parental nature and not associated with a nursing or medical model. In his view the general direction of change which recognized these needs commenced from a 1976 study by the Department of Community Services and Health entitled "Nursing Homes and Hospitals Review". He tendered an extract of the Commonwealth of Australia Gazette of 14 March 1986 listing schedules to the Aged or Disabled persons Homes Act 1954. These were approved in respect of Hostel Care Services and Personal Care Services pursuant to provisions of that Act. The substance of the latter reads —

‘SCHEDULE 2PERSONAL CARE SERVICES

(l) The provision to any eligible person who requires it of assistance with—

(a) bathing, showering or personal hygiene;

(b) toileting;

(d) mobility;

(e) transfer;

(f) meals and refreshments; or

(g) sensory communication or the fitting of sensory communication aids.

(2) Where an eligible person requires a special diet - the provisions of such a diet to that person.

(3) The control and administration of prescribed medication to an eligible person, subject to legal restrictions on the provision of such services.

(4) The provision to any eligible person who requires it, of rehabilitative support to meet a professionally determined therapeutic need.

(5) The provision, to any eligible person who contracts a short-term illness, of such assistance beyond accommodation services of a kind specified in Schedule 1 as may be needed.

(6) The provision to any eligible person who requires it of treatment such as eye drops, back rub, dressings, and urine tests, subject to legal restrictions on the provision of such services.

(7) The provision of long term emotional support and direct supervision for any eligible person diagnosed as suffering from a form of dementia or a functional psychotic condition requiring long term medication.

(8) The provision of emotional support to any eligible person suffering from an emotional needs condition such as grief or depression.’ ” 10

[26] In dealing with the QNU applications, the Chief Industrial Commissioner said:

“To be an assistant in any specific category would seem to me to require that a person assist or support others in that role, perhaps a broader role than that to which the assistance applies.

I think a logical reading of the calling of QNU supports that view. Indeed I believe it would be within the scope of the callings for an Assistant Nurse to perform other peripheral or incidental work which is within the context of nursing, and the provision of nursing services in the particular environment concerned.

More specifically, if a significant number of providers of aged care satisfy the Commonwealth of Australia funding requirements by providing Schedule 2 services in a nursing services model, it is difficult to see that assisting within that process is not assisting in nursing. Conversely, where those services are provided remote from a nursing or medical model I fail to see that the services in question can be seen as nursing or assisting therein.” 11 [Underlining added]

[27] In Queensland Nurses’ Union of Employees AND Churches of Christ in Queensland t/a Churches of Christ Care, 12 President Hall of the Industrial Court of Queensland in dealing with the matters before him set out the application clauses of the Nurses’ Aged Care Interim Award - State and The Hospital Nurses Award - State as follows:

“A. The ‘Nurses' Aged Care Interim Award - State’

‘2. This Interim Award shall apply to nursing employees in the private sector (non-governmental) employed in the industry of aged care, including aged care residential facilities, including nursing homes, hostels, retirement villages and aged respite care centres in the State of Queensland:

Provided that this Interim Award shall not apply to employees covered by any other award or industrial agreement or to members of religious orders.’

The Award classifications for Registered Nurses, Enrolled Nurses and Assistant Nurses as follows:-

‘3. (1) Classification of Employees - …

(g) “Assistant Nurse” shall mean an employee, who is solely required to assist in the performance of nursing duties under the supervision of a registered nurse or an enrolled nurse.’

B. The ‘Hospital Nurses' Award - State’

‘1. This Award shall apply to nursing employees for whom provision is made in Clause 4 hereof employed in non-government public hospitals, private hospitals, nursing homes, and retirement hostels and “villages” accommodating the aged or infirm in the State of Queensland . . .

Provided that this Award shall not apply to employees covered by any other award or industrial agreement including the Nurses' Aged Care Interim Award - State, and the Private Hospital Nurses' Award - State or to members of religious orders.’

