C2013/3732, Transcript of Proceedings [2015] FWCTrans 44 (23 January 2015)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1051265-1

DEPUTY PRESIDENT ASBURY

C2013/3732

s.739 - Application to deal with a dispute in relation to flexible working arrangements

Queensland Nurses' Union of Employees
and
Blue Care
(C2013/3732)
Blue Care/ Wesley Mission Brisbane Nursing Employees Enterprise Agreement 2011

(ODN AG2011/12230)
[AE888490 Print PR514930]]




Brisbane

10.13AM, FRIDAY, 16 JANUARY 2015

Continued from 16/12/2014

Reserved for Decision

PN6456

THE DEPUTY PRESIDENT: Good morning. Thank you. Mr Healy.

PN6457

MR HEALY: Thank you, your Honour. Your Honour, the QNU had been in a position to at least forward to the commission and to the other parties its 32-page submission at about 9 o'clock this morning. Unfortunately, that didn't happen. I don't know if your Honour has received it yet.

PN6458

THE DEPUTY PRESIDENT: No, we hadn't, Mr Healy, and I don't think we had before we came in.

PN6459

MR HEALY: My apologies, your Honour.

PN6460

THE DEPUTY PRESIDENT: That's all right.

PN6461

MR HEALY: We will proceed anyway. Can I indicate, your Honour, that a copy of the submissions and related materials of the QNU have been provided to the other parties just prior to commencement this morning. We've also just received a lengthy written submission on behalf of Blue Care, adopting it, of some 75 pages. We've not had an opportunity to consider that yet. We make no complaint whatever about that, particularly having regard to your Honour's directions in respect of the matter. So I will press on with all expedition. Your Honour, if I could hand up to you, for the commission, a copy of the QNU's material. And if I can just explain the content of that briefly.

PN6462

THE DEPUTY PRESIDENT: Thank you.

PN6463

MR HEALY: Your Honour, what you have before you there is an outline of the closing submissions on behalf of the QNU. In respect of many of the matters dealt with, it is indeed more than an outline. It also includes - the outline includes six attachments, your Honour. The attachments contain what the QNU hopes will be transcript references of the relevant evidence, which will assist the commission in arriving at the decisions it needs to make to determine the question for arbitration.

PN6464

The six attachments to the outline of submissions deal with these matters, your Honour, in turn: the schedule 3 classification statement to - if I can adopt the shorthand, the Blue Care QNU Nursing Agreement 2013, and each of the component parts of that classification statement; attachment 2 deals with consumer-directed care, or CDC; attachment 3 deals with the evidence the commission has heard in relation to Blue Care's alleged new model of care, Tailor Made; attachment 4 deals with the issue of the time employees were engaged in various tasks, and in particular in relation to incidental and peripheral tasks; attachment 5 deals with the importance of the work of AINs in the context of Blue Care's overall mission and purpose; and attachment 6 deals with the contention of the QNU that the residents in the residential aged care facilities operated by Blue Care have high-care needs, and that that may have a very material effect upon the findings your Honour makes in relation to the impact or otherwise of various legislative reforms.

PN6465

In other words, that evidence goes to the setting in which the work of the relevant employees is performed. When I use the term "relevant employees", your Honour, I'm simply referring to Ms Scott, Ms Orreal, Ms Vignolo and Ms Morris. And, of course, having regard to the question for arbitration, employees who perform the same or substantially the same work as those employees, but especially the same work as Ms Scott and Ms Orreal.

PN6466

Your Honour, following that, there is an index of the authorities relied upon by the QNU and which are cited in the outline of submissions. For the sake of completeness, your Honour, and for the assistance of the commission, can I hand to your Honour a copy of a recent decision of the full bench of the Fair Work Commission in the Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd (2014) FWCFB 7447, which deals with the principals to be applied in relation to the construction of enterprise agreements. I don't need to take your Honour to any specific parts of that decision. It's provided to the commission as a current or recent decision in respect of those principles.

PN6467

Just finally, in relation to the contents of the material and the folder that your Honour has there, can I alert your Honour to this: in relation to those six attachments, your Honour, attachments 1, 2 and 3 are specifically referenced in the outline; however, attachments 4, 5 and 6 are not. Attachments 4, 5 and 6 go to the time engaged in various tasks by the relevant employees; the work performed by those employees in the context of the overall purpose of Blue Care; and finally, the fact that the residents cared for by these employees principally have high care needs.

PN6468

Could I just ask your Honour to note that the submissions to which that evidence relates are these: attachment 4 relates to paragraph 51 on page 20 of the submissions, so that's attachment 4, paragraph 51, on page 20, your Honour, or thereabouts. Paragraph 51, in any event. That's page 21, I apologise, your Honour.

PN6469

THE DEPUTY PRESIDENT: Yes.

PN6470

MR HEALY: Attachment 5 relates to paragraphs 119 and 120, which are on page 34; and attachment 6 relates to paragraphs 135 to 143, which are on pages 37 to 38 of the outline of submissions. Can I move now, your Honour, to the short submissions the QNU wishes to make in support of that material which has been provided. Your Honour, the submissions which need to be made with respect to the QNU's case are straightforward and succinct. Leaving any other matters for any necessary reply, I intend to be brief. Despite the amount of material in evidence in the proceedings, your Honour, and the length of the hearing, the case for the QNU is a simple one, and it's described simply in the outline of submissions.

PN6471

The QNU's opening of its case is in the transcript at paragraph numbers 219 to 223 of the transcript of 25 August 2014. The QNU's case remains essentially unchanged. The task before the commission is to apply the principle purpose test to the employment of Ms Scott, Ms Orreal and other employees who perform the same or substantially the same work as those named employees. As the Fair Work Commission said in Tucker, which is in the QNU's bundle, "That involves an examination of the duties performed by the relevant employees and determining whether those duties are aligned with" - in this case, the schedule 3 classification statements to the Nursing Agreement 2013.

PN6472

The QNU's essential submissions in this respect, your Honour, are pages 11 to 34 of the outline of submissions in the folder that your Honour has. I certainly don't read or repeat those. May I simply summarise the key submissions, your Honour, and they're these: the documents used by Blue Care and in evidence in the proceedings, such as position descriptions, duties lists and job advertisements, described in plain, unambiguous and obvious detail the work of an AIN as it is, in turn, set out and described in the schedule 3 classifications statement to the Nursing Agreement 2013. The QNU submissions in that respect are particularly at pages 14 to 23.

PN6473

Where it was possible to compare position descriptions and duties lists, your Honour - and that was particularly able to be done in respect to Erowal at Maleny where Ms Orreal is employed - it's clear that the duties performed by an AINs and PCs - that is, AINs and PCs as Blue Care classifies those employees - are essentially the same. The finding that the QNU asks the commission to make in this respect is that the employees Blue Care chooses to classify as PCs are in fact AINs performing the work which is set out in and described in the schedule 3 classification statements to the Nursing Agreement 2013.

PN6474

Ms Suller, the facility manager at Erowal, told the commission under cross-examination that the differences between the work of the employees who Blue Care classifies as AINs and PCs is subtle. She used the term "subtle differences". The difficulty with that is that she just couldn't say what any of those subtle differences might be. In her witness statement she nominated the assistance with medications. Your Honour, on the basis of all of the evidence before the commission, won't be persuaded that that issue in any way delineates the roles between an AIN or a PC, and medications issue is dealt with in some detail in the written outline.

PN6475

The duties lists, guide or otherwise, changing by way of updates or otherwise, describe the work of an AIN in the schedule 3 classifications statement to the Nursing Agreement 2013. The QNU's overarching contentions regarding the duties lists are at pages 17 to 20 and from paragraphs 49 to 50 of the written outline. Your Honour, a detailed examination of the work or duties performed by Ms Scott and Ms Orreal and others, such as Ms Vignolo and Ms Morris, and how very closely that work aligns with, or is the same as the work of an AIN as set out in the Nursing Agreement 2013, is assayed on pages 23 to 32 of the outline.

PN6476

The evidence from all relevant witnesses on each aspect of the classification statement was extensive. The submissions and the transcript extracts which are provided in respect of the classification statement to the Nursing Agreement 2013 seek to capture and summarise the essence of that. Your Honour, the essential submissions on behalf of the QNU are set out in paragraphs 113 to 120 on pages 33 and 34 of the written outline. Very briefly, they are that the duties performed by the relevant employees are those of an AIN. Very materially, that Ms Scott, Ms Orreal and those like them do not perform other duties of a domestic or incidental or peripheral nature which in any way change the role in any qualitative sense.

PN6477

Blue Care contends that the role of a PC is broader and more flexible. The commission will have noted in the witness statements filed on behalf of Blue Care and in some of the oral evidence from Blue Care witnesses, insistent and incessant references to the broader and more flexible role and the wider variety of duties performed by PCs. Your Honour, such a claim is vague, general, unsupported and unsubstantiated on the evidence, and it's a claim which the QNU also deals with in the written outline.

PN6478

The matters which are raised in the amended outline of submissions of behalf of Blue Care as permitting, justifying or explaining the classification of such employees as PCs, do not permit, in the QNU's submission, Blue Care to avoid its obligations to classify such employees as AINs under the Nursing Agreement 2013. The QNU deals with those five matters: that is, Tailor Made; purported legislative changes; managerial prerogatives; negotiations around the making of the Nursing Agreement 2013, in the submissions.

PN6479

Ultimately, your Honour, the QNU contends that it is a straightforward matter for the commission to conclude that the principle purpose of the work performed by the relevant employees is the work that's set out in schedule 3 classification statement to the nurses agreement. As AINs, the role is to assist to improve the health and well-being of the residents. In Tucker, your Honour, the commission notes as a relevant factor in the application of the principle purpose test, the relevance particular duties in the context of the employing organisation's overall purpose.

PN6480

The witnesses for Blue Care unanimously agreed with the description in the Tailor Made material annexed as GW4 to Ms Webby's statement, that in short form the mission and purpose is to improve the health and well-being of individuals, families and communities, et cetera. Mr Davy, your Honour, gave some very frank evidence throughout the course of his cross-examination, in my submission. Part of that evidence is extracted in paragraph 61 of the QNU's outline, and it's from paragraph number 4943 of the transcript. It's on page 23 of the outline, your Honour, at the top of the page. The question put to Mr Davy was:

PN6481

In relation to this job advertisement here, that's why Blue Care would advertise for personal carers who have demonstrated understanding and experience with the frail, aged, and those with dementia?

PN6482

Mr Davy's answer, "That's primarily what we do in our service." That answer is Frank, credible, reliable, and can be acted upon, your Honour, because the evidence in the case is that in the old language, at the two facilities of central importance to the case; Azure Blue, Redcliffe, and Erowal; the percentage of high care residents is about 90 per cent, and about 80 per cent as at the time of the proceedings, so the duties performed by Ms Scott and Ms Orreal and others who do work which is the same or substantially the same, are not just entirely consistent with the mission and purpose of Blue Care, they are centrally relevant to it. They are, in fact, the essence of the service which Blue Care provides to its clients in residence in residential aged care facilities, and its mission in that sense.

PN6483

Your Honour, the QNU's primary contention is that the question for arbitration may be answered in this way: that firstly the work performed by the relevant employees is that of an AIN; and secondly that none of the five so-called or alleged contextual or other bases raised by Blue Care alters the principle purpose of the work, nor does it permit Blue Care to avoid its plain obligations to classify that work is the work of an AIN under the Nursing Agreement 2013, an agreement it negotiated with the QNU and the AWU which it voluntarily entered into and which it agreed to be covered by.

PN6484

Your Honour, unless your Honour has any particular questions about the QNU's case, I propose to make some brief submissions in relation to just two aspects of Blue Care's case at this point.

PN6485

THE DEPUTY PRESIDENT: Yes.

PN6486

MR HEALY: Your Honour, the submissions in relation to Blue Care's case are made from pages 34 to 42 of the written outline, and the submission seeks to deal with the five matters raised by Blue Care in its case. When I say the five matters raised, they are the five matters which appear to arise from the amended outline of submissions filed 19 May 2014.

PN6487

In summary, those five matters are: (1) that the PC role is somehow a broader and more flexible role; (2) that the legislative changes in the aged care industry, a number of them mean that the move to employing PCs rather than AINs is, in its industrial context, permissible, necessary or justifiable; (3) that the gradual, but by no means complete introduction of an alleged new model of care, the Tailor Made model, necessitates the employment of PCs rather than AINs; (4) that it was somehow the intention of the parties - that is, Blue Care, its employees, and perhaps the QNU and AWU - that the employees who Blue Care chooses to classify as PCs, who are performing the work of AINs, would nevertheless not be covered under the Nursing Agreement 2013; and fifthly that Blue Care is entitled, as a matter of managerial prerogative, to employ Ms Scott and Ms Orreal and employees that perform the same or substantially the same work as PCs.

PN6488

The only two of those five matters I wish to take your Honour to at this stage are the matters relating to the negotiations around the Nursing Agreement 2013 and the issue of managerial prerogative, and deal with both of those briefly. The first matter, your Honour, is the apparent claim that on an objective view the commission ought to conclude that the QNU somehow agreed that employees classified by Blue Care as PCs and who were performing AIN's work, would not be covered by the Nursing Agreement 2013.

PN6489

The submission of Blue Care seems to be that the context of the making of the Nursing Agreement 2013 included an agreement, express or implied or to be inferred, that employees classified by Blue Care as PCs but performing the work of an AIN, properly understood under the Nursing Agreement 2013, would not be covered. The QNU submits that that submission must be rejected for at least the following reasons: your Honour is perhaps as well placed, if not better placed than the parties before the commission to fully comprehend and understand the industrial history between relevant parties in relation to this issue of the work performed by AINs and PCs at Blue Care and the coverage issues surrounding them.

PN6490

In part that history, of course, involves the making of the enterprise award in 2004, which in essence determined that AINs would work in what were nursing homes and high care facilities, and that there would be a strict demarcation and that PCs will work only in hostels. That solid industrial understanding of the parties, an understanding imposed by the commission in that decision, was carried through various agreements, including the nursing agreement 2011, the Nursing Agreement 2013, and what is still the current agreement, the Blue Care AWU LHMU Agreement 2005, as varied in 2008.

PN6491

The next point, your Honour, is that what the QNU ask the commission to bear in mind in considering this claim by Blue Care is the context at the time at which Ms Town, Ms Bradley and others were meeting with Ms Semple and Ms O'Connor and the QNU generally, negotiating the Nursing Agreement 2013. The current agreement which cover personal carers, a term which had no serious content in it in that agreement, was the 2008 agreement. There is - and I don't need to take your Honour to the relevant part of the classification statement to that 2008 agreement - there is no content to the personal carer role relative to the content - to the comprehensive content of the classification statement in schedule 3 to the Nursing Agreement 2013.

PN6492

The third matter to which the commission will have regard in assessing Blue Care's claims in this respect is the evidence in these proceedings, of course. And in my submission, essentially that evidence is the cross-examination of Ms Semple in respect of these matters and the exhibits which were tendered during the course of that cross-examination.

PN6493

Your Honour, to deal with matters of context and matters of construction very briefly. In terms of context - and I've very recently re-read the cross-examination of Ms Semple - the evidence is that no such agreement or consent can be discerned. It's not expressed, it's not to be implied, it's not to be inferred. The commission is only too well aware of the relations between the parties at the bar table in relation to this issue, so the commission is not going to be persuaded any day of the week that the QNU consented to any such notion or the notion that's promulgated by Blue Care in this respect.

PN6494

Just a couple of references to Ms Semple's answers under cross-examination in respect of this issue will put the commission's mind at ease and enable the commission to readily make the finding which I'm submitting is the appropriate funding, and that is that the QNU at no time can be taken to have agreed to or have ceded coverage of employees classified by Blue Care as PCs but who workers AINs. It's not just coverage issues, it's a question of any agreement that those employees who Blue Care chose to classify as PCs were not working as AINs. At PN 3221 it was put to Ms Semple that:

PN6495

To avoid the battle, as you've described it?---Well, that was one aspect. The other aspect was that we were - we saw the work - - -

PN6496

This is Ms Semple's answer:

PN6497

We saw the work they were doing was AINs and could be covered by this agreement.

PN6498

So the QNU's position at the time was that the work of the employees who Blue Care had advised the QNU they were going to classify as PCs, the QNU said straight up, "No, that's the work of an AIN." Even more strongly, your Honour, if one goes over to transcript of that cross-examination at PN 3271, Ms Semple's simple, straightforward answer there:

PN6499

Well, my recollection is that my major reaction to it was to tell Ms Town that this was going to be a huge issue for the QNU and that we would be pursuing it, as we did, by starting this dispute.

PN6500

And finally, just by way of one further example, your Honour, at PN 3282 Ms Semple says in answer to a further question on the subject, "Yes. If you go back to my recollection of that meeting, what I do recall" - and this is the meeting on 15 February 2013, the double-cross:

PN6501

if you go back to my recollection of that meeting, what I do recall is that I said that this is going to be a major issue for the QNU, and I was actually completely taken aback that Blue Care would tell us one thing at our bargaining meetings and then another immediately after the negotiations had concluded.

PN6502

So, your Honour, there is no concession of any sort, either in the material in the exhibits or in Ms Semple's evidence, that could lead the commission to a finding based on the facts or any reasonable inference that the QNU had in any way agreed to what was being put by Blue Care about its proposal to in future classify AINs, or persons performing the work as an AIN, as a PC. That submission deals with some issues of context, your Honour.

PN6503

If I come directly to matters of construction, then; because, of course, Blue Care asserts, correctly, that the commission is required to interpret - or construe and apply - the terms of the Nursing Agreement 2013. Not a massive issue in this case, your Honour, in my submission, because the terms of the classification statement are plain and unambiguous on their face. But in construing the terms of the Nursing Agreement 2013, the commission will look at the context, including the circumstances surrounding the making of the agreement and the industrial context in which the work is performed.

PN6504

Very briefly, some of the salient facts are well-known. They are in evidence in these proceedings. They were adduced primarily during that cross-examination of Ms Semple, but principally the nursing agreement was negotiated between October 2012 and February 2013. On 15 February 2013, a Friday, four or five days into the access period for the proposed Nursing Agreement 2013, Blue Care require an urgent meeting to - contrary to everything they had said to the QNU during the bargaining negotiations - advised the QNU that they had no intention of employing AINs again.

PN6505

The ballot was scheduled for, and took place on 26 February 2013, just 11 days later. But when one excluded weekends, having a look at the calendar, the QNU had just seven business days to react, and it did. It reacted immediately, advising Blue Care that the matter - that they did not agree with the position adopted by Blue Care; that they were in dispute with Blue Care; and that the matter would be a major dispute. The dispute was lodged in March 2013; it's this case, and it has led all of the parties here today, your Honour.

PN6506

And, of course, in terms of the construction, overlaid upon those matters, your Honour, is the history of the industrial arrangements in relation to AINs and PCs between the parties, and the enterprise agreements, which were at that time in place. So at that time the QNU only had to consider, in the context of this position adopted by Blue Care, the 2008 agreement, which included a two-line description of what a personal carer was or did; a position description with no content. Blue Care, of course, has sought to change the position dramatically since that time, but the context in respect of how one ought to interpret the conduct of the QNU in late 2012 and early 2013, and the terms of the Nursing Agreement 2013, is all about what occurred at that time.

PN6507

Your Honour, in the QNU's submission there's no cogent evidence on which the commission could make a finding or draw an inference the QNU consented to ceding coverage of the work of any AINs which Blue Care either had, as was the case at Azure Blue at Redcliffe, or proposed to in future re-badge as the work of PCs. I might make one final submission in respect of that matter, your Honour, and that was it was put to Ms Semple in cross-examination that, you know, the commission might make such - the implicit submission was that the commission might make such a finding because if the QNU really had any concerns, they might seek something like a scope order.

PN6508

I suppose the first point is they notified Blue Care immediately that they were in dispute. They were not a bargaining representative at the time, so they had no standing to bring a scope order. The full bench in Mermaid Marine says a scope order is not a particularly useful remedy; firstly you've got to be a bargaining representative, secondly you've got to be able to demonstrate a lack of bargaining in good faith, and so forth. When one reads that Mermaid Marine decision as a whole, what the full bench is really saying is that the real value and the important objects of the Fair Work Act in respect of enterprise bargaining relate to a party's seat at the table and its opportunity to bargain for the agreement that it wants for its employees, who it believes it has the constitutional coverage of.

PN6509

Finally, your Honour, I just wanted to make a brief submission in respect of the claim that the commission need not interfere with the arrangements which Blue Care has sought to put in place because Blue Care is entitled to take the action that it has as a matter of managerial prerogative. Your Honour, I simply refer in this respect to paragraph 150 of the written outline of the QNU's submission and the decision of the High Court in Re Cram. For some reason, relevant parts of that decision, a 1987 High Court decision, don't find its way into the Monash decision, and therefore don't find their way into Blue Care's amended outline of submissions.

PN6510

There the High Court says in respect of this submission that industrial tribunals ought not interfere with matters of managerial prerogative, or at the very least ought to exercise great caution. The High Court says:

PN6511

We reject the suggestion that managerial decisions stand solely outside the area of industrial disputes and industrial matters. There's no basis for making such an implication.

PN6512

They say there, "Many management decisions are capable of generating an industrial dispute." The High Court goes on further, and it's in paragraph 29, which is an extract from the AustLII version of the decision, and it's set out in paragraph 150 of the written outline that, rather, it's an argument why an industrial tribunal should exercise caution. It goes on to say:

PN6513

Where that award amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted.

PN6514

Your Honour, the matters which are before the commission in this dispute, in my submission are not essentially matters about Blue Care's autonomy to manage its business in relation to how it should be efficiently conducted. That is because in relation to Ms Scott, Ms Orreal and employees like them, the evidence plainly is that the facilities at which they work, the residents for whom they care and work that they perform is the same, or essentially the same as it has always been, so there is no justification for the changes which Blue Care has sought to make and which it has, in fact, made.

PN6515

Of course, in its previous written outline of submissions the QNU said this, if your Honour will just bear with me a moment. In paragraph 9 of the QNU's outline of submissions in reply of 4 December 2013 at paragraph 9, citing relevant authorities, the QNU makes the submission that the test is for the commission to examine all of the facts and not to interfere with the right of an employer to manage his own business unless the employer is seeking from the employees something which is unjust or unreasonable. Well, in the QNU's submission it is unjust and unreasonable for Blue Care to employ such employees who perform the work of an AIN as PCs and classify and pay them under a different agreement; the notorious facts in relation to which are that the pay and conditions are lower.

PN6516

Your Honour, the QNU's submission is otherwise that the matters raised by Blue Care will not affect the commission's determination on the question for arbitration. Those matters are relating to other legislative changes: Tailor Made; and the allegation that the PC role, as it exists at Blue Care, is somehow broader and more flexible. The legislative changes - that is the changes from, for example, nursing homes, hostels and high care/low care distinctions, and ACFI as opposed to RCS; they deal with funding of aged care, they're not relevant to staffing matters, and those issues are dealt with in the written submission.

PN6517

The uniform evidence is that CDC does not apply and may never apply. It's irrelevant. The QNU is content to rest on the written submission it makes in respect of Tailor Made and the transcript extracts in regard thereto. Unless I can assist further at this stage, those are the submissions.

PN6518

THE DEPUTY PRESIDENT: Thanks, Mr Healy.

PN6519

MR HEALY: Thank you, your Honour.

PN6520

THE DEPUTY PRESIDENT: Mr Parry.

PN6521

MR PARRY: If the commission pleases, we have reduced our submissions to writing. I hand up a copy of our submissions to the commission. We also have authorities that are coming, which we will provide to the commission. I have been provided with the written submissions my learned friend referred to, but I haven't looked at them yet. I'm going to ask for 10 minutes to have a look through those submissions. I don't anticipate the submissions that I will make following that to be extensive or lengthy, but that will give me the opportunity to have a look through what's there to see if anything in particular needs to be dealt with.

PN6522

THE DEPUTY PRESIDENT: Thanks. We will adjourn for 10 minutes.

<SHORT ADJOURNMENT [10.57AM]
<RESUMED [11.15AM]

PN6523

THE DEPUTY PRESIDENT: Mr Parry.

PN6524

MR PARRY: If the commission pleases. In some respects the matter is relatively straightforward. It involves asking: what does the employer require of employees such as Ms Orreal and Ms Scott? And in light of what is required, which of the industrial arrangements was intended to objectively, and does apply to such employees? Is it the nurses' agreement; is it the 2008 agreement? And what relevance does the 2013 agreement made have? The written submissions we've handed up commence with an introduction, and then they go to the approach to the dispute.

PN6525

Our position is that the commission is being asked to interpret and apply particular provisions in schedule 3 of the nursing agreement, but the dispute before the commission is not to be resolved by simply looking at that agreement in isolation. As we say in our written submissions, one needs to, in dealing with this dispute, look at all the surrounding facts. This is not a prosecution or a contravention case; there's a dispute before the commission that needs resolution, and the QNU's submissions rather come to this question in a very narrow focus. Everything is seen through the prism of the nursing agreement.

PN6526

There is virtually no reference in their submissions to the 2008 carers' agreement, and there is simply no reference to the agreement that was made by Blue Care and various of its employees, presumably including, as a matter of law, Ms Scott and Ms Orreal in March 2014. It's as though those matters are somehow airbrushed out of the picture and one should only focus on cramming the particular facts, circumstances, that have been placed before the commission into the nurses' agreement. Our position is that to approach it in that way would not be appropriate.

PN6527

The position that has been apparently taken in the union's submissions is to set out the question, set out some principles on construction of industrial instruments, which then disappear and aren't utilised later on, and launch straight into what is described as the principal purpose test. Our position is that one starts with a construction exercise. One looks at all the circumstances and conducts a comparative exercise between these various instruments that have been made at Blue Care with the various employees that are employed there.

PN6528

To simply launch straight into a principal purpose test, particularly in the way the union has done it is, we would say, not appropriate. The principal purpose test, insofar as there are a number of tests which come under that sort of heading, is really one that can only be applied when one works out, on a proper construction, what the employment is about, what the employer and the employees have agreed, and what the industrial instruments mean. Our position, as we say in our outline, is that in looking at that, there are a number of issues the commission should - and we say is obliged - to look at the negotiation of the nurses' agreement and the context in which it was made.

PN6529

One would then ask: what do the parties intend? The outlined that we've handed up takes the mechanism through, and we have paragraph 2.8 where we say the outcome is that what has been the position of Blue Care is that there is a classification of personal carer or personal support assistants; that particular job is designed to provide a flexible range of duties. We clearly accept that there is an overlap with the caring duties of those classified as AINs, but the performance of some such duties - again, our learned friend and the QNU attempt to cram everything under the heading of nursing - does not convert such employees into ones that should properly be classified as AINs.

PN6530

The issue really needs to be considered in the context of what these instruments mean, so it's a broader exercise than simply referring to some principles of statutory construction, then not applying them, and then simply looking at the nurses' agreement in isolation of every other industrial instrument made or applying at the operations of Blue Care. Now, we have set out some principles with regard to the construction of industrial instruments - unremarkable. We have set out the classifications in part 4, which firstly there are classifications in schedule 3 of the nursing agreement, and that refers to the role of assistant in nursing and sets out various indicative tasks.

PN6531

There are also another couple of levels. As this commission is aware, the current binding industrial instrument at Blue Care in respect of persons that would fall within the category of personal care workers under, for example, the Aged Care Award, is the 2008 carers' agreement, and we've set out on page 7 the descriptions in level 1, 2 and 3. And the commission will note on page 9 that there is a category of personal carer, meaning, "One who is not a nurse who undertakes a range of duties that assists in the care of a client or resident. And there is also as we say on page 10, level 3, personal carer:

PN6532

Which will 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.

PN6533

Now, the commission is aware that that agreement was one made originally in 2005 and was extended. The legislative underpinning of that agreement is not automatically straightforward. We have concluded in our submission at appendix A, which is on page 76, which goes into this in a bit more detail because it gets into that area of pre-modern state awards and various other things that hopefully are in the past. However, from that, it's clear that that's an agreement that expired some time ago; it reached is nominal expiry date on 31 December 2011, and thereafter the employer, Blue Care, sought to make a new agreement with various people that were working as PCs and others in the business.

PN6534

This commission is well familiar with the process of negotiations that was gone through and lead to the making of a 2013 carers' agreement by ballot in March 2014. Now, we're not aware whether there's a copy of that before the commission. We can provide a copy. We say it's relevant matter in the resolution of this dispute. As I indicated, we can provide a copy if the commission so requires. We are aware that they have been other proceedings with the commission has copies of that agreement.

PN6535

THE DEPUTY PRESIDENT: Yes, I do.

PN6536

MR PARRY: You do require?

PN6537

THE DEPUTY PRESIDENT: No, I do have copies of it.

PN6538

MR PARRY: All right. Clearly that - our position is when the commission comes to resolve this dispute, one looks at the position as of now. When the commission comes to exercise the discretion to powers that are given to it, it will be exercising those powers now. And it will be exercising those powers in the context of the current circumstances at Blue Care, and the current circumstances at Blue Care are that the 2005 - extended 2008 agreement provides the legal underpinning for conditions for personal carers. However, the personal carers are being paid wages in accordance with the 2013 carers' agreement. So both instruments, we say, have relevance to this particular dispute.

PN6539

They also have relevance because the 2013 carers' agreement was made by ballot of employees. It reflects what the employees, the bargaining representatives and Blue Care intend and want to be the terms and conditions applying in respect of personal carers as well as a range of other tasks. And we've set out in our submission is the particular indicative responsibilities and classification structures which appear in that agreement. And the particular provisions which are relevant are in paragraph 4.6, which deal with various responsibilities of what are described as PSAs.

PN6540

Then it comes to what we do about the nurses' agreement. We have, in our submissions: interpreting the nurses' agreement, the above classifications need to be read in a context. One doesn't just launch into line by line review of particular matters in a classification clause. One should, as all the authorities tell us, give some consideration to what's said in other parts of the agreement. When one turns to other parts of the agreement, it's of assistance to this commission in noting what we set out in paragraph 5.2 and onwards. The nursing agreement clearly has a very strong focus on nursing care; the carers' agreement speaks more broadly of commitment to high quality of care and so forth.

PN6541

The particular categories that the submissions of the QNU spend much time focusing on are dealt with at a broad level in paragraphs 5.6 onwards. I note in the written submissions that much is made of the fact that employees such as Ms Scott and Ms Orreal work under the supervision of a registered nurse. Well, we say, as we do in our submissions, that all care staff would generally work under the supervision of a registered nurse because the registered nurse is generally appointed as the supervisor on a shift. The supervision that is conducted by a registered nurse is general supervision of a range of staff and can deal with a range of matters. It might deal with maintenance matters, it might deal with medical matters, it might deal with shift matters. So simply pointing to the supervision of a registered nurse doesn't really answer the question.

PN6542

Clearly, when one is referring to the supervision of a registered nurse in context, one is referring to the supervision of a registered nurse with regard to the work that classification is intended to apply to, which is the provision of quality nursing care, and clearly that's made clear by the first indicative task. So simply pointing to supervision doesn't really answer any question. If one followed that approach, which it appears the QNU is enthusiastic to do, everybody would be an AIN. Then there is reference to the other various activities that appear in the nursing agreement, and words such as care plans and reporting of concerns have a context. They have a meaning.

PN6543

One doesn't simply say, "Well, everything that's in a care plan is nursing care." That cannot be right. If a staff member performs work that's consistent with a care plan, that cannot mean those people are necessarily AINs. These terms need to be read in a context, consistent with the terms of the agreement. Again, dealing with what's said in the nursing agreement, I think the second indicative task - with regard to the first indicative task, our position is that it's a narrow and specific task. It's specifically designed to deal - and does expressly deal with what is nursing care. Clearly that is what that agreement contemplates.

PN6544

The second indicative task refers to providing information relevant to the development of care plans. Clearly Ms Orreal and Ms Scott don't develop care plans, and it really doesn't answer the question again in a circumstance where all care workers are required to report changes in health matters. They're not doing that for the purpose of developing care plans. Similarly with reporting promptly any observed changes or concerns in resident health status; that's not an obligation that's peculiar to nurses, it's an obligation that's across all care staff, and that’s made crystal clear with regard to the 2013 agreement, which makes that a clear obligation.

PN6545

It's important to note that within the nursing agreement and within what's said in the indicative tasks, there's simply no reference to the domestic, hospitality, social or pastoral sort of duties that Blue Care wants and expects its PCs and PSAs to perform. There's simply no indicative task there that covers these sorts of matters. Now, of course, our learned - the QNU simply dismisses all such things as peripheral or incidental to nursing duties. It sort of whitewashes them out of the equation by saying, "They have no significance in this matter because they are merely incidental or peripheral to nursing duties."

PN6546

Ultimately the commission will have to make a decision on the significance of the requirement that that's what the employer wants. These duties are performed. They do take up amount of time. They are duties that are required, and they're duties that are set out in the various duty lists in great detail. Indeed, when we make that submission, of course, there is much evidence from Blue Care about what it requires, what it wants of employees. We then go on in the outline and refer to context. My learned friend has handed up the Golden Cockerel case.

PN6547

We then deal with, in our outline, with the history of industrial regulation of nurses at Blue Care. There was an agreement made in 2011, and that was to operate for a short period of time. That was an agreement that made some changes; and it was voted on and supported by the various union representatives and Blue Care. Then in 2012 the QNU sought to commence negotiations for a new agreement to cover that. We deal with this in a bit of detail because it's important to recognise that the making of this agreement didn't occur in some sort of isolation; didn't occur absent the context. That's of assistance in working out who the parties intended, objectively, was to come within the classification structures.

PN6548

Our position is, as we say at page 19 at paragraph 5.31, that context is relevant because it would be - for example, an employee - Ms Orreal, I think, was the longest serving employee. It would be a curious outcome to contemplate that the nursing agreement covered her when performing the same or similar duties as she does now, and has for a number of years, working in the classification of a PC; didn't receive an NERR; certainly had no-one representing her in bargaining; didn't vote. And now it's said: well, at all times, apparently, that nursing agreement covered her employment. That would be a curious outcome, and one that would be inconsistent with commonsense, one would respectfully submit.

PN6549

We go on with the necessary legal consequences of this sort of argument, and we say ultimately it's an important contextual consideration in working out who were the cohort of employees that were intended to be covered by the nursing agreement. Also our position is that when one looks at the making of the nursing agreement and asking who it was intended to cover, was the fact that by the time it was made in March 2013, there had been significant changes in the legislative framework, which removed some of the foundations for the demarcations that had existed in the past.

PN6550

We deal with some of these matters: the ACFI - aged care funding instrument matters; the 10-year plan, living longer, living better; the movement towards CDC. These were all changes that were taking place or in prospect when the 2013 agreement was made. And it should be presumed that that agreement was made recognising and consonant with the legislative scheme. Another matter of some significance in trying to work out who the parties intended the classification structure to cover was the process of award modernisation. Award modernisation is an important consideration in this because by the time it had come to March 2013 or thereabouts, there had been and was made two awards, and they were modern awards. One was called the Aged Care Award and the other was the Nurses' Award.

PN6551

These awards were presumably made consistent with the provisions of section 134 of the Act. That was to ensure that modern awards provided a fair and relevant minimum safety net of terms and conditions, taking into account a range of matters; one being the need:

PN6552

(g) To ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards.

PN6553

The Aged Care Award, being the award that was made, presumably in respect of employees in the aged care sector, had within it a couple of provisions; firstly about coverage, the provisions - I think it's a standard provision in modern awards the commission would probably be well familiar with, and I quote. 4.7 reads:

PN6554

Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

PN6555

I think one of the modernisation decisions, when referring to this standard provisions which went in, recognised that it had its own issues in some ways, with the tests of "most appropriate" and "to the environment"; but this provision appears in all awards, including the Aged Care Award and the Nurses' Award in clause 4.8. So once the full bench had made these awards it had, presumably, set minimum terms and conditions for the employees of Blue Care, as well as other employees in the aged care industry.

PN6556

Our submission is - logically, but it's not essential for our purposes - that if one was to follow the processes in 4.7 or 4.8 of either award and ask: which is the most appropriate to the work performed by the employee? One would say in respect of those classified as personal care workers that given that there's a provision in the Aged Care Award, that that would be the appropriate award. However, that's the context in which both the nursing agreement was made, and the context in which the proposed 2013 carers' agreement is to be made; that is, the underpinning awards firstly refer to personal care workers in the aged care industry, a couple of grades; and with regard to nurses, have specifically dealt with the position of AINs.

PN6557

Importantly, we've set out in 7.6 of our outline what the full bench said, and they said - and there was a debate about the classification or nursing assistant. The commission was asked to delete it and to make it more relevant, and said there were concerns about an overlap between this classification and the personal care worker:

PN6558

We have decided to retain the classification in the Nurses Award 2010 and make it directly relevant to the work of nurses. In addition, we have adopted the suggestion regarding salary points at certificate III level.

PN6559

Clearly, following the debate and following the legislative imperatives, that was the approach of the commission to setting minimum terms and conditions for nurses, and nurses that were working in this sector. The AIN position was to be one that was made directly relevant to the work of nurses. To that end, the word "solely" that was inserted has some significance. It's clearly intended to have the result contended by the full bench. That's the contextual matters that are before the commission when it comes to considering the nursing agreement.

PN6560

In part 8 we go to a correct construction of the nursing agreement. We make some propositions. No doubt the commission might draw others from that material, but clearly it's recognised by the commission that in the aged care sector that can be personal care workers. Once we accept that there can be personal care workers in the aged care industry, then we note that the aged care award doesn't go into great detail about what they do, but clearly there was a debate about it. Clearly that category of employee can perform a range of functions that does not make them and AIN.

PN6561

This award was made and the 2013 agreement was made at a time when the distinction between low care and high care and other such distinctions had disappeared from the industry. They had certainly disappeared from the operations of Blue Care. And also at the time the agreement was made - the nurses' agreement - there were other things going on, that was Tailor Made had been introduced from early 2012. It's all very well for the QNU to dismiss this and just say it is the weakest part of the case and so forth. Ultimately the commission will have to make a decision on: what does the employer require? What does the employer want?

PN6562

Simply dismissing the idea of Tailor Made, we say is not appropriate. It's clearly something that has been introduced; it is clearly important to Blue Care; it clearly influences the work that they want of employees. It's an important consideration. Further, there was also, at the time the nursing agreement was made, negotiations to replace the 2008 carers' agreement. It can't be seriously suggested that objectively QNU weren't aware that there was a bargain going on. And further, by the time we get to March 2013 there were personal carers such as Ms Scott, such as Ms Orreal, who were working with residents with a range of acuities; that is, people that formerly might have been high care, medium care or low care.

PN6563

We ask rhetorically, if someone had said to Blue Care in March 2013, "Well, do you appreciate that when you make this agreement you will have the consequence that employees such as Ms Scott and Ms Orreal will become covered by this agreement and not be PCs any more or covered by the 2008 agreement, not be covered by the proposed agreement you're negotiating with the union, but are now going to be covered by the nursing agreement?" Now, we totally agree you can't say what they intended that, because they didn't say anything at the time. That wasn't a matter that was on the radar of anybody.

PN6564

What was on the radar of both the union and the QNU and Blue Care was the making of an agreement which basically reflected existing classifications. That's what they wanted. They didn't want to expand classifications or narrow them, they wanted exactly the same coverage as had previously existed. That's why everyone that voted on it were people that were classified as an AIN. That's why the people that were classified as PCs did not vote, so that was the intent. Our submission is, respectfully, that's what they got. To now turn up and say they got something different, they actually won first prize - that is, the coverage of a large slab of the rest of the employees of Blue Care - would be, again, a remarkable outcome, not objectively intended by any of the parties.

PN6565

We then deal with a summary of the evidence. This starts on page 27. There's an overview of the various witnesses that gave evidence. There is some doubling-up in some of this, if your Honour pleases, but no doubt the commission would prefer to read more than less - not necessarily.

PN6566

THE DEPUTY PRESIDENT: I think forests have been felled in pursuit of this matter, there's so much paper.

PN6567

MR PARRY: Well, a little bit more won't make a lot of difference, then, I suppose, is one argument for that. However, we've gone through the position with regard to care models. That's on page 30, Tailor Made. And the union, with regard to their submissions, are fairly dismissive of this. It's a matter of no importance to them. They say it's a matter of no importance to the commission. Indeed, I think they say somewhere that it's the very least compelling part of the case. Well, unfortunately for our part, it is a matter that was in existence; it was important; it was an important contextual matters; it did have an effect in regard of what the employer required.

PN6568

We then deal in a bit of detail with the position of Ms Orreal and Ms Scott on page 35 and onwards, and we go through. There is much evidence in this matter. Hopefully we've put it in a form that can be followed, but the commission will - or may - need the evidence of such things as what people did on a daily basis, what their duty statement said, how much time they spend on doing things. I know that how much time is not a decisive consideration, but neither is it an irrelevant consideration either.

PN6569

When one has circumstances where employees such as Ms Scott and Ms Orreal are taking an hour to assist people having breakfast and are spending significant amounts of time cleaning and performing tidying duties or washing duties, then it becomes more difficult to just dismiss these various duties as somehow peripheral or incidental to nursing duties. Indeed, we would say they're not peripheral or incidental to nursing duties at all. They stand alone as functions that the employer wants and requires done, and they are of significance.

PN6570

That sort of detail is set out in the submissions up to page 46. We then deal with various of the other employees and persons that gave evidence and draw certain conclusions regarding that particular evidence and that particular detail. In a way, on page 55 we deal with Mr Shepherd's statement. Mr Shepherd's statement, curiously, is one that is of virtually no assistance to the commission apart from this; that is it's really a partisan submission to extend the coverage of the QNU in the aged care industry.

PN6571

In a way, what he's saying there, whilst it is not backed up by any evidence and is inconsistent with some of the attached documents, shines a bit of a light on where the QNU is coming from with regard to this. It's almost re-running arguments that they could have all should have run in the award modernisation process. It's going, in a way, we say counter to the observations of the full bench in relation to the aged care sector. That is a place, respectfully, we and the commission should not end up.

PN6572

On page 57 we deal with findings of fact, and we have set out matters that we say can be the subject of findings of fact. We do make the point that Ms Scott really is not an ideal vehicle for any typical findings with regard to the work that she did and wanted to do. Clearly Ms Scott was a person that has been studying for the qualification of EN. She wants to do that. Her evidence highlighted things she was doing that in some ways weren't required to be done and were beyond what we - being Blue Care - would want of a personal care worker, so she's not an ideal vehicle for the processes that the commission seems to be being asked to undertake.

PN6573

Our position, we say on page 60, is that when one turns to which agreement is applicable, then primarily the force, we would say the 2013 agreement is the applicable agreement and is the one, as made by the employees, that should be operating in respect of this cohort of employees. As the legal position is at present, the 2008 agreement applies.

PN6574

We deal with the purposes of the engagement debate. In a way, that has been dealt with as one moves through working out which is the appropriate classification. Our position is that when one gets to considering the purpose of the engagement, it is that they be PCs. Ms Scott and Ms Orreal were intended to be PCs or PSAs employed by Blue Care for the purpose of providing a range of care functions to the residents of Blue Care, consistent with, for example, what is set out in the Aged Care Award. When one goes through the various factors that are sometimes used by commission members, that ends up at where we would say is the same place.

PN6575

With regard to other considerations, not surprisingly we would take the position that the position of the employer is of some significance. It is what the employer wants and requires for its business that is really the starting point in classification disputes. It's not a case where the classification disputes or the requirements of a union such as the QNU should dictate to Blue Care what can or should be done by any group of employees. We've dealt with the interests of the employer in 13.5 and onwards.

PN6576

Blue Care, as we would have it, operates a business of providing care for the aged, wants to do that in the best way possibly can; but it also wants to do that consistently with its statutory and other obligations to its residents and consumers. It wants to do that consistent with the government's policies and policy directions. It wants to do that, implementing the best possible outcome for its residents. And it wants to do that, not surprisingly, in a way that is cost-effective, and a flexible workforce in residential care is a step in achieving that goal.

PN6577

As to the interests of the employees, both Ms Scott and Ms Orreal have and did accept particular contracts of employment which were clearly setting out what the terms and conditions were. They performed duties in accordance with those contracts. They are paid in accordance with the industrial instruments. Indeed, they are now being paid the extra amounts that flow from the 2013 agreement in respect of their time as a PC.

PN6578

Just dealing briefly with the quick read of the union's submissions that I have had, I just make this further points. As we say, the case that's advanced by the QNU is to set out provisions on construction of industrial instruments, then really just not deal with it; launch straight into a principal purpose test; and then look at that principal purpose in various pages in isolation of other things and other contextual matters that have to be considered by this commission in dealing with this dispute. It is not to be - you can't just look at the principal purpose approach in the absence of working out what is the agreement, what does it mean, who is intended to cover; and that is precisely what is done.

PN6579

Further, there are references to various evidence of witnesses called, and the duties of cleaning tasks, food preparation, food service and so forth are dismissed as incidental and peripheral tasks. Firstly, this idea of incidental and peripheral, we rather contest, and that will ultimately be a matter the commission will have to make some sort of - come to some position on. Our position is that those duties are not certainly peripheral or incidental to nursing tasks; they are important tasks of their own. They are important tasks the employer wants performed; and they are important tasks that form part of the cohort of duties that we require of personal care attendants or personal service assistants.

PN6580

The approach of the QNU is, for example, to take the position that virtually everything, really, is simply AIN work. I mean, it's said in paragraph 60, "Assistance with the activities of daily living is part of, and a sub-set of nursing care." Well, that's what people in aged care facilities do, they assist people with the activities of daily living. People that are personal carers do that. The aged care award recognises there can be personal care workers. If one says that assistance with the activities of daily living is necessarily part of a sub-set of nursing care, then there cannot practically be such a position. It cannot be the position simplicita that one simply says, "Assistance with the activities of daily living is nursing care." That sort of theme permeates the submissions.

PN6581

The plain position is that the outcome the union seeks is to effectively diminish where there would be any PC workers or personal carers in Blue Care, and that would have ramifications for the sector as well. There is also the argument run in paragraph 69 onwards that "work in collaboration with the care team". Well, all employees that are working in care work in collaboration with the care team. The fact that Ms Scott and Ms Orreal were supervised by an RN does not make them, necessarily, nurses; does not make them performing nursing care work.

PN6582

There are some references in paragraphs 80 and 81 to certain of the evidence where witnesses were asked very long questions in which the word "nursing" appeared, they gave long answers, but it's somehow then said that they accepted it was - that these people were working providing quality nursing care. I can only invite the commission to look fully at the evidence of these people and our summary with regard to these matters, because our position is that when that evidence is fairly read, there was not an acceptance of such a proposition at all in respect of this category of employees. Now, if the commission pleases, those are our submissions.

PN6583

THE DEPUTY PRESIDENT: Thank you.

PN6584

MR PARRY: If the commission pleases.

PN6585

THE DEPUTY PRESIDENT: Mr Healy, did you have anything in reply?

PN6586

MR HERBERT: Might I be heard?

PN6587

THE DEPUTY PRESIDENT: I’m sorry, Mr Herbert. Of course.

PN6588

MR HERBERT: It's the haircut, your Honour. Nobody recognises - - -

PN6589

THE DEPUTY PRESIDENT: Yes, I didn't recognise you for a minute, Mr Herbert.

PN6590

MR HERBERT: I will be brief, in recognition of the fact of the very comprehensive submissions that have been put on by the contending parties in these proceedings and the detail in all of that. The submission of the AWU is that the submissions on behalf of Blue Care and the outcome contended for by Blue Care in these proceedings is correct, and that orders should not be made of the kind - or directions or orders or relief of the kind sought by the QNU should not be granted. I will only deal with some particular topics very briefly in respect of which the AWU would wish to draw certain matters to the attention of the commission. The commission might recall - and this proceeding and the enterprise bargaining approval proceedings have been conducted in tandem with each other.

PN6591

I draw your Honour's attention, without repeating them, to the submissions made in the earlier proceeding by myself in relation to the question of the historical development of the two different categories of work respectively known as assistant in nursing and personal carer, and how it was that the QNU appears to contend - I'm sorry - a logical extension of the QNU's contentions in relation to this matter and that is that somewhere and somehow and in some way at some time, presumably in the distant past, the classification of personal carer effectively disappeared. The difficulty with the QNU's submission in respect of this matter, apart from all the matters raised by my learned friend for Blue Care, is actually manifested in exhibit 1 in the proceedings.

PN6592

Exhibit 1 is the statement of Ms Orreal. In Ms Orreal's statement - witness statement essentially says, in the first exhibit in these proceedings - that she has been working since 2005 under a dual appointment, both as a PC and an AIN, and that in paragraph 7 of exhibit 1 she refers to the fact that - which was adverted to by me in my submission on the last occasion, on the EBA matter, that - and as has been referred to by Mr Parry in these proceedings - that the low care areas in respect of which her PC engagement appeared to have been initially made, many of the residents in them have high care needs, and in the dementia area, in which she's also engaged as a PC, all of the residents need a high level of care.

PN6593

That has been the case, on the evidence from Ms Orreal, since about 2005. That is, that - and there has been no suggestion between 2005 and 2013 that her working as a PC in an area where there were, in fact, as it turns out, predominantly high-care, if not entirely high-care residents - that there was any difficulty with her working as a PC and being classified as a PC when undertaking that work.

PN6594

It has been, as I submitted on the last occasion and repeat for these proceedings, an accepted legal and industrial fact that the classification of personal carer in Blue Care under the Blue Care industrial instruments covering the personal care classifications - the AWU and the LHMU, now United Voice, agreements in that regard - covered persons performing, in effect, high-care work in a context in which there were high-care residents. And it has done so since - on the QNU's evidence, that has been the case since, in the case of Ms Orreal, relevantly for these proceedings, 2005.

PN6595

There has been, it appears, a change of mind on the part of the QNU as to whether that is an accepted or acceptable fact. On my learned friend Mr Healy's submissions in these proceedings, that change of mind was generated by the fact that they were told by Blue Care that henceforth Blue Care would be engaging care workers as personal carers, and that has generated this dispute, on my friend's summary of the matters. As a consequence of that, the matter has been brought on in this way.

PN6596

But the proceedings have now developed in such a way that having called evidence to say that: well, this work that's being performed by Ms Orreal when she deals with, in exhibit 1 and the rest of her evidence, which she performed as a PC unchallenged for at least eight years is, on the test now articulated by my learned friend Mr Healy in these proceedings, is AIN work and is covered by the nursing agreement. And if it is, it always has been. There was no point at which that circumstance changed. How can this be?

PN6597

It must be, as I submitted on the last occasion, the case of the disappearing classification. The classification disappeared - of personal carer - disappeared, but people kept being engaged as such; industrial instruments kept being made in relation to such a classification; people were working as such; and the distinction between the two classifications remained, in light of all of the known facts, one which was observed by all the relevant industrial parties up until 2013 when Blue Care announced that they were going to adopt that classification as their standard method of engagement for workers in their new style of personal care.

PN6598

So that's all - the only thing that changed in 2013 to generate this dispute was that Blue Care appears to have announced that they're going to use that classification as the vehicle for employment going forward. There was no other industrial tectonic movement of the plates such that there had been a quantum shift overnight in the way in which work was done or performed or organised at all. That change occurred a decade ago, at least, if not earlier, with the introduction of ageing in place and the changing of the funding models and all of those things that have been discussed in these proceedings, which are well-known.

PN6599

My learned friend, Mr Healy's submissions on behalf of QNU adopt the very simple and very blunt instrument of saying, "All that one needs to do in order to determine whether Ms Orreal's engagement is that of an AIN or a PC is to adopt what is described as the principal purpose test," which he articulates as being the test - he submits is the test to be applied, and which is then fundamentally mis-applied in the course of his submissions. The principal purpose test, of course, is an aid to tribunals and courts assessing which of two competing industrial instruments, for example, apply to the established facts of a particular employment.

PN6600

But being an aid, it is a useful servant but a very oppressive master. It ought not and cannot be taken as an aid to interpretation of these matters to overbear the clear contextual facts. The relevant consideration in relation to these proceedings is the question of: what is the content of the word "purpose" in the principal purpose test? Is the principal purpose of the employment to perform the role of a personal carer as it has evolved more than a decade ago into what it is now and has been for, according to Ms Orreal in her case, since at least 2005? Is the purpose of the engagement to perform that role; or is the purpose of the engagement to perform the role of an AIN, as described in the nursing agreement?

PN6601

That is not as simple as my learned friend, Mr Healy, would have it, of going through empty boxes and saying, "Does this person perform individual work functions which and AIN could - might be found to perform?" And ticking the boxes and saying, "Well, that's that." Because as my learned friend, Mr Parry put it, that would be to airbrush the personal carer classification and all the contextual factors surrounding that out of the picture completely as if it did not exist. The contextual factors are that one can't - the commission cannot find or be satisfied, given the historical debates, as to the respective roles and functions of personal carers as against assistants in nursing.

PN6602

Between these contending parties and between the unions represented in these proceedings over decades, the commission could not be satisfied that the QNU was not fully aware of the evolution of the role of a personal carer into areas of providing personal care services in areas of work where there was a significant amount of high care residents within those areas. So that the mere going through and ticking boxes and saying, "Well, we now identify the work that we have accepted, by the way we have arranged our industrial affairs, is the work of a personal carer. By ticking the boxes here today in these proceedings we can transfer that material, translate that work from the personal carer, where yesterday we accepted it was, into the role of an AIN."

PN6603

The contextual issues which make that simply inconceivable are those referred to in the submissions on behalf of Blue Care to the effect that the industrial parties entered into industrial instruments throughout this period from 2005 onwards which very clearly recognised that there is a distinction between the two classifications; they both exist and they both have a place in the work area, and they are separate and distinct classifications.

PN6604

The clearest possible indication of that in the context of these proceedings, and one which is an objective background fact which the commission simply cannot ignore in determining these matters, is the fact that this was not undertaken by the process of an arbitral tribunal handing down an award which has, in effect, a common rule effect; and the award having been handed down, the parties go out and work out to whom does this apply in these workplaces, because the distinction and demarcation between those classifications was achieved by the mechanism of enterprise agreements.

PN6605

The legislative requirements of those agreements are such as is set out in the Blue Care submissions in great detail, that it is necessary for the parties seeking to make such agreements - being in the nursing agreement case, the QNU, the AWU and Blue Care - it's necessary for those parties to identify in advance the persons to whom the agreement might apply - the actual persons to whom the agreement might apply - because unless and until you identify those persons and those employees, you cannot give a notice of employee representational rights; you cannot enter into negotiations with such persons; and those persons are - their right to vote in relation to the agreement and then the binding effect of the agreement thereafter is dependent upon them having been identified in advance as being persons who are entitled to the benefit of all the mechanisms in the Act to make an agreement.

PN6606

You have the clearest possible picture that one could imagine what it was that the industrial parties, being the QNU, the AWU and Blue Care, thought was the area of work to be covered by the nursing agreement because they went out and identified those people and gave notices of employee representational rights to them, and those persons were balloted. And as pointed out in the Blue Care submissions, that did not include persons engaged as personal carers by Blue Care. They were excluded, and deliberately excluded because the agreement was not propose to cover them.

PN6607

That is not a matter of subjective intention, that is an objective legal background fact, that the parties - if one takes the objective test of: what must the parties have been taken by an interested bystander to have intended by the agreement they made? Well, having regard to the significant legal constraints around making an agreement that applies to persons who are currently engaged but who are not told about the agreement and don't get an opportunity to negotiate or vote in relation to that agreement, the objective background fact to be taken is that the parties did not intend to that agreement to extend to the personal care classification as it then existed, as it was known to exist, and which had characteristics which were known.

PN6608

Now, the characteristics are described in my learned friend, Mr Healy's submissions, and the difference between the characteristics are described as subtle. They're not subtle at all for the reasons set out in my earlier submissions and the submissions of Mr Parry in these proceedings, and that is because they contain core elements described as indicative tasks in the relevant instruments, which again, as Mr Parry has just pointed out, did not exist as indicative tasks in the nursing instruments. There's a very clear line of distinction between the two. One does not resolve that difficulty in this case by throwing a bridge over by saying, "Well, what are in fact indicative tasks in one instrument and do not exist in the other?"

PN6609

You can bridge the gap between the two by calling the non-existent indicative tasks in the nursing agreement; for example, you can characterise the doing of those things as incidental and peripheral, and therefore bridge the gap between the two classifications. The historical picture is that that difference is and always has been accepted by the QNU as the - and has been the fact acknowledged by all of the industrial parties by their actions in making separate agreements that include one group but don't include the other. The existence of those indicative tasks within the classification description is, of itself, sufficient in the historical context of these matters to distinguish between the personal care classification and the AIN classification.

PN6610

The extraordinary situation which is posited by the QNU, and it's - they have to say it to press the way in which the principal purpose test is put forward as being the measure in this matter. But the extraordinary consequence of that is that essentially all personal carers, if they're right about that you simply tick the box and say "what do these people do when they come to work during the day", all personal carers who do the work that personal carers have been doing for the last decade in most places, and Ms Orreal has been doing since 2005 in the capacity of personal carer, and those like her, all of them were AINs at the time the nursing agreement was made, if they were employed at that time in 2011, and again in 2013, but none of them were given a vote if they were engaged in the capacity described as a personal carer.

PN6611

The legal consequence of that is that the QNU knowingly entered into arrangements in which they knowingly had a group of workers working for the same employer, working in a high-care environment, providing personal care services in that environment, in a manner which they now say constitutes them AINs. But then in 2011 to 2013, when these agreements were being made, they did not think so, apparently. Were they to have - or that could have been the thought process at the time, then it was absolutely necessary that they be given a vote in relation to the agreement which they now say covers them, and yet they weren't.

PN6612

That, of course, has significant legal consequences for the agreement. But to say that, "We make an agreement covering persons engaged as AINs, the agreement does not cover persons engaged as personal carers. We know they're there, we know what they do, but they're not included in what we are now doing." And then to come along in the dispute proceeding and say, "We want to, in effect, knock over our agreement. We got it past the guards to cover a couple of hundred people, we now want to cover a couple of thousand people with the same agreement," even though many of them are employed there and they were never given a vote in relation to that agreement, and it would be extension of the agreement by stealth long after it has been made in 2011 and then remade in 2013.

PN6613

A submission that - by a party, in effect, challenging the legality of their own agreement in order to extend the coverage of that agreement by stealth would be an extraordinary and counterintuitive outcome in relation to dispute proceedings of this kind. But that is the clear consequence of the argument which is put forward, and in my submission that's simply not tenable. They made the bed that they did in 2011 and 2013; it did not cover the classification then and now known as a personal carer; it was designedly put together in that form and the coverage was designedly left in that way; and it ought to be confined to the terms of what the industrial parties, including my client, designed to be at that time.

PN6614

Of course, as we submitted, the one thing that that agreement was not intended to do was to cover the classification then existing as a PC. It is not open to the QNU after the event, as one of the union parties to the agreement, to come along and say that that agreement actually has a coverage vastly wider than that which it was objectively - or would objectively be taken to have had by reason of the actions of the parties in its making.

PN6615

And so on that basis, in my submission it was very clear that the parties must be taken objectively to have had in mind an area of work which was not included within the scope of that agreement, and it is the area of work undertaken by persons appointed as and working as personal carers, whose indicative tasks and scope of their employment covers specifically a range of activities which are not merely incidental and peripheral, that you can be required to do without them having to be listed in the agreement; but ones which are listed in the agreement as matters that are tasks which are indicative of a characteristic of that classification, and matters in respect of which, of course, you can be directed to do as your core duties for as long or as short as the employer requires; and to work flexibly in and out of those sorts of arrangements as and when the employer requires.

PN6616

As an indicator of the nature of the classification, that is a powerful point of differentiation in this industry. It has been recognised as such now for very many years and it ought not to be set aside by the application which has been made in these proceedings in which, in effect, Commissioner, and we make no bones about this, the determination which is being sought will sweep away the personal care classification with the stroke of a Commissioner's pen as if it did not exist, by the mechanism of saying the principle purpose of this person working is in doing what they've always done and what has always been called a personal carer in their employment, in their employment arrangements and by their employer, and understood by them and the industrial parties to be a personal carer.

PN6617

That employment is now to be swept away and they were not, never have been, and are not personal carers; they are, and in effect always have been assistants in nursing. The consequences of that in my submission would be utterly without any thought behind it in relation to any of the other industrial parties and would cause very significant organisational difficulties, quite apart from seriously damaging the existing relationships between the relevant organisations which have the relevant coverage in relation to the employees.

PN6618

In my submission the answer to the question is that, as we submitted earlier, posed by Blue Care. This application for a determination that the relevant employees and those who do the same or similar work are to be declared, in effect, to be those of an assistant in nursing should be dismissed, and the commission should, to the extent that that can be done in the context of proceedings of this kind, reinforce the very clear line of distinction which has been recognised by the parties in making the agreement that is relied upon by the QNU in these proceedings, that if it chose to make an agreement that was confined in the way that it plainly is, then it cannot vary the scope of the agreement on the ground by many hundreds or thousands of employees by the process which is being undertaken in these proceedings.

PN6619

That would require a very clear change to the scope of an agreement, which would then require firstly the concurrence of the employer and the relevant processes of the Act to be gone through before such an outcome could be contemplated. But that the current characteristics of a personal carer, as I've submitted, are sufficiently different from those of an assistant in nursing that they have been in the past plainly able to be recognised by the parties, and they should continue to be so unless a relevant instrument is made which would change that position, and this is not an appropriate vehicle for that outcome. Unless there's anything further, I simply adopt the submissions of Blue Care in relation to the matter.

PN6620

THE DEPUTY PRESIDENT: Thanks, Mr Herbert.

PN6621

MR HERBERT: Thank you.

PN6622

THE DEPUTY PRESIDENT: Mr Peverill, did you have anything you wanted to add?

PN6623

MR PEVERILL: Deputy President, I think United Voice can only support the position of Blue Care in its closing submissions, and that of the AWU.

PN6624

THE DEPUTY PRESIDENT: Thank you. Mr Healy, anything in reply?

PN6625

MR HEALY: Some brief matters, if your Honour pleases. I had a brief opportunity to consider some parts of the written submission tendered by Blue Care prior to my learned friend, Mr Parry's submissions. On page 64 of Blue Care's outline at paragraph 11.23 there are references to the 2013 enterprise agreement, which in the QNU's submission are unhelpful and irrelevant. There is no such agreement. That agreement, made or not, has not been approved by the commission. The task of the commission in this case is to decide whether the work of Ms Scott, Ms Orreal and others, who perform the same or substantially the same work, is the work of an AIN; it's not to determine whether Blue Care could have or should have two enterprise agreements covering what the QNU says is - or purports to be essentially the same work.

PN6626

At page 66 of Blue Care's submission there seems to be an attempt now to shy away from its earlier submission set out in its amended outline of submissions of 19 May 2014, that the principal purpose test is not necessarily the relevant test in this case, or that it should be read down, watered down, or not have the pre-eminence that they seem to submit that it had before the evidence was commenced to be heard in the case. They now seem to submit that it's a consideration. It's the applicable test, your Honour, and it's well settled that it is the test to be applied. Blue Care and the parties who support them, doubtless seek to shy away from that legal and industrial reality because the plain and simple application of that test doesn't necessarily result in an outcome which assists them.

PN6627

In paragraph 12.3 of Blue Care's written outline, your Honour, there is a reference to the decision in HSU v Liviende. There is a passage from that case which is bolded. In the QNU's submission there is a passage there which provides some greater guidance to the commission in this case, and that is the statement in the third-last line of paragraph 12.3, that, "The descriptor in the agreement" - that is in any agreement - "is evidence of the essence or object of the work." That is a matter which the QNU has drawn the commission's attention to in its written outline and a matter which in my submission assists the commission in the resolution of this dispute.

PN6628

A similar issue over the page on page 67, your Honour, in paragraph 13.3. There is some selective highlighting of a passage from the Monash case. In my submission the more important part of that decision follows immediately after the underlined section where the learned Commissioner observed that:

PN6629

It cannot, of course, avoid its obligations under an agreement simply by renaming a function without changing the nature of the work which previously attracted a particular level of remuneration under the agreement.

PN6630

Your Honour has before you extensive submissions from the QNU about just how and why the work of an assistant in nursing has not changed, particularly at the relevant Blue Care sites which are the subject of these proceedings.

PN6631

Just a few matters in reply to the submissions of my learned friend Mr Parry for Blue Care. It was put that one just doesn’t launch immediately into the principal purpose test; that matters of construction and context are important. Well, that may be so, your Honour, but the approach of the QNU, both to the proceedings and its submissions, has not been and is not as it has been described. The approach take is taken because the terms of the schedule 3 classification statement to the Nursing Agreement 2013 are clear, and they are clear on their plain and ordinary meaning. It was put to you, your Honour, that the commission is obliged to look at the nursing agreement in context and look at the parties intended.

PN6632

The other relevant industrial instrument at the time was the Blue Care AWU LHMU 2008 Agreement which, as I've submitted, contained the personal carer classification which had no content. When the commission comes to consider matters of context and it comes to consider the circumstances surrounding the making of the Nursing Agreement 2013, it must be that 2008 agreement and that classification which the commission ought bear in mind, bearing in mind that the now very elaborate classification statement for a - or classification structure for personal carers in the Care and Support Agreement 2014 was not around, not available, apparently not drafted until sometime around the middle of 2014 at the very earliest.

PN6633

If Blue Care wants to insist that context and surrounding circumstances be considered before the test be applied, let that be so, and let there be no mistake that that was the context; the context was not the Care and Support Agreement 2013 or 2014, as it has been referred to. Will your Honour just bear with me briefly while I go to passages that my learned friend took the commission to in making his submissions.

PN6634

Another part of the relevant context, your Honour, in respect of both relevant agreements and the other agreement on which Blue Care relies is that - relate to matters that the commission is all too familiar with from the proceedings in AG2014/4103; that it took approximately four months for the Nursing Agreement 2013 to be negotiated and voted on. It took two years and four months for the Proposed Care and Support Agreement 2013 to be negotiated. There is little evidence and no explanation that hiatus. Again, that's a critical part of the context and the surrounding circumstances in respect of the Nursing Agreement 2013.

PN6635

Similarly, your Honour, a strident submission was made that the commission looks at the position as it is now. The QNU rejects that submission, especially to this extent, that the relevant industrial instruments, as I've been submitting, are the Nursing Agreement 2013 and the 2008 agreement. There's a reference to the wage rates currently being paid to PCs, and the submission seemed to be made in the context of giving some greater force or significance to the proposed Care and Support Agreement 2013, but those rates are paid administratively, they're not paid pursuant to an approved enterprise agreement.

PN6636

Your Honour, there was a submission that all care staff are supervised by registered nurses, and that that therefore is an irrelevant matter or a minor matter in respect of assessing the principal purpose test against the schedule 3 classification statement in the nursing agreement. The fact that other employees are supervised by registered nurses does not alter the reality of the fact that in considering whether the work of Ms Scott and Ms Orreal and others is covered by the nursing agreement, regard must be had to the evidence in the case, which is extensive, in respect of the supervision of RNs on every shift on a three-shift basis, 365 days of the year.

PN6637

There was a submission that simply focusing on matters of supervision doesn't assist; that if one does so, that every employee would be an AIN. Well, they wouldn't be. It's very easy to conceive of all of the classifications of employees who are not supervised by RNs who the commission has heard about in these proceedings who would not be AINs; the likes of cleaners, gardeners, hospitality workers and so on.

PN6638

The next submission that was made, your Honour, was in respect of the indicative tasks and skills as they're set out under subparagraph (a) in the classification statement for AIN level 1, that is, "Assist in the provision of quality nursing care," et cetera. The submission from Blue Care was that it is narrow and it is specific and relates exclusively to nursing care. That submission is rejected; it's rejected for all of the reasons in the written outline. But even if that were so, your Honour, the definitions of nursing care are as they're set out in the existing authorities, such as the Churches of Christ case and the ANF eligibility rules case, assist the commission.

PN6639

The activities of daily living are a subset of nursing work and form part of it. Mr Davy, a registered nurse with 25 years' experience, in charge of the Azure Blue facility at Redcliffe, accepted that candidly, and not after a long-winded question, your Honour. Ms Suller accepted that premise conditionally. She agreed that if it were true that ADLs are, in truth, a subset of nursing work, then assisting in that work is certainly assistance with the provision of nursing care. So again, any attempt to water down or reduce the significance of the work performed by AINs pursuant to that indicative task and skill is not a contention which the commission should accept.

PN6640

The QNU was criticised for making no reference to domestic work, pastoral care and the like. That was a mis-characterisation of the QNU's submission and it was not what's said in the written outline; it's not the QNU's case. The QNU's case very clearly is that those duties, even if they are extensive, even if they involve assistance with breakfast and cleaning for even up to an hour at a time, do not alter the qualitative nature of the work, the purpose of the work; and indeed to use the terminology of the relevant test, the principal purpose of the work.

PN6641

Can I just go briefly to page 19 of Blue Care's written submission, your Honour, because there was a reference to paragraph 5.31, which talks about the context being relevant to the question of who the parties - that is, Blue Care, employees, QNU and ANU - understood the nursing agreement to cover. It's contended that it would be a curious outcome to now contemplate the nursing agreement covering persons performing the same or similar duties as in March 2013 working in the classification of a PC, being a fact known to all parties. Your Honour, that's not the right question or the right point at all. The right question is the question for arbitration; that is: were those employees performing that work AINs performing the work that is described in the schedule 3 classification statement to the nursing agreement?

PN6642

The submission seemed to be - indeed, I believe it was - that the QNU, through its negotiating parties, through its officials, ought to have been aware of persons who Blue Care chose classify as PCs in all of the various 60-odd residential aged care facilities operated by Blue Care. Your Honour, commonsense dictates that the reality was Ms Semple gave evidence that the QNU officials negotiating the agreement did not know and could not know, for example, that Ms Scott at that time - that is, in February 2013 and March 2013 - was a former AIN who had been classified - the QNU contends, wrongly - as a PC at Azure Blue at Redcliffe.

PN6643

So in fact the industrial reality was that employees classified by Blue Care as PCs were performing the work of AINs. That was not a matter known to or contemplated by the QNU when the QNU was advised, well after the event, by Blue Care of their intention to alter their bargaining position and their negotiating position and extinguish the classification of AIN for good. The QNU indicated - sorry - advised them that the QNU was in dispute with Blue Care, and here we are today, two years down the track.

PN6644

My learned friend, Mr Herbert, took up that theme about what an objective bystander must have believed about what the negotiating parties had agreed at that time. For the reasons I've just outlined, your Honour, it's quite clear that the QNU believed and understood that it was negotiating a nursing agreement to replace the nursing agreement 2011 for those employees who it understood to be performing the work as an AIN, as it's described in the classification structure. Bear with me one moment, please, your Honour.

PN6645

Your Honour, a submission was made on behalf of Blue Care in respect of paragraph 7.6 of its written outline, which is at page 25, and the reference being made to the award modernisation process as part of the context in which the agreement must be viewed; and to the extract from the decision of the full bench which said, "We have decided to retain the classification in the nurses award 2010 and make it directly relevant to the work of nurses. In addition, we've adopted" - et cetera. Well, the work is relevant to the work of nurses, your Honour.

PN6646

Your Honour has listened to nine days of evidence about the clinical nurses, registered nurses, enrolled nurses supervising the work of AINs and other employees who Blue Care has chosen to classify as PCs who the QNU contends are performing either essentially the same work or precisely the same work; ie, the work of an AIN. And in this respect, your Honour, the QNU don't hesitate to rely upon - indeed, in the written outline do rely upon the definitions of nursing work as they appear in the Churches of Christ Case, the Australian Nursing Federation eligibility rules cases, and your Honour's own decision at first instance with respect to good faith bargaining orders in January last year, and the full bench appeal decision in favour of the QNU in that matter as well.

PN6647

The work is nursing work, and assisting with it is assisting in the performance of nursing work. There was criticism of the QNU because we were dismissive of the Tailor Made model of care. Just for the record, the QNU's submission doesn’t seek to denigrate Tailor Made. Indeed, the evidence was that person-centred care, or holistic care was, rather, part of nursing philosophy practice; had been, subject to which witness was called, part of it for a decade or several decades. The true submission was that Tailor Made was about the way Blue Care expected its employees, of whatever classification, role, capacity, or whatever service they worked in, to perform their work.

PN6648

Tailor Made didn't usher in any different duties or alter the nature of the work, and it certainly didn't result in what my learned friend, Mr Herbert likes to term this growing classification of a PC. It didn't result in any additional duties being allocated to PCs as opposed to AINs. It did not alter the industrial reality at the employer's residential aged care facilities.

PN6649

Your Honour, one of the submissions was that AINs voted and PCs didn't, in respect of the Nursing Agreement 2013, and the QNU got what they bargained for and what they asked for, and that a win in these proceedings would be a remarkable outcome not contemplated by any of the parties. Your Honour, the proper submission and the true position is this, that it wasn't contemplated by - what wasn't contemplated by the QNU was that employees who are, in truth, AINs, would be classified as PCs. And I won't repeat the submissions that have been made about the timing of it, advices to the QNU about Blue Care's proposals in respect of the extinction of the AIN classification.

PN6650

There was a relatively faint submission, your Honour, that Ms Scott was not an ideal subject for findings in this case because she has done some study as an enrolled nurse and was doing some extra duties. That submission is rejected. Mr Davy, under cross-examination, accepted that the work performed by Ms Scott was similarly representative of the work that was performed on day shift for those residents who required the same health care and attention, or who had the same needs. She was typical of other workers. She, like other employees at Sutton, at Azure Blue, Redcliffe worked to the same duties lists which are in evidence and performed the same work. And she did some additional duties which didn't alter the fundamental nature of the work that she performed.

PN6651

Your Honour, it was put to you on behalf of Blue Care that the position of the employer is of some significance. What was put specifically was that what the employer wants is the starting point. The union's requirements are the starting point. The truth is and the reality is the correct position is that it's neither, your Honour. The starting point is the industrial instruments which are in place, the Nursing Agreement 2013 and the 2008 agreement. They are the starting points. And if one, to the extent that one needs to and to the extent that it's significant, you go to the context, the surrounding circumstances, and so on.

PN6652

The authorities all conclude that enterprise agreements are either or analogous to statutory instruments: they confer rights and obligations; they apply; and all industrial parties must comply with them. The QNU was criticised, your Honour, because it was said that we had set out submissions in respect of the construction of industrial instruments, ignored them, and charged on with the application of the principal purpose test. Your Honour, that's not so. The submission is, and it has been dealt with in that way because the terms of the nursing agreement are clear on their face, on their plain and ordinary meaning.

PN6653

The context is, of course, relevant, but it assumes a true or greater significance in cases of ambiguity or cases where there are serious disputes about competing classifications. And in the circumstances of this case the commission is considering the elaborate and prescriptive, detailed classification statement for an AIN in the Nursing Agreement 2013 on the one hand, and the two-line definition of a personal carer in the 2008 carer's agreement. The broad submission of the QNU is that in this case the context does not alter the construction of the Nursing Agreement 2013. That is the submission.

PN6654

In the final analysis there were two rather melodramatic submissions; one from Blue Care, one from the AWU; that the QNU's position would exclude PCs. Well, your Honour, that submission can safely be ignored in view of the terms of previous industrial instruments and the 2008 agreement. That isn't and cannot be the case.

PN6655

One final matter, your Honour. One of the last submissions made by my learned friend, Mr Herbert, was that related to, again, the contention about what an objective bystander would have regarded the QNU as having agreed to or consented to at the time of the making of the Nursing Agreement 2013, the words used by my learned friend were that the QNU knew that persons appointed as and working as PCs would be excluded from the coverage of the Nursing Agreement 2013. That is not so, your Honour. Nothing could be further from the truth. Now, genuinely working as PCs in the sort of context that they historically had, perhaps yes; appointed as, certainly not.

PN6656

When Blue Care advised the QNU on 15 February 2013 of its intention to - for all future purposes, at all future times at all residential aged care facilities - appoint PCs in lieu of assistants in nursing, the QNU immediately advised Blue Care that there would be a massive dispute about that position, that it was not a position that the QNU accepted; and this dispute was filed approximately one month later.

PN6657

And similarly, your Honour, the submission from the AWU that the determination sought by the QNU will sweep away the PC classification is one that should be ignored. It's melodramatic, it's baseless, it's one that needs to wait for the decision of the commission and for a future time. It might even be the subject of some further submissions. But the irony shouldn't be lost on the commission or everybody else that that submission from the AWU and Blue Care comes in the context of a dispute that arises out of a positive decision and a definite decision by an employer to absolutely extinguish the AIN classification within its workplace.

PN6658

So ironically, both the AWU and Blue Care now wish to complain about the potential for that to occur when, in fact, that is precisely the nature of the decision which has given rise to and led to this dispute and these proceedings. Unless I can assist any further, they are the submissions for the QNU, your Honour.

PN6659

THE DEPUTY PRESIDENT: Thanks, Mr Healy. I will reserve my decision. I will issue it in due course. I will adjourn.

<ADJOURNED INDEFINITELY [12.57PM]