Blue Care v The Australian Workers’ Union of Employees, Queensland & Anor [2004] QIRC 75 (2004) 175 QGIG 1383

30 April, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1383 ########################################################################################################################### 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 DEPUTY PRESIDENT BLOOMFIELD 19 April 2004 COMMISSIONER FISHER COMMISSIONER ASBURY -- 1 of 5 -- 1384 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 April, 2004 Application for enterprise award – Enterprise award approved – Proposed amendments in contention – Exemption from Coverage – Personal Care Services Employee – Diversional Therapy Award – Relationship with other industrial instruments – Definitions – Procedural Issues – Remaining amendments approved. DECISION In a decision of 27 February 2004, now reported at (2004) 175 QGIG 872, we approved the making of a new enterprise award, viz the Blue Care Enterprise Award – State 2004. We did not however approve all of the provisions proposed by the applicant, Blue Care, and accepted by the two Union parties, 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 were directed to make several amendments in line with our decision. The parties to the Award and the Queensland Nurses’ Union of Employees (QNU), which had been given the right to be heard in relation to certain matters, were then given the opportunity to speak to the further proposed amendments. We have considered the various amendments proposed by Blue Care in light of our 27 February 2004 decision and which are accepted by the AWU and the ALHMWU. All of the proposed amendments were the subject of comment by the QNU, with some drawing criticism. We note that some of the amendments upon which the QNU commented went beyond the matters for which they had been granted the right to be heard. Except for those amendments that are discussed below, we approve the remaining amendments proposed by Blue Care in the latest version of the Award filed in the Registry on 16 March 2004. 1. Clause 1.5(c) Exemption from Coverage – Personal Care Services Employees The Full Bench directed Blue Care to amend the proposed exemption of “the provision of personal care services in Nursing Homes” so that it applied to a class of employee as required by s. 132(1) of the Industrial Relations Act 1999. As a consequence of that direction Blue Care proposed the following exemption: “Personal Care Attendants in Nursing Homes”. The QNU opposed this proposed amendment submitting that it was a contraction of the intent of the particular exemption sought by the Full Bench. The QNU proposed that a more appropriate exemption would be: “Employees who provide personal care services in nursing homes.”. All the parties to the Award opposed the QNU’s proposal. Mr Simpson, appearing for the AWU, put the most comprehensive submissions on this matter and we shall highlight the salient features to demonstrate the parties’ opposition. Mr Simpson said that the Blue Care Enterprise Award – State 2004 has, from its earliest drafts, provided an exemption for nursing employees, i.e., employees employed under the Nurses Aged Care Award – State 2004. The exemption relating to personal care work is designed as a further safeguard to prevent any possible rebadging of the sort considered by 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). Moreover, concern was expressed that the term “personal care work” could be too broadly construed to include such functions as cooking, cleaning and other domestic work where such work has been covered for many years by the Private Hospitals and Nursing Homes Industry Award – State 2003. The AWU considered that the term “personal care attendant” best achieved the intent of the parties and would minimise the potential for future argument. From the earliest involvement of the QNU in these proceedings the parties to the Blue Care Enterprise Award – State 2004 have accepted that the QNU has coverage of personal care work performed in nursing homes through the Nurses Aged Care Award – State 2003. The argument is about the most appropriate form of an exemption having regard to this concession, the Full Bench direction that the exemption must apply to a class of employee and the indicative task/skill included in the classification structure of the Award of “provision of personal care services”. We have nothing before us to show that employees who are engaged in the provision of personal care services in nursing homes are called or classified “Personal Care Attendants”. In light of that fact we would be concerned about the implications in the nursing home sector generally if an exemption from this Award was given, without further enquiry, to “Personal Care Attendants in Nursing Homes”. We consider that the amendment proposed by the QNU is more consistent with our 27 February 2004 decision and by using the words found in the classification structure of the Blue Care Enterprise Award – State 2004 makes the exemption clearer. 2. Clause 1.5(e) Exemptions re Diversional Therapy Award – State 2003 In our decision of 27 February 2004 we said: “We also note that the Diversional Therapists Award provides exemptions, some of which appear to have relevance to the present matter. Given the proposed new award is intended to supersede other awards, including the Diversional Therapists Award, then in our view those (relevant) exemptions should also be specified.”