It includes classifications for Registered Nurses, Enrolled Nurses and Assistant Nurses as follows:-

‘2. Classifications - …

(12) “Assistant Nurse” shall mean an employee, who is solely required to assist in the performance of nursing duties under the supervision of a registered nurse or an enrolled nurse.’” 13 [Underlining added]

[28] The President went on to say:

“In short form, the Hospital Nurses Award - State applies to nursing employees in nominated classifications in named facilities. The ‘Nurses’ Aged Care Interim Award’, of which award the ‘Hospital Nurses' Award - State’ is the parent, applies to nursing employees in nominated classifications employed in the private sector industry of aged care, in which industry named facilities (including nursing homes) are taken to be included. The ‘Accommodation Award’ applies to employees in the specified classifications engaged in named facilities. It is a matter of some significance that the ‘Hospital Nurses' Award’ and the ‘Nurses' Aged Care Interim Award’ specifically refer to ‘nursing homes’ whilst the ‘Accommodation Award’ does not. On any view of it, industrial awards have to be read in the context of the circumstances in which they are intended to operate. Construction is not a barren epistolary exercise. Words must be read in context. The purpose of the awards when made was to regulate employment, inter alia, in aged-care facilities funded by the Commonwealth. At the time, as previously explained, the funding arrangements placed nursing home and hostels in different worlds. It would be passing strange to reach the conclusion, as a matter of construction, that of the three Awards the one which applied to the Alf Popp Nursing Home was the one Award which made no reference to nursing homes.

I do not propose to refer yet again to the duties performed by the two named persons previously employed as enrolled nurses, and the two named persons previously employed as assistants-in-nursing. Having perused the definition of ‘nurse’ in the Macquarie Dictionary, the literature about the practice of nursing put in through the witness Marea Vidovich, the definitions contained in the Aged or Disabled Persons Care Act 1954, and the Nursing Homes Assistants Act 1974, I have come to the conclusion that each of the four named employees has at all times been performing nursing work. Indeed, I do not understand Churches of Christ Care to contend to the contrary. Rather, the submission of Churches of Christ Care is that the duties which the four named employees have performed before and after 29 March 1999 may also be characterised as the duties of a personal care attendant employed in a hostel for aged persons pursuant to the Award for Accommodation and Care Services Employees for Aged Persons - South-Eastern Division. I do not accept that submission. Duties are coloured by the context in which they are performed. To visualise a personal care attendant employed pursuant to the Award for Accommodation and Care Services Employees for Aged Persons - South-Eastern Division performing the duties which the four named persons have described, one would have to visualise a personal care attendant rendering those caring services exclusively to very high-care residents, subject to the supervision of a registered nurse, in premises which contain the equipment and aids necessary to render the services and which are architecturally designed to facilitate the rendering of care to high-care residents. It seems to me, with respect, that at that point one is visualising a hostel for aged persons which has made the transition from hostel to nursing home.

It is then contended that in any event the two persons who were assistants-in-nursing were beyond the reach of the Nurses Aged Care Interim Award - State because they were not solely engaged to perform nursing duties, ie they were engaged to perform domestic duties as well. I adhere to the view which I previously expressed that because the proceedings relate to conduct which occurred well before domestic duties were allocated to the two persons formerly employed as assistants-in-nursing, the evidence about domestic duties is simply irrelevant to the issues in these proceedings. In any event, as I previously found, the domestic duties (time consuming as they were) did not change the essential nature of the work performed by the two persons formerly employed as assistants-in-nursing. Their services were rendered by way of assistance to and under the supervision, in some cases a physical and immediate supervision and in other cases an in-direct supervision by way of a mandatory care plan, or [sic] a registered nurse.

It is irrelevant that the Churches of Christ Care ‘re-badged’ the four named employees.” 14 [Underlining added]

[29] In Australian Nursing Federation, 15 Senior Deputy President Williams was dealing with an application for the alteration of the eligibility rules of the Australian Nursing Federation. Relevantly his Honour stated:

“[37] Having considered all the material before me, I am of the view that the·appropriate approach, for the purposes of determining this application, is to give the terms contained in the proposed alteration a broad interpretation, constrained only by the context in which those terms appear. For that reason, I intend to interpret the term ‘nursing’ as meaning providing care to the sick, infirm and/or those who, for any reason, are unable to look after themselves. I include amongst such persons those who are not only in need of medical care but also those who are in need of assistance for the purposes of daily living. Without attempting to provide an exhaustive list, I would identify the tasks performed by such persons as including bathing, showering, ensuring the hygiene of the immediate environment, changing beds and toileting, implementing nursing care plans, implementing appropriate behaviour management, dementia management, dressing and assisting in the dressing of wounds, identifying skin lesions or damage, identification of behavioural or health changes, observation of patients/residents and observation and supervision of other staff providing such care. Many of these tasks are, in my view, basic nursing tasks. They are tasks that may be performed by a registered nurse wheresoever employed. The terms ‘nursing care’ and ‘nursing services’ would therefore encompass any care or services provided in the course of the provision of care to such persons whatever title is given to the person providing such care.

