Blue Care v The Australian Workers’ Union of Employees, Queensland & Anor [2003] QIRC 210 (2003) 174 QGIG 1137

28 November, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1137 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 125 – application for enterprise award Blue Care AND The Australian Workers’ Union of Employees, Queensland and Another (No. B1452 of 2003) BLUE CARE ENTERPRISE AWARD – STATE 2003 COMMISSIONER FISHER 18 November 2003 Application for enterprise award – s. 129 Industrial Relations Act 1999 – Matter heard – Wages – Application to intervene by QNU – Further hearing – QNU application opposed – QNU arguments – Extension of scope – Case Law – Personal care work – Award issues – Application to be heard denied – Term “aged care facility” – Amendments to be lodged by 1 December 2003 – Further proceedings – Matter relisted 8 December 2003 at 10 a.m. re proposed amendments. DECISION Blue Care have filed an application for the making of a new enterprise award – the Blue Care Enterprise Award – State 2003. The named Union parties to the proposed new Award are The Australian Workers’ Union of Employees, Queensland (AWU) and the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (ALHMWU). Blue Care seeks the making of the new enterprise Award to rationalise the number of industrial instruments that apply to that section of the workforce for whom the AWU and ALHMWU have coverage. Five awards and one industrial agreement presently apply to Blue Care and the AWU/ALHMWU covered workforce. The Award sought to be made by Blue Care is based largely but not exclusively on provisions found in the current certified agreement – The Uniting Church in Australia Property Trust (Q) Blue Care – Queensland Enterprise Bargaining Certified Agreement 3 – 2001. The provisions which are drawn from the Certified Agreement include the classification structure and the rates of pay (plus the latest wage increase granted by General Ruling on 1 September 2003). In this regard Blue Care rely on the provisions of s. 129 of the Industrial Relations Act 1999. The application for making of the new enterprise Award was heard on 22 October 2003. The Commission reserved its decision on the matter in light of certain issues that had been raised in connection with the wages schedule. On 27 October 2003 Queensland Nurses’ Union of Employees (QNU) filed an application to intervene or to be made a party to the proposed new enterprise Award. That application was listed for hearing on 5 November 2003. At the hearing the QNU indicated that their application more properly sought the right to be heard in relation to the making of a new enterprise award. Blue Care, the AWU and the ALHMWU all opposed the QNU being granted any rights in relation to the making of the new enterprise Award. The QNU and all parties to the proposed new Award agreed on one point, that is, the decision in Re: Ludeke and others; ex parte the Customs Officers’ Association of Australia, Fourth Division 59 ALR 417 provided the governing principles for determining intervention in proceedings by non-parties. They agreed that these principles had equal applicability where a non-party was seeking the right to be heard. In essence the decision of the High Court found that a person whose legal rights or interests will be affected by a decision must be afforded natural justice and the opportunity to be heard before the decision is made. The QNU’s arguments on the right to be heard went to the following issues: 1. the scope of the proposed new enterprise award goes beyond the scope of the AWU and the ALHMWU awards; 2. the inclusion of an indicative skill of the “provision of personal care services” is the work performed by Assistants in Nursing (a QNU calling) in aged care facilities; and 3. award specific issues. The QNU sought that the Commission give a number of directions about the further conduct of the case. I shall deal with the matters raised by the QNU and the submissions made by the parties to the proposed new Award. -- 1 of 3 -- 1138 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 November, 2003 1. Extension of Scope The QNU submitted that the scope of the proposed new Award goes beyond the scope of the AWU and ALHMWU Awards. It was said to do so by allowing both those unions to cover nursing homes as the proposed coverage clause includes the term “aged care facility”. That term does not appear in either the Award for Accommodation and Care Services Employees for Aged Persons – South-Eastern Division (the ALHMWU Accommodation Award) or the Award for Accommodation and Care Services Employees for Aged Persons – State (Excluding South-East Queensland) (the AWU Accommodation Award). The QNU also submitted that the inclusion of the term “other residential accommodation” in the proposed new Award may also have the same effect of extending those unions’ coverage to nursing homes. QNU claimed that one potential adverse effect on their interests would be to grant coverage of employees undertaking “personal care” work in nursing homes to the AWU and the ALHMWU. The QNU noted that although the AWU Award, the Private Hospitals and Nursing Homes Industry Award – State 2003, applied to nursing homes, classifications such as personal care attendants, personal carer or personal care worker were not found in that Award. In response, Blue Care said that the proposed new Award seeks to depart from the old terminology of “nursing home” and “hostel” which had become obsolete in federal legislation. Removing such terms from the proposed new Award was consistent with s. 126(c) of