. Blue Care have proposed three new exemptions as a result of those comments. The first proposed amendment is a redrafting of the exemption as it appears at Clause 1.3.1(b) of the Diversional Therapists Award – State 2003. Blue Care have replaced the words “Employees covered by the Nurses’ Aged Care Interim Award – State who shall be deemed to include employees” with “Diversional Therapists”. In support of this proposed amendment Mr Bennett, on behalf of Blue Care, argued that it was consistent with the Full Bench decision because the “relevant parts” of the exemptions from the Diversional Therapy Award – State 2003 had been included into the Blue Care Enterprise Award. Mr Bennett acknowledged that reference to “employees covered by the Nurses’ Aged Care Interim Award – State” had been omitted but said that the exemption of “Nursing employees” at clause 1.5(b) of the Blue Care Enterprise Award ensured that employees covered by the Nurses’ Aged Care Award – State were specifically excluded from coverage of the Blue Care Enterprise Award. In addition Mr Bennett said that the change to “Diversional Therapists who do not possess an Associate Diploma” was made to ensure that the exemption does not inadvertently catch employees who are quite properly providing personal care services. It was further submitted that the exemption phrased in this way was consistent with the exemption as it appears in the Diversional Therapists Award and is intended to exclude employees who are practising as Diversional Therapists who do not possess an associate diploma or higher qualification in diversional therapy or similar, and who develop and/or provide nursing and therapeutic activities for residents and whose work is immediately supervised by a Registered Nurse. -- 2 of 5 -- 30 April, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1385 QNU opposed this exemption. All parties to the Award objected to the QNU making submissions on this matter arguing that the QNU had not been given the right to be heard on it. On 18 November 2003 Commissioner Fisher issued her decision on the QNU’s application for intervention ((2003) 174 QGIG 1137). At that time the conduct of Diversional Therapy programs was included in the indicative tasks/skills listed in the classifications structure of the proposed new Blue Care Enterprise Award. The exemptions relating to the Diversional Therapists Award – State 2003 were only inserted into the Blue Care Enterprise Award as a result of our decision of 27 February 2004. Although Commissioner Fisher did not give the QNU the right to be heard in relation to the inclusion of diversional therapy programs into the list of indicative tasks/skills in the classification structure, we consider that the QNU have an interest in the form of the exemption given the reference in the Diversional Therapists Award – State 2003 to “Employees covered by the Nurses’ Aged Care Interim Award – State”. That latter Award is an award of the QNU and in light of the proposed amendments to the exemption clause we believe the QNU should be heard. The QNU argued that the proposed exemption clause is narrower than the exemption that appears in clause 1.3.1(b) of the Diversional Therapists Award – State 2003. The QNU contended that the proposed amendment confines the exemption to what appears to be unqualified Diversional Therapists, whereas the exemption as it appears in the Nurses’ Aged Care Award – State extends to all employees as described in clause 1.3.1(b) of the Diversional Therapists Award – State 2003. We have decided not to approve the amendment proposed by Blue Care in clause 1.5(e). Our decision of 27 February 2004 required that the relevant exemptions from the Diversional Therapists Award – State 2003 be specified and not, as Mr Bennett submitted, the “relevant parts” of the exemptions. The word “relevant” was included in our decision because it was apparent that at least one exemption, that is Members of Religious Orders, would have little relevance to the new Award. The Commission was uncertain about the relevance of the exemptions relating to Recreational Officers, whether qualified or not. We are also concerned that the amendment as proposed by Blue Care will have consequences that were not intended by the Full Bench. In our view the Blue Care Enterprise Award – State 2004 is to be a single Award encompassing six Awards and a certified agreement. It is not our intention that by making this new Award the coverage will be extended beyond those industrial instruments. Accordingly, we accept the QNU submissions on this matter and have decided that the exemption as it appears in clause 1.3.1(b) of the Diversional Therapists Award – State 2003 will appear in Clause 1.5(e) of the Blue Care Enterprise Award – State 2004. 3. Clause 1.6 Relationship with other industrial instruments The QNU took issue with two aspects of this clause viz: (i) the introductory words “Without limiting its scope”; and (ii) the final part of this clause. In relation to (i) the parties to the Award opposed the QNU in both having the opportunity to be heard on the matter and its submissions on the point. The QNU acknowledged that the introductory words were not a matter that had been considered by the Full Bench but nonetheless submitted that they should be removed. The QNU submitted that the scope of the Award is intended to be limited. That limitation is to the operations of the Uniting Church in Australia Property Trust (Q) as specified in clause 1.4 Award Coverage. In opposing the QNU submissions – which Blue Care did not concede the QNU had any right to make – Mr Bennett submitted that Commissioner Fisher had exhaustively dealt with matters arising from this clause in her earlier decisions. The introductory words were not a matter about which comment was passed. In those circumstances Mr Bennett contended the submissions of the QNU should not be considered by the Full Bench. Notwithstanding that the words QNU objects to have not been included in previous versions of the proposed Award we have decided to approve their insertion. In our view little turns on the words and the parties to the Award all support their inclusion. On the second issue raised by the QNU the parties to the Award acknowledged the grammatical difficulties and were prepared to amend the final part of the clause so it reads, “... and the Private Hospitals and Nursing Homes Industry Award – 2003 insofar it relates to Blue Care and its employees who work in a Nursing Home.”