[38] For the purpose of industrial or workplace relations, in the context of the provision of nursing care and/or nursing services to the residents of aged care facilities, it is, in my view, neither possible nor appropriate to distinguish between the nursing care and personal care. Such a distinction may well be made for the purposes of determining the levels of funding of residential aged care facilities. However, the evidence before me demonstrates that, for the purpose of the actual provision of care, the distinction is artificial. In this context, nursing care cannot be properly described as being limited to care of a medical nature. Personal care, or, as it was described by some witnesses, the provision of assistance with daily living needs, is but a part of the provision of nursing care.

[39] The proposed alteration in this case, as in every case, must be read as a whole. To be eligible for membership under the proposed alteration, a person must be ‘employed to provide or assist in the provision of nursing care and/or nursing services’. That person must not just be ‘employed’, she or he must be employed for a specified purpose. In ascertaining the correct calling of an employee, it is appropriate to examine not only the nature of the duties performed by the employee but also, where the employee carries out diverse duties, the primary purpose for which the employee is employed.” [Underlining added]

[30] The Nurses Award relevantly provides at its coverage clause 4.1(a) that it covers “employers throughout Australia in the health industry and their employees in the classifications listed in Schedule B–Classification Definitions to the exclusion of any other modern award”. Other provisions of the coverage clause contain additions and exclusions to this but they are not presently relevant.

[31] The “health industry” is defined in the Nurses Award as meaning “employers in the business and/or activity of providing health and medical services and who employ nurses and persons who directly assist nurses in the provision of nursing care and nursing services”.

[32] The classification definitions in the Nurses Award contain a “Nursing assistant” who is defined as meaning “an employee, other than one registered with the Nursing and Midwifery Board of Australia or its successor or one who is in training for the purpose of such registration, who is under the direct control and supervision of a Registered or Enrolled nurse and whose employment is solely to assist an RN or EN in the provision of nursing care to persons.” [Underlining added]

[33] “Nursing care” is defined in the classification definitions in the Nurses Award as:

“ • giving assistance to a person who, because of disability, is unable to maintain their bodily needs without frequent assistance;

• carrying out tasks which are directly related to the maintenance of a person’s bodily needs where that person because of disability is unable to carry out those tasks for themselves; and/or

• assisting a registered nurse to carry out the work described in B.5.

• For the purposes of this award nursing care also includes care provided by midwives.”

[34] The Nursing Agreement which is underpinned by the Nurses Award has the following coverage clause:

“1.3. Application of Agreement

1.3.1. This Agreement shall apply to The Uniting Church in Australia Property Trust (Q.) T/A Blue Care (ABN 96 010 643 909) and Wesley Mission Brisbane (ABN 28 746 881 862), and their employees for whom classifications are contained herein.

1.3.2 Parties Bound

The parties bound by this Agreement are:

The Uniting Church in Australia Property Trust t/a Blue Care

The Uniting Church in Australia Property Trust t/a Wesley Mission Brisbane

Queensland Nurses' Union of Employees(QNU)/Australian Nursing Federation (ANF)

The Australian Workers' Union of Employees, Queensland (AWU)

Employees as defined in this Agreement.”

[35] “Employee” is defined in the Nursing Agreement as “an employee employed by the employer and covered by this Agreement.”

[36] The “Classification Statements” in Schedule 3 to the Nursing Agreement has three levels of “Assistant in Nursing” as follows:

“Assistant in Nursing Level 1

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

An employee at this level is required to:

(a) Exercise discretion and judgement within their level of skill and training;

(b) Attend training as directed;

(c) Work in collaboration with the care team under direct or indirect supervision of a Registered Nurse Demonstrate an understanding of required standards and actively participate in the implementation of those standards;

(d) Active involvement in continuous improvement.