the Industrial Relations Act 1999. Both Blue Care and the ALHMWU said that nursing employees were expressly exempted from the scope of the proposed new Award. This meant that the QNU could not establish a sufficient interest that would cause the QNU to be given the right to be heard. The AWU traversed the many decisions in this jurisdiction that have dealt with the meaning of personal care and the union coverage of such work. It submitted that the proposed new Award in fact improves the QNU position as against the current framework of awards. None of the parties to the proposed new Award specifically addressed the point raised by the QNU, that is, the inclusion of the term “aged care facility” into clause 1.4 Coverage of the proposed new Award and what is meant by that term. “Aged Care Facility” is not a term found in any of the Awards that are sought to be superseded by the proposed new Award. Reference to “aged care facilities” is made in clause 1.3 Application of Agreement in the Certified Agreement where it provides “The agreement shall apply to the Uniting Church Blue Care and it’s (sic) workplaces as set out in Appendix One, and subsequent aged care facilities established as a result of the rebuilding program due to certification of the aged care facilities outlined . . .”. The list of workplaces at Appendix One includes several nursing homes. The Commission understands that reference to nursing homes and hostels has been deleted from the Aged Care Act 1997 (Cwth). However, as the Full Bench found in Case No. B1019 of 1998 those terms remain in common parlance and in fact nursing homes and hostels continue to be licensed as such. (2002) 169 QGIG 769. The parties to the proposed new Award in Case No. B669 of 2000 also sought to include the term “aged care facility” in the scope clause (2003) 172 QGIG 1328. The Full Bench in that matter did not deal with the meaning of the term, finding that its inclusion extended the scope of the proposed new Award in circumstances where only an amalgam of the scope or application clauses of existing industrial instruments had been approved. In the absence of an explanation of the meaning of that term or the inclusion of a definition of it in clause 1.8 Definitions of the proposed new Award the Commission is concerned that the interests of the QNU may be adversely affected by the proposed form of the Award coverage clause. In order to provide a greater degree of certainty as to the coverage of the proposed new Award the meaning of the term aged care facility needs to be addressed further by the parties. These comments are made in the knowledge the exemption clause, clause 1.5(b), exempts “nursing employees” from the coverage of the proposed new Award. The parties to the proposed Award submitted that should be sufficient to address the QNU’s concerns. In Case No. B669 of 2000 the Full Bench noted that the QNU Award applies in aged care facilities other than nursing homes. This comment seemed to be made in reference to the QNU’s submissions that it has coverage in hostels and that “assistant nurses” currently work in hostels and properly do so. While I might be accused of taking a “belt and braces” approach the following comments are made in attempt to minimise conflict in the light of the arguments that have been before the Commission. Given the acknowledgment that the QNU has coverage of personal care work in nursing homes it would seem desirable for this to be expressly referenced in the exemption clause. The parties to the proposed new Award should also consider whether further specific exemptions for QNU covered work is necessary or desirable. 2. Personal Care Work The QNU referred to Schedule 1 of the proposed new Award which is a classification structure comprising six levels. Both Level 2 and Level 3 of the classification structure have, as one of the indicative skills, the provision of personal care services. Higher level employees are engaged in supervising such employees. Concern was also expressed by the QNU over the inclusion of “persons not otherwise provided for” in the Level 1 classification. The QNU said that the care of residents is the predominant category of work in aged care facilities and such work is performed by AINs under the QNU Award, the Nurses Aged Care Interim Award – State 2003. The QNU submitted that if the new enterprise Award was made in the terms proposed then the Commission would be allowing AINs to be substituted by workers as contained in the classification structure set out in Schedule 1. Serious adverse consequences for the QNU where claimed in the event this was permitted. In this regard reference was made to the decision of Hall P in the Queensland Nurses Union of Employees v Churches of Christ in Queensland trading as Churches of Christ Care (2000) 164 QGIG 192. (The Churches of Christ case). The proposed Award parties rejected the contentions of the QNU made under this heading and in particular, rejected that a “rebadging” exercise as was found to have occurred in the Churches of Christ case would occur under this Award. In the event that QNU had concerns that a rebadging exercise had occurred then it was open to the QNU to have that matter reviewed either on an individual employee or facility basis in terms of the decision of the Full Bench in the Nurses’ Aged Care Interim Award – State (B1019 of 1998). Further, the ALHMWU submitted that the Churches of Christ case had put beyond doubt the coverage of personal care work in the nursing home setting. The President found that the Nurses’ Aged Care Interim Award was the only Award