Uniting Church in Australia Property Trust (Q.) T/A Wesley Mission Queensland

[2019] FWC 6354

[2019] FWC 6354

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Uniting Church in Australia Property Trust (Q.) T/A Wesley Mission Queensland
(AG2018/5527)

COMMISSIONER WILSON MELBOURNE, 13 SEPTEMBER 2019

Application for approval of the Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018. Residual matter for determination – whether group covered by Agreement is fairly chosen for reason of s.186(3A) – that is, taking into account whether the group is geographically, operationally or organisationally distinct.

[1] The decision published by me on 29 July 2019 in relation to the approval of the Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018, 1 (the Merits Decision) identified that further submissions were required from the parties in order for me to be satisfied that the group of employees covered by the Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018 (the WMQ Agreement) is fairly chosen taking into account whether the group is geographically, operationally or organisationally distinct (s.186(3A)).

[2] Following the Commission’s invitation, submissions and further evidence, in the form of statutory declarations, were received from the Applicant, WMQ, and the QNMU. No submissions were received from the AWU or United Voice. No party sought to be heard in relation to their submissions or the evidence provided.

[3] The issue remaining for determination was framed in the Merits Decision in the following manner:

“I am satisfied that while the evidence leans toward a finding that the group of employees covered by the WMQ Agreement was fairly chosen taking into account that the employees within the group may be geographically, operationally or organisationally distinct, that for the reasons referred to I have not made such a finding. In relation to that matter alone, I invite the filing of further evidence on the subject from each party, after which they may be afforded an opportunity to be heard if either party seeks a hearing, or the Commission considers a hearing to be desirable. In all other respects I consider the Agreement capable of approval, but with the undertakings referred to. I reiterate to the parties the matter indicated above in relation to the question of whether the group of employees covered by the Agreement was fairly chosen taking into account that the employees within the group may be geographically, operationally or organisationally distinct: a repetition of the evidence given so far will, inevitably, lead to me not being satisfied the group was fairly chosen; and such lack of satisfaction would in turn lead to the refusal of the application for approval of the Agreement.” 2

[4] The assessment of whether the group of employees covered by the WMQ Agreement was fairly chosen will turn on the facts and circumstances in each case. 3 The selection of the group of employees to be covered by an agreement on some objective basis (as opposed to an arbitrary or subjective basis) is likely to favour a conclusion that the group was fairly chosen.4 Depending on those facts and circumstances, there may be more than one way of fairly choosing the group of employees to be covered by a proposed enterprise agreement.5 Pertinently:

“In most enterprises there is unlikely to be only one fair manner of selecting the class of employees to be covered by an enterprise agreement. Different scope provisions may be equally described as fair in the sense that no manifest unfairness arises from their application. That is not to say that the parties may have a particular preference or view about the scope and favour a different formulation. The tribunal’s task however is not to determine the scope clause. Its task is to guard against unfairness by being satisfied that the group can be described, in all the circumstances, as fairly chosen.” 6

[5] Section 186(3) of the Fair Work Act 2009 (the Act) is one of “the protective provisions of the Act relating to the right to representation, the “fairly chosen” provisions of subsections (3) and (3A) of s.186, and, most importantly, the need to pass the BOOT”, 7 with a primary purpose of the provision being “to avoid the workforce of an enterprise being broken up into artificial employee groupings with the consequence that the workforce of the enterprise is unable to bargain as a single collective”.8

[6] Noting that the group to be covered by this Agreement is presently covered by another agreement which covers both WMQ and Blue Care, the Merits Decision gave this context for the application now before the Commission:

“[7] Context to the application includes that the Agreement applies “to the Uniting Church in Australia Property Trust (Q), trading as Wesley Mission Queensland and their employees in the State of Queensland for whom classifications are contained herein”. Those employees, described by WMQ’s Employee Relations Manager, Greg Burns, in his evidence as “care and support employees” are presently covered by the Blue Care/Wesley Mission Brisbane Care and Support Employees Enterprise Agreement 2013 (the Blue Care/Wesley Mission Agreement). As the name would suggest that agreement covers employees both of WMQ and another business of the Trust known as Blue Care. Mr Burn’s evidence on the subject of the background to this Agreement includes that a joint Blue Care/Wesley Mission Care and Support Agreement was first put to a vote in September 2016 with both the WMQ and Blue Care employee cohorts rejecting the proposed agreement. His evidence also included that when a further agreement was put to a vote in May and June 2017 that too was unsuccessful. At that time Mr Burns formed the view that while a majority of WMQ employees had voted in favour of the proposed agreement, a majority of Blue Care employees had not. Mr Burns also found that the two cohorts of employees had substantive differences between the log of claims being sought. As a result, the CEOs of WMQ and Blue Care determined to seek separate agreements in respect of those cohorts.” 9 (references omitted)

[7] In its further material, WMQ relies on it being organisationally, operationally and geographically distinct to Blue Care. QNMU argue the reverse.