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

(a) Assist in the provision of quality nursing care under supervision and direction as outlined in the care plan and other relevant documentation;

(b) Provide information relevant to the development of care plans;

(d) Complete documentation as required;

(e) Assist with medications on the request of the client/resident within a delegated or assigned range of duties, subject to legislative requirements;

(f) Assist with the orientation of staff as appropriate;

(g) Participate in workplace health and safety, infection control and training as required.

Assistant in Nursing Level 2

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

An employee at this level, in addition to Assistant in Nursing Level 1 is required to:

(a) Have obtained a Level III Certificate in Aged Care or equivalent, and 12 calendar months relevant industry experience;

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

Assistant in Nursing Level 3

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

Employees at this level are required to:

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

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

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

• Peer Preceptorship

• Continence Care

• Palliative Care

• Workplace Health and Safety

• Quality”. [Underlining added]

[37] These decisions and industrial instruments give definition to the term “assistants-in-nursing” in the QNU eligibility rules. They indicate that an “assistant-in-nursing”, “assistant nurse” and “nursing assistant” are terms used interchangeably. Further, they indicate that an assistant-in-nursing who is an employee, other than a nurse, who under the supervision of a nurse is solely required to assist a nurse in the performance of nursing duties or care may also perform time consuming domestic duties or other peripheral duties or incidental work within the context of nursing, and the provision of nursing services in the particular environment concerned, without ceasing to be an assistant-in-nursing.

[38] Section 176(3) of the FW Act as earlier indicated provides that an employee organisation cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to “work that will be performed under the agreement”.

[39] The “work that will be performed under the agreement” is to be ascertained from the terms of the proposed agreement. The terms of the proposed agreement set the outer limit of the work that will be performed under the agreement.

[40] The coverage clause of the proposed Care and Support Agreement is as follows:

“1.3. Application of Agreement

1.3.1. Subject to the exclusion in clause 1.3.2., this Agreement shall apply to the Uniting Church in Australia Property Trust (Q), t/a Blue Care and Wesley Mission Brisbane and their employees in the state of Queensland for whom classifications are contained herein.

1.3.2. This Agreement shall not apply to an employee, who, as at 1 December 2013, was employed by the Moreton Bay Regional Council and who was covered by the Moreton Bay Regional Council Enterprise Bargaining Agreement (EBA2).

1.3.3. Parties bound

The parties bound by this Agreement are:

The Uniting Church in Australia Property Trust (Q.) trading as Blue Care

The Uniting Church in Australia Property Trust (Q.) trading as Wesley Mission Brisbane

The Australian Workers’ Union of Employees, Queensland

United Voice

Employees as defined in this Agreement.”

[41] “Employee” is defined in clause 3.2 of the proposed Care and Support Agreement as “any person employed by the employer and covered by this agreement.”

[42] The classification structure of the proposed Care and Support Agreement provides as follows:

“Generic level statements

The indicative responsibilities are a non-exhaustive list of responsibilities that may be associated with the particular level. They are an indicative guide only and at any particular level employees may be expected to undertake duties of any level lower than their own. Employees at any particular level may perform/utilise one such duty/skill, or many of them, depending on the particular work allocated, consistent with the scope of their position(s)/role(s).

Indicative responsibilities, skills, knowledge, experience and qualifications described at each level are to be read as encompassing those described for all lower level classifications.

LEVEL 2

An employee in this level will have knowledge to perform broad tasks and apply appropriate methods in providing solutions to a limited range of foreseeable problems involving the utilisation of a range of developed skills. Work performed falls within general guidelines but with scope to exercise discretion in the application of established practices and procedures. Employees may assist in the supervision of work of the same or lower level and are accountable for assuring the quality of work performed.

The nature of the work is clearly defined with established procedures, well understood and/or clearly documented. Employees in this level are called upon to use some originality in approach with solutions usually attributable to application of previously encountered procedures and practices.

Employees will be responsible for managing time, planning and organising their own work and may be required to oversee and/or guide the work of a limited number of lower classified employees or volunteers. Employees at this level could be required to resolve minor work procedural issues in the relevant work area within established constraints.