. That amendment is approved. 4. Clause 1.8.5 Definition of “Blue Care Facility” This is a new definition which resulted from the Full Bench’s direction that the term “aged care facility” be removed. In its submissions the QNU said that its understanding “... of the inclusions of this definition is that it is intended to assist with the interpretation of clause 4.3(b) relating to casual employment, 6.14 Broken Shifts, 6.2.3 related to meal times, and 6.2.5(a) relating to crib break. The Queensland Nurses’ Union of Employees further understands that the aid in interpretation for these provisions, and these provisions only, is required because of the distinction in some conditions between employees who move through the community and visit clients in their own homes and those employees who work out of premises owned and/or operated by The Uniting Church in Australia Property Trust (Q). On the basis that the definition of Blue Care facility has been included for this reason, and for this reason only, and on the basis that there is no intention to rely on this definition of Blue Care facility for any other purpose at this time or in the future by the applicant or the other parties involved in these proceedings ...”. Mr Bennett acknowledged that the QNU’s submissions had understood the reason why the amendment was proposed in that way. Accordingly, we approve the definition of “Blue Care Facility” as it appears in clause 1.8.5. 5. Clause 1.8.17 Definition of Hostel 6. Clause 1.8.21 Definition of Nursing Home In our decision of 27 February 2004 we determined that: (i) the proposed definition of “aged care facility” was unacceptable and would not be included in the definitions clause; (ii) the term “aged care facility” where it appeared in the body of the first paragraph of clause 1.4 Award Coverage was to be replaced by the term “hostels”; and (iii) the term “nursing home” was to be included in clause 1.4 Award Coverage and defined in clause1.8 Definitions in the same way as it is in the Private Hospitals and Nursing Homes Industry Award – State 2003. -- 3 of 5 -- 1386 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 April, 2004 Blue Care responded to the matters raised by us by removing the definition of “aged care facility” from clause 1.8 Definitions and inserting the term “hostels” in lieu of the term “aged care facility” in the relevant place in clause 1.4. In respect of the matters raised in (iii) above, Blue Care proposed a definition of “nursing home” and “hostel” both of which were taken from the Health Act 1937. In supporting Blue Care’s departure from the decision of the Full Bench, Mr Bennett said that it had always been Blue Care’s view that it was unnecessary to define the terms “nursing home” and “hostel”. That position was taken in light of the decision of the Full Bench in Re: Nurses’ Aged Care Interim Award – State (2002) 169 QGIG 769 where the view was reached that the terms “nursing home” and “hostel” clearly identify the facilities to which various awards of the Commission have application in the residential aged care industry. Although Mr Bennett acknowledged that the Full Bench in the present matter was concerned to not extend the coverage of the AWU and the ALHMWU beyond that which they currently have, those two Unions feared that the inclusion of the definition of “nursing home” from the Private Hospitals and Nursing Homes Industry Award – State 2003 may lead to misinterpretation about what constitutes a nursing home in the industry. The concern about potential misinterpretation arose because the definition of “nursing home” in that Award is out of date and does not reflect the fact that it is now the operator that is licensed. Mr Bennett said that in seeking a resolution to the matter regard was had to the Nurses’ Aged Care Award – State 2003, a relatively recent Award made by this Commission. In that Award, the terms “nursing home” and “hostel” are both defined by reference to the Health Act 1937. Accordingly, Blue Care considered that the simplest and least controversial way forward was to replicate the definitions from the Health Act 1937 into the Blue Care Enterprise Award – State 2004. In submissions for the ALHMWU on this point, Mr Reed of Counsel, argued that the inclusion of the definition of “nursing home” from the Private Hospitals and Nursing Home Award – State 2003, if read literally and left in isolation, could lead to further litigation in this industry. He said that the inclusion of the definitions of “nursing home” and “hostel” from the Health Act 1937 provided useful counterpoints to one another. While he too doubted the need for a definition of “nursing home”, Mr Reed said that if one was to be included then a definition from a contemporary source would be more beneficial. Mr Simpson endorsed the submissions made by Mr Bennett and Mr Reed. He confirmed that the language of the definition of “nursing home” in the Private Hospitals and Nursing Homes Industry Award – State 2003 was quite old and was concerned that if it was included in the Blue Care Enterprise Award that confusion may arise. Mr Simpson agreed with Mr Bennett and Mr Reed, that if definitions were considered necessary, then those from the Health Act 1937 were the more appropriate ones. The parties to the Award objected to the QNU making submissions on the definitions of “hostel” but did not take any specific objection to the QNU making submissions about the definitions of “nursing home”. In relation to the definition of “hostel” we note that this is a new