[8] In summary each party has put forward the following contentions (pertinent to the tests within s.186 (3A).

Geographically distinct

[9] WMQ submit its facilities are not co-located with Blue Care. 10 Further and specifically;

“WMQ operates 13 residential aged care services and 5 home care services within south-east Queensland, while Blue Care operates 53 residential aged care services and 28 home care services throughout Queensland. These services are not co-located and are clearly branded as either Blue Care or WMQ services. Each service is separately registered with the Department of Health in the name of Blue Care or WMQ” 11

[10] After providing a list of its residential aged care services, WMQ’s evidence in relation to its four particular facilities is that the nearest Blue Care facilities are between 3 km and 10.5 km in distance from them. 12

[11] QNMU rely for its part on the contention that WMQ is not geographically distinct on the proposition that both the current enterprise agreement, applying to both WMQ and Blue Care, and the WMQ Agreement cover the whole of Queensland:

“11. The group of employees covered by the Agreement is a sub-group (“the subgroup”) of the group covered by the current EA (“the current EA group”). In the terms of the Agreement, there is no geographical distinction between the group of employees covered by it and those covered by the current EA. Both the current EA and the Agreement contain the same geographical element of their coverage of employees, namely Queensland.

12. The Agreement provides:

a. “1.3.1. This Agreement shall apply to the Uniting Church in Australia Property Trust (Q), trading as Wesley Mission Queensland and their employees in the State of Queensland for whom classifications are contained herein.” (emphasis added)

13. The current EA provides:

a. “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.”

(emphasis added)

14. The employees associated with both brands are dispersed across many sites throughout Queensland and are geographically indistinct to that extent. The WMQ-branded position description4 says “Wesley Mission Queensland is a large…organisation with more than 50 locations servicing Queenslanders…”.

15. In another sense, the WMQ-branded employees, who currently work in Southern Queensland, are geographically subsumed into the geographical area in which the Blue Care branded employees currently work, which is Queensland generally. Being currently geographically subsumed does not make WMQ-branded employees geographically distinct from the Blue Care branded employees.” 13

[12] Neither the submissions of the QNMU or its additional evidence in the form of a statutory declaration from its organiser Paul Robertson-Mitchell, directly address the submissions relied upon by WMQ on the subject of it being geographical distinct.

[13] I am unpersuaded of the QNMU’s arguments on the matter of geographical distinction. The logic inherent to them is that because there is a potential for both agreements to cover the same locations, being at least the entire State of Queensland, it must be that there is no distinction geographically between the two groups of employees. Such submission does not address the requirement in ss.186(3) and (3A) that the Commission examine whether the group chosen to be covered by the proposed agreement is geographically distinct when compared with some wider group. I am satisfied that WMQ’s employment base and the group it chose to be covered by this Agreement is geographically distinct to that of Blue Care.

Operationally distinct

[14] WMQ argue that it maintained separate registration to Blue Care in certain respects. The two have different Australian Business Numbers and have separate registration for the purposes of compliance with charities legislation and the National Insurance Disability Insurance Scheme. Different arrangements are also employed on matters such as insurance and organisational support teams such as finance, IT and human resources. 14 Further, Mr Ware’s evidence is that:

“16. All employees are employed and paid by the relevant Church entity with employment contracts, industrial instruments and payment summaries in the name of the Property Trust with the trading name of Blue Care or WMQ (using the relevant ABN). However, on occasion, and where required, the Church entity is fully styled as set out in paragraph 14 above.

17. In summary, the Church's structure is analogous to the relationship between the Crown (in right of the Commonwealth) and departments of the Australian Government, with the departments being the operational units of the former with separate ABNs (although each take their legal personality from the Crown). For example, the Department of Employment, Skills Small and Family Business contracts as The Commonwealth of Australia acting through and represented by the Department of Employment, Skills, Small and Family Business ABN 54 201 218 474” 15

[15] In contrast the QNMU submit merely that:

“28. Whether a group of employees covered by an agreement are operationally distinct relates to the operations performed by the employees. The operations performed by the employees are essentially the duties or kind of work performed by the employees.