that applied in those circumstances. The AWU also submitted that in the event a rebadging exercise was attempted it would not stand up to scrutiny in light of both the Churches of Christ decision and the provisions of the proposed new Award that exempt nursing employees. In relation to the concerns expressed about the classification structure the AWU submitted that the proposed classification structure is identical to that which has been included in four certified agreements made between the ALHMWU and Blue Care. The AWU said that the QNU was unable to point to any detriment that had been caused to them as a consequence. Reference was also made by the AWU to the inclusion of personal care attendants in its Accommodation Award. -- 2 of 3 -- 28 November, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1139 Blue Care submitted that a separate classification of personal carer, however called, was not sought to be created under the proposed new Award. Rather, the provision of personal care services was included as an indicative skill at particular levels in order to provide the type of work that employees may be required to perform at certain levels of the classification structure. Blue Care rejected the QNU submission that it had attempted to disguise the classification of personal carer by creating a classification in this manner. I have not been persuaded by the QNU arguments made under this heading. The decision of Hall P in the Churches of Christ case establishes that the QNU has coverage through its Award of personal care work performed in nursing homes. Further, should a rebadging exercise be attempted, then it is open to the QNU to challenge that in the Court. I am of the view that if the meaning of the term aged care facility is addressed as indicated above and the exemption clause further refined then much of the QNU’s concern is likely to be overcome. To help address their concern about the meaning of “personal care services” the QNU called upon the Commission to give certain directions about the filing of affidavits and material concerning the definition of “personal carer”, the definition of “personal care services” and whether Levels 4, 5 and 6 of the classification structure include any duties connected to personal care services. A classification of personal care attendant has existed in the two Accommodation Awards for approximately five years. In addition the Aged Care Act 1997 defines residential care inter alia as personal care or nursing care or both. All the organisations appearing in this matter have existed with the definitions in the two Accommodation Awards and the Aged Care Act 1997 for many years. In light of the amount of litigation over this matter in recent years one could draw a conclusion that there is still a lack of clarity that ought to be addressed – although this is denied by the parties to the proposed new Award. In any event the QNU have not made out a case that their rights and interests will be adversely affected if not granted the right to be heard on these matters. 3. Award Issues The QNU identified three particular concerns under this heading: (i) the applicant has not justified its case for the granting of work value increases for those employees required to perform personal care duties; (ii) clause 1.6 Relationship with other industrial instruments of the proposed new Award is unclear in respect of what is meant by the provision “this enterprise Award supersedes various industrial instruments”; and (iii) the proposed new Award does not regulate a calling. Blue Care submitted that that the QNU submissions in the abovementioned matters should be ignored as they do not go to the QNU’s application for the right to be heard. Those matters go to the merits of the application. In my view the QNU did not make out a case as to how these issues affected their interests. Accordingly, I can find no grounds upon which to grant the QNU the right to be heard on these matters. Further Proceedings I am satisfied that the QNU identified an issue that may affect their interests, that is, the inclusion of the term “aged care facility” in clause 1.4 Coverage of the Proposed New Award. From the submissions of the parties to the proposed new Award the Commission accepts that it is not their intention to extend the coverage of the AWU and the ALHMWU in respect of personal care work into nursing homes. They believe that matter to have been settled through the Churches of Christ case. However, the inclusion of the term “aged care facility” where it has not previously existed in awards has the potential to disturb existing understandings. I have decided to give the parties to the proposed new Award the opportunity to address the concerns I have identified in this decision and to make any amendments considered necessary. Any such amendments should be lodged in the Registry and served on the QNU by 1 December 2003. The application by the QNU for the right to be heard will be relisted on 8 December 2003 at 10 a.m. at which time the parties to the proposed new Award and the QNU will be given the opportunity to address any proposed amendments. Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2003 22 October 5 November Appearances: Mr S. Bennett of Blake Dawson Waldron on behalf of the applicant. Mr C. Simpson for The Australian Workers’ Union of Employees, Queensland. Mr R. Reed (Barrister) and Mr J. Spreckley for the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. Mr Staindl (Barrister) instructed by Mr M. Healy and Ms G. McCaul for the Queensland Nurses’ Union of Employees. -- 3 of 3 --