definition proposed by Blue Care as a consequence of our 27 February 2004 decision. It was not a matter that had been before Commissioner Fisher and hence could not have been the subject of consideration by her. Mr Ross, for the QNU, contended that his Union’s submissions in respect of the definitions of “hostel” and “nursing home” arose directly out of the use of the term “aged care facility” and were thus matters about which Commissioner Fisher had granted the QNU the right to be heard. The QNU were granted the right to be heard in relation to the inclusion of “aged care facility” in the body of clause 1.4 Award Coverage and the definition of that term. We consider that the matter of the proposed definitions of “nursing home” and “hostel” stem from the issues arising from the term “aged care facility” and accordingly consider that the QNU should be heard on the proposed definitions. Mr Ross noted that the Full Bench did not require a definition of “hostel” to be inserted into the Award. He submitted that the inclusion of the definition has the effect of circumventing the Full Bench decision and expanding the coverage of the award by expanding the scope of what is meant by “hostel” at the expense of what is meant by “nursing home”. The particular concern of the QNU related to the omission of the words “licensed and unlicensed” from the definition of nursing home. While the QNU conceded that the definitions for both “hostel” and “nursing home” were consistent with those provided by s. 76(B)(1) of the Health Act 1937, the pre- existing definition in the Private Hospital and Nursing Homes Award – State included the words “licensed and unlicensed” and was thus already inconsistent with the definition in the Health Act 1937. Like Mr Bennett, Mr Ross pointed out that under the current legislative regime it is not the premises that are licensed, rather it is the operator of the premises. The position of the QNU was that the definition of “hostel” should be omitted or in the alternative be amended to remove the words “in respect of which a licence is in force”. On the issue of the definition of “nursing home” the QNU submitted that consistent with the Full Bench decision, the definition from the Private Hospitals and Nursing Homes Industry Award – State 2003 should be inserted. If the references to “licensed” and “unlicensed” were to be omitted from this definition then Mr Ross argued that they should not appear elsewhere in the Award, such as in the definition of “hostel”. The purpose of the Full Bench requiring the inclusion of a definition of “nursing home” from the Private Hospitals and Nursing Homes Industry Award – State 2003 was to make plain that the coverage of nursing homes from that Award as it related to Blue Care was being transferred to the new Blue Care Enterprise Award – State 2004. It was not to extend or contract the coverage of the AWU or the ALHMWU. We note the submissions of both Blue Care and the QNU that the legislative regime has altered such that it is not premises which are licensed but the operator of a particular premises. We are concerned that given this change in legislative requirement the definition of “nursing home” as it now appears in the Private Hospitals and Nursing Homes Industry Award – State 2003 was not amended at the time that Private Hospitals and Nursing Homes Award was reviewed as part of the Award Review process. As we understand it, part of the purpose of the Award Review process was to remove obsolete provisions from awards. It seems to us that the words “licensed or unlicensed” fall into the category of obsolete provisions and ought to have been removed. We are concerned then, that if we were to include the definition of “nursing home” from the Private Hospital and Nursing Homes Industry Award – State 2003 into the Blue Care Enterprise Award we would simply be replicating obsolete provisions into a new Award. Clearly, such a course is unsatisfactory. The parties to the new Award and the QNU have each raised concerns about the definition of “nursing home” and have made submissions about the merit of including a definition of nursing home. Having considered the various submissions around this issue, and particularly noting the submissions of Blue Care that their primary position is that a definition of “nursing home” (and “hostel”) should not be included, we have decided to not require a definition of “nursing home”. It follows then that we also do not require a definition of “hostel” to be included either. -- 4 of 5 -- 30 April, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1387 7. Procedural Issues For reasons outlined in our last decision we have not yet determined an operative date for the new Blue Care Enterprise Award – State 2004. That matter will be determined once the latest enterprise agreement is certified by the Commission. We direct the applicant to lodge in the Registry the new Award incorporating the amendments determined herein within 14 days of the date of release of this decision and to provide a copy to the parties and the QNU also within that time frame. The applicant is also required to file any consequential amendments to other Awards that are necessary to be made as a consequence of the making of this new Award also within 14 days of the date of release of this decision. Subject to the approval of the Vice President, those amendments will be heard by a Member of this Full Bench. Order accordingly. A.L. BLOOMFIELD, Deputy President. G.K. FISHER, Commissioner. I.C. ASBURY, Commissioner. Hearing Details: 2004 9, 23 February 19 March 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) (directly instructed) and with him Mr K. Crank for the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. Mr S. Ross and with him Ms L. Nadj for the Queensland Nurses’ Union of Employees. -- 5 of 5 --