29. The duties and kind of work performed by the excluded employees associated with the Blue Care brand and the included employees is identical. The classification definitions between the excluded and included groups of employees are identical. That is, the classification definitions of the current EA are identical to those of the Agreement.” 16

[16] The QNMU has not directly rebutted the submissions relied upon by WMQ about it being operationally distinct.

[17] The QNMU misstates the test in respect of whether it can be said that the employees are operationally distinct. The test is not whether the duties or kind of work performed by the employees is essentially the same or even identical. Instead, being operationally distinct requires consideration of the industrial or productive activity. 17 In this case, the industrial or productive activity is the function performed by WMQ in providing residential care and other services. Those operations stand in distinction to the ones performed by Blue Care.

[18] I am satisfied that the group to be covered by the WMQ Agreement is operationally distinct from other employees.

Organisationally distinct

[19] WMQ argue two matters relating to the question of whether it is organisationally distinct from Blue Care. Firstly, it is argued that WMQ and Blue Care were created and operate under wholly distinct and separate governance structures with a distinct status within the Uniting Church. Secondly it is argued that each is overseen by a separate Board of Directors without mutuality of membership. 18

[20] The matter of how the Uniting Church’s governance structure has impacted upon the formation of WMQ and Blue Care is developed in the first statutory declaration of Charles Ware. So far as is relevant:

“UnitingCare Queensland. Under the Regulations, the Queensland Synod is authorised to establish an unincorporated body as an 'institution' of the Church. Under its By-laws, the Queensland Synod established UnitingCare Queensland as an institution with its own constitution and board appointed by and responsible to the Queensland Synod. UnitingCare Queensland is unincorporated.

Blue Care. Organisationally, UnitingCare Queensland acts as a group office for 3 service groups - Blue Care, UnitingCare Community (formerly Lifeline Community Care) and UnitingCare Health. Each service group is unincorporated and is an organisational unit of UnitingCare Queensland. Blue Care is unincorporated.”

“Wesley Mission Queensland. WMQ is a congregation of the Church within the Moreton Rivers Presbytery. Prior to union, Wesley Mission Brisbane (as it then was) was a congregation of the Methodist Church of Australasia, with a history extending back to 1907 when the Queensland Methodist Conference gave approval for the Albert Street Methodist Church to establish the Central Methodist Mission. On union in 1977, WMQ continued as a congregation of the Church with the additional designation as a parish mission, because of the extent of its service delivery through aged care, retirement living and community services as part of its mission. The Congregation's church building is at 319 Albert Street, Brisbane City (which is also the seat of the Albert St Congregation), while the operational management ofWMQ's various human services is headquartered at WMQ's Wheller Gardens campus at 930 Gympie Road, Chermside under the leadership ofWMQ's Chief Executive Officer.

Under the Church's Constitution and the Regulations, WMQ is governed by a Church Council comprising the ministers of the Congregation, elders and elected members of the Congregation.” 19

[21] In relation to how the direct governance arrangements of WMQ and Blue Care may be organisationally distinct, and as previously reported, the two have different Australian Business Numbers and have separate registration for the purposes of compliance with charities legislation and the National Insurance Disability Insurance Scheme, as well as having different arrangements on matters such as insurance and organisational support teams such as finance, IT and human resources. 20

[22] In its submissions the QNMU argue that WMQ has not identified organisational distinction of the employees covered by the WMQ Agreement; that its evidence focuses on the organisational distinction within the employer’s business having little or no impact upon the employees covered by the Agreement and of no relevance to them. QNMU also argue that despite Mr Ware’s evidence that WMQ and Blue Care “have a distinct status within the uniting Church” that it is not supported upon examination of the Uniting Church in Australia Regulations. 21

[23] The QNMU has not directly rebutted the submissions relied upon by WMQ about it being organisationally distinct.

[24] I am satisfied on the basis of the material before me that WMQ is organisationally distinct to Blue Care. The matters put forward by the QNMU focus upon two matters, namely the relevance of consideration of support services within the businesses being provided through different arrangements and that the ultimate governance arrangements of the Uniting Church, being its regulations, do not specifically mention Blue Care or WMQ. I am satisfied from the evidence that there are different organisational structures of some significance and meaning. Those structures start with the manner in which the Uniting Church has chosen to structure itself, pass through the trading names of WMQ and Blue Care, manifest themselves in the obvious separateness of different residential care facilities some distance from each other, and are supported by the fact that internal support arrangements, such as finance, IT and HR are delivered through different mechanisms as well. There is little question upon the evidence before me that WMQ is organisationally distinct to Blue Care.