Indicative responsibilities:

Provide quality care and support in accordance with the care plan of each individual;

Contribute to the development of care plans as required;

Perform tasks which promote and support client/resident independence and wellbeing;

Assist with activities of daily living, showering, toileting, dressing, grooming, mobility, eating and drinking as required;

Assist with the development, coordination and provision of activity programs and outings;

Perform hospitality tasks including but not limited to systematic and incidental cleaning, making beds, laundry services, preparation and cooking of food items, snacks and meals;

Perform tasks of a sensitive nature which may include handling money and managing personal and confidential information;

Safely transport individuals;

Drive a passenger vehicle, transit vehicle or courtesy bus;

Perform grounds and facilities duties using specialised equipment;

Complete minor repair and maintenance tasks;

Provide security duties;

Receiving, storing and distributing goods;

Respond to enquiries within designated scope of the position;

Ensure the provision and encouragement of safe work practices and environments;

Assist senior employees with special projects.

Skills, knowledge, experience and/or qualifications

(a) Developing knowledge of the workplace function and operation;

(b) Basic knowledge of practices and procedures relevant to the workplace, including effective time management and work prioritisation;

(d) Effective numeracy, written and verbal communication skills relevant to the work area;

(e) Demonstrated computer skills;

(f) Effective customer service skills.

A Personal Support Assistant shall mean a person who is not a nurse who is multi-skilled and undertakes a range of duties that assist in the care of a client.

Positions in this level may include:

Care Employees:

Personal Support Assistant

Disability Support Assistant

Allied Health Assistant

Support Employees:

Hospitality Officer

Cleaner

Bus/Courier/Truck Driver

Lifestyle Assistant

LEVEL 3

An employee at this level may work independently or under limited supervision. Employees are accountable for the quality, quantity and timeliness of their own work.

These positions require personal judgment. The nature of work is usually specialised with procedures well understood and clearly documented. The particular tasks to be performed will involve selection from a range of techniques, systems, equipment, methods or processes.

Indicative responsibilities:

Assist clients/residents with medications;

Liaise with health professionals and clinicians regarding client’s/resident’s special needs;

Assist in the training, co-ordination and supervision of lower level employees and/or volunteers;

Undertake general cooking duties;

Perform repair and maintenance work which requires some prior experience and may be trade related, although trade qualifications are not required at this level.

Skills, knowledge, experience and/or qualifications

(a) Previous experience in a relevant role and/or an appropriate certificate relevant to the work required;

(b) Knowledge of the workplace function and operation;

(d) Knowledge of relevant legislation, policies and statutory requirements;

(e) Demonstrated effective time management and personal organisational skills.

A Personal Support Assistant shall mean a person who is not a nurse who is multi-skilled and undertakes a range of duties that assist in the care of a client or resident where the position requires a Level III certificate.

A Personal Support Assistant or Disability Support Assistant possessing a relevant and applicable Certificate III (including Aged Care, Disability, Indigenous Health or Home and Community Care) and relevant industry experience shall be appointed to Level 3.1, from the first full pay period after the provision of evidence of their qualification and experience.

Positions in this level may include:

Care Employees:

Personal Support Assistant with
Certificate III

Disability Support Assistant with Certificate III

Allied Health Assistant with
Certificate III

Support Employees:

Maintenance Officer

Cook”. [Underlining added]

[43] The classification structure in the proposed Care and Support Agreement is a broadbanded one in which there are various positions within each of its levels. An employee may be classified in a position within a level even if they only perform some of the indicative responsibilities within the level. Further, an employee “who is not a nurse who is multi-skilled and undertakes a range of duties that assist in the care of a client” is a “Personal Support Assistant”. An employee “who is not a nurse who is multi-skilled and undertakes a range of duties that assist in the care of a client or resident where the position requires a Level III certificate” is a “Personal Support Assistant” with Certificate III.

[44] The terms of the proposed Care and Support Agreement provide Blue Care with such flexibility that the work that will be performed under the Care and Support Agreement has the capacity to extend to that of an assistant-in-nursing as defined earlier and covered by the QNU eligibility rules. The evidence before the Deputy President reveals that Ms Scott and Ms Orreal, the two QNU members who will be covered by the Care and Support Agreement, can perform such work.

[45] Since the QNU has two members, Ms Scott and Ms Orreal, who are employees of Blue Care and who will be covered by the Care and Support Agreement and the QNU is entitled to represent the industrial interests of them in relation to work that will be performed under the Care and Support Agreement, the QNU is a bargaining representative of employees, being Ms Scott and Ms Orreal, who will be covered by the Care and Support Agreement. Thereby the QNU is a bargaining representative for the proposed Care and Support Agreement.

[46] Accordingly, the Deputy President did not err in concluding the QNU is a bargaining representative for the proposed Care and Support Agreement.

[47] We turn then to the other ground of appeal.

Discretion

(a) Deputy President’s reasoning

[48] In exercising her discretion with respect to the issuing of the bargaining order, the Deputy President said:

“Are there discretionary grounds for refusing to make the Order?

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

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

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

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

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

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

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

[49] Then in concluding in respect of the bargaining order, the Deputy President said:

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

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

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

(b) Appeal submissions

[50] In respect of the discretion ground of appeal, Blue Care submits that it was not reasonable in all of the circumstances for the Deputy President to make the bargaining order as the QNU was not seeking to bargain in good faith. They say that this is evident in the QNU not wanting the proposed Care and Support Agreement to cover duties it considers to be those of assistants-in-nursing and it having no intention of reaching an agreement with Blue Care. It is also evident, they say, in the QNU taking no steps to become engaged in the bargaining process until very late in the process, despite being aware of the prospect of a replacement enterprise agreement for the Blue Care WMAMC - AWU/LHMWU Certified Agreement (No. 5) 2005 (as varied and extended 2008) and its criticism of Blue Care’s actions in replacing assistants-in-nursing. The AWUQ supported Blue Care’s submissions.

[51] The QNU submits there can be no suggestion of the QNU not intending to meet its good faith bargaining obligations. The QNU wants an opportunity to participate in the negotiations and the QNU took all reasonable steps to engage in the bargaining process. Further, the QNU says it could not have discovered the proposal by Blue Care to include a definition of nursing work in the proposed Care and Support Agreement much before it did in November 2013.

(c) Consideration of the discretion ground

[52] It is apparent from the Deputy President’s decision, that in exercising her discretion to make the bargaining order she had regard to the QNU’s position on the scope of the proposed Care and Support Agreement and the QNU’s delay in asserting its status as a bargaining representative in respect of the proposed Care and Support Agreement, and their import. These are matters Blue Care and the AWUQ maintain should have led her to fail to be satisfied it was reasonable in all of the circumstances to make the order. However, she balanced such matters against conduct by Blue Care in deciding to make the order in the exercise of her discretion. That approach was reasonably open to her. We do not think it can be maintained that the Deputy President made an appealable error in exercising her discretion as submitted by Blue Care and the AWUQ. Indeed, in the circumstances, we would have also exercised the discretion so as to issue the bargaining order.

Conclusion

[53] For the reasons given, we are not persuaded the Deputy President made an appealable error in deciding to make the bargaining order the subject of this appeal. Nor are we persuaded that the findings leading to, and conclusion that, the QNU is a bargaining representative for the proposed Care and Support Agreement and/or that the discretionary matters Blue Care and the AWUQ have raised are sufficient to attract the public interest in granting permission to appeal.

[54] We are therefore not satisfied it is in the public interest or otherwise for us to grant permission to appeal in this matter. We refuse permission to appeal in this matter and, to the extent it is necessary, dismiss the appeal.

SENIOR DEPUTY PRESIDENT

Appearances:

C. Murdoch of counsel with V. Donaghy, solicitor,for the Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Mission Brisbane.

M. Healy of counsel for Queensland Nurses’ Union of Employees.

A. Herbert of counsel for The Australian Workers’ Union of Employees, Queensland.

Hearing details:

2014.

Brisbane:

March, 5.

1 Queensland Nurses’ Union of Employees v Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Mission Brisbane; The Australian Workers’ Union of Employees, Queensland; and United Voice Union of Employees - Qld Branch, [2013] FWC 10219 and [2014] FWC 443.

2 Queensland Nurses’ Union of Employees v Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Mission Brisbane; The Australian Workers’ Union of Employees, Queensland; and United Voice Union of Employees - Qld Branch, PR546352, PR546497 and PR548270.

3 AE400881.

4 AG870587.

5 MA000034.

6 Appeal Exhibit A1.

7 Print T4652.

8 (1993) 142 QGIG 319.

9 Ibid at 320.

10 Ibid at 321.

11 Ibid at 323.

12 (2000) 164 QGIG 192.

13 Ibid at 194.

14 Ibid at 195.

15 Print T4652.

Printed by authority of the Commonwealth Government Printer