Federal Court of Australia

Health Services Union v Catering Industries (NSW) Pty Ltd [2023] FCAFC 82

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    Part 2-4 of the Fair Work Act 2009 (Cth) (the “FW Act”) is entitled “enterprise agreements”. Amongst other things (and at the risk of over-simplifying), its provisions regulate the making and approval of enterprise-level bargains that govern the relationships between employers and their employees. When in operation, such agreements — styled “enterprise agreements”, as the part’s title suggests — apply to the exclusion of any otherwise-applicable modern awards made pursuant to the provisions of Pt 2-3 of the FW Act: FW Act, s 57(1).

2    In order that they might assume that legal effect, enterprise agreements must, once made, be approved by the Fair Work Commission (the “FWC”). Such approval requires satisfaction of various criteria, one of which is that the FWC be satisfied that an agreement that has been made passes what is known as the “better off overall test” (“BOOT”): FW Act, s 186(2)(d).

3    In order that it might be satisfied that an enterprise agreement passes the BOOT, the FWC must consider that the employees to whose employment it is proposed to apply will each benefit from it more than they otherwise would benefit if their employment were governed by a modern award that “covers” it: FW Act, s 193.

4    The parties to the present appeal are currently engaged in bargaining under Pt 2-4 of the FW Act. Specifically, they are bargaining in respect of an enterprise agreement that they propose should apply to catering employees who are engaged by the respondent (“Catering Industries”) at Heritage Botany, a 112-bed residential aged care facility located in Sydney.

5    That bargaining process began in June 2021 but has stalled for want of agreement between the parties as to which modern award applies (or would apply) for the purposes of the BOOT. Catering Industries maintains that the employees to whose employment the agreement is proposed to apply (hereafter, the “Catering Employees”) are covered by the Hospitality Industry (General) Award 2020 (the “Hospitality Award”). The appellant (the “HSU”) maintains that they are covered by the Aged Care Award 2010 (the “Aged Care Award”).

6    By an originating application filed on 15 December 2021, the HSU moved the Court for declaratory relief directed to the resolution of that question. That application was dismissed: Health Services Union v Catering Industries (NSW) Pty Ltd [2022] FCA 754 (Rares J). By notice of appeal dated 28 June 2022, the HSU charges his Honour with having erred in two respects, and appeals from the whole of that judgment.

7    For the reasons that follow, the primary judgment is not attended by the errors that are alleged and the appeal should be dismissed accordingly. There should be no order as to costs.

Factual background

8    Heritage Botany is a residential aged care facility that is operated by Heritage Care Pty Ltd (“Heritage”). It provides care and accommodation services to residents of the facility. Naturally enough, those services include the provision of meals, which are prepared and provided consistently with various statutory and regulatory requirements.

9    The HSU is an employee organisation registered as such pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth). Its membership includes at least some of the Catering Employees.

10    Catering Industries operates a contract catering, cleaning and laundry services business that dates back to 1977. It provides services of that nature to a number of aged care providers in NSW, as well as to other facilities, including boarding schools, public sector departments, remote mining sites and other commercial entities.

11    Prior to 2019, the catering functions discharged at Heritage Botany were carried out by Heritage employees (and, before them, by the employees of the business from which Heritage acquired the facility). The terms of their employment were regulated by an enterprise agreement that applied not just to them but also to other staff of the facility (the “Predecessor Agreement”).

12    In 2019, Heritage and Catering Industries entered into an arrangement whereby the latter agreed to provide catering, cleaning and laundry services at the Heritage Botany facility. Under that arrangement, Heritage provides the facilities and equipment that are necessary to enable the Catering Employees to store, prepare, transport and serve food, beverages and other products.

13    Many of the Catering Employees were once employees of Heritage (and, before it, its predecessor). Their employment was transferred from Heritage to Catering Industries upon the commencement of the outsourcing arrangement just described. Some are aptly described as “long-term employees” at the Heritage Botany facility.

14    The work undertaken by the Catering Employees is broadly (if somewhat loosely) described as “food and beverage services”. The Catering Employees prepare food and beverages for residents as approved by Heritage. Meals and beverages are prepared in compliance with residents’ personal care plans (where applicable), and otherwise consistently with their dietary and care requirements.

15    The Aged Care Quality and Safety Commission has oversight of the services provided at the Heritage Botany facility. It operates under the provisions of the Aged Care Quality and Safety Commission Act 2018 (Cth) and the Aged Care Quality and Safety Commission Rules 2018 (Cth). In 2019, it published what have come to be known as the Aged Care Quality Standards. The Catering Employees are trained and expected to deliver the services for which Catering Industries has been engaged consistently with those standards.

16    On 30 June 2020, the Predecessor Agreement nominally expired. Having been neither terminated nor succeeded, it continues to apply to the Catering Employees: FW Act, ss 52, 54 and 58; and Pt 2-8.

17    In June 2021, the HSU and Catering Industries commenced bargaining for an enterprise agreement that would cover and apply to the Catering Employees. As has been noted, the parties are in dispute as to which of two modern awards covers the food services work in respect of which the bargaining has proceeded. The ramifications of that dispute have not clearly been articulated; but nor are they material. It is apparent that its resolution will facilitate the resumption — and, hopefully, the completion — of the bargaining that commenced in mid-2021.

Legislative framework

18    The BOOT is established by s 193 of the FW Act. Relevantly, it provides:

193 Passing the better off overall test

(1)    An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

…

(4)    An award covered employee for an enterprise agreement is an employee who:

(a)    is covered by the agreement; and

(b)    at the test time, is covered by a modern award (the relevant modern award) that:

(i)    is in operation; and

(ii)    covers the employee in relation to the work that he or she is to perform under the agreement; and

(iii)    covers his or her employer.

…

(6)    The test time is the time the application for approval of the agreement by the FWC was made under subsection 182(4) or section 185.

…

19    Insofar as concerns modern awards, the FW Act distinguishes between coverage, operation and application. That distinction is apparent from the terms of s 193; but it is more fulsomely established by Pt 2-1 of the FW Act (in particular Subdiv C of Div 2 thereof). Sections 47, 48 and 49 of the FW Act are concerned (respectively) with the application, coverage and operation of modern awards. It is prudent to map out the relevant provisions:

47 When a modern award applies to an employer, employee, organisation or outworker entity

(1)    A modern award applies to an employee, employer, organisation or outworker entity if:

(a)    the modern award covers the employee, employer, organisation or outworker entity; and

(b)    the modern award is in operation; and

(c)    no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity.

…

48 When a modern award covers an employer, employee, organisation or outworker entity

(1)    A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.

…

49 When a modern award is in operation

(1)    A modern award comes into operation:

(a)    on 1 July in the next financial year after it is made; or

(b)    if it is made on 1 July in a financial year—on that day.

(2)    However, if the FWC specifies another day as the day on which the modern award comes into operation, it comes into operation on that other day. The FWC must not specify another day unless it is satisfied that it is appropriate to do so.

…

(7)    A modern award continues in operation until it is revoked.

20    Section 57 of the FW Act is a provision of the kind to which s 47(1)(c) refers. It precludes the application of a modern award to the employment of an employee in respect of whom an enterprise agreement applies.

21    The Hospitality Award and the Aged Care Award are both modern awards made pursuant to Pt 2-3 of the FW Act. Both are and, at material times, were in operation for the purposes of s 49. Neither applies to the employment of the Catering Employees. That is so because the Predecessor Agreement continues to apply to their employment (and because of the operation of s 57 of the FW Act). Instead, the comparison that s 193 contemplates turns upon hypotheticals, chief amongst which being, for present purposes, what affected employees would be paid if a modern award did apply.

22    In order that a modern award might (even hypothetically) apply to the employment of a given employee, it must first cover them in the sense for which s 48 of the FW Act provides. The hypothetical application of either of the two awards presently in focus, then, turns upon whether they cover the employees in respect of whom bargaining is ongoing. That, in turn, depends upon the terms of each instrument.

23    Clause 4 of the Aged Care Award is entitled “Coverage”. Clauses 4.1 and 4.7 assume particular significance:

4.1    This industry award covers employers throughout Australia in the aged care industry and their employees in the classifications listed in clause 14-Minimum weekly wages, to the exclusion of any other modern award.

…

4.7    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.

…

24    “[A]ged care industry” is defined by cl 3.1 of the Aged Care Award as:

…the provision of accommodation and care services for aged care persons in a hostel, nursing home, aged care independent living units, aged care services apartments, garden settlement, retirement village or any other residential accommodation facility[.]

25    There is no dispute that Heritage Botany is a facility of a kind that falls within that definition.

26    Clause 4 of the Hospitality Industry Award is