[25] On the basis of the foregoing material as well as that which was considered in the proceedings leading to the Merits Decision, I am satisfied that for the purposes of ss.186(3) and (3A) of the Act that the group of employees covered by the WMQ Agreement is fairly chosen. A key part of the QNMU objections to the question of the group to be covered by the agreement, even after considering whether it is geographically, operationally or organisationally distinct, appears to be that the group covered by the WMQ Agreement is different from the Blue Care/Wesley Mission Agreement; being but a subset. Such objection cannot be sustained if the Commission is satisfied the group is fairly chosen, with the relevant distinctions being satisfied. There is no lack of fair choice simply because the groups are different, which seems to be the main QNMU complaint. There is no proposition that an enterprise agreement may only be made on the basis of the scope of an earlier agreement. No proposition arises that an earlier scope may not be varied or narrowed in a subsequent agreement.

[26] Having determined that matter as well as all other matters requiring consideration by the Commission for the approval of an enterprise agreement under Part 2 – 4 of the Act, I propose to now move to approve the WMQ Agreement.

[27] Since publication of the Merits Decision WMQ have provided to the Commission updated undertakings which are largely consistent with those considered within the content the Merits Decision but which have been edited in certain respects. The Applicant puts forward that the “changes were intended for the purposes of clarification and to address minor errors in the wording of the undertakings, but not to alter their substance.” Since the provision of these materials the QNMU has suggested further changes for the purposes of grammatical clarity. Having reviewed the consolidated undertakings, I do not consider there is a need for further change to them. Being satisfied that views of each person who the Commission knows is a bargaining representative for the Agreement have been sought I am prepared to accept them for the purposes of s.190.

[28] In order to now finalise this matter, the Applicant is directed within seven days of the date of this decision to provide to the Commission a copy of the Agreement which complies with the obligations under s.185(2) and the Regulations for signing an enterprise agreement, 22 after which the Agreement will be approved. If that direction is not complied with the application will be dismissed as not being compliant with s.185(2).

COMMISSIONER

Final written submissions:

QNMU Submissions 28 August 2019.

Wesley Mission Submissions 29 August 2019.

Printed by authority of the Commonwealth Government Printer

<PR712330>

 1   [2019] FWC 5079.

 2   Ibid, [132].

 3   Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union[2012] FWAFB 2206, (2012) 219 IR 139, [46].

 4   Ibid, [16].

 5   The Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd[2014] FWCFB 1476, (2014) 242 IR 238, [14].

 6   Construction, Forestry, Mining and Energy Union v ResCo Training and Labour Pty Ltd[2012] FWAFB 8461, (2012) 228 IR 5, [35].

 7   ALDI Foods Pty Ltd v Shop, Distributive and Allied Employees Association [2017] 262 CLR 593, (2017) 270 IR 459, [84], per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ.

 8   One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77, (2017) 277 IR 23.

 9   Ibid.

 10   WMQ Supplementary Submissions, 13 August 2019, [2(c))].

 11   Statutory Declaration of Charles Ware, 13 August 2019, [19].

 12 Statutory Declaration of Charles Ware, 29 August 2019, [3] – [6].

 13   QNMU Submissions, 28 August 2019.

 14 WMQ Submissions, 13 August 2019, [2(b)]; Statutory Declaration of Charles Ware, 13 August 2019, [12] – [16].

 15   Statutory Declaration of Charles Ware, 13 August 2019.

 16   QNMU Submissions, 28 August 2019.

 17   QGC Pty Ltd v The Australian Workers’ Union[2017] FWCFB 1165, (2017) 268 IR 241, [44] – [46].

 18   WMQ Submissions, 13 August 2019, [2(a)].

 19   Statutory Declaration of Charles Ware, 13 August 2019, [8].

 20 WMQ Submissions, 13 August 2019, [2(b)]; Statutory Declaration of Charles Ware, 13 August 2019, [12] – [16].

 21   QNMU Submissions, 28 August 2019, [16] – [17]

 22   The Fair Work Regulations 2009 provide that an enterprise agreement is a signed copy when, inter alia, it is signed by at least 1 representative of the employees covered by the agreement, with the signature including the full name and address of each person who signs the agreement and an explanation of the person’s authority to sign the agreement (r.2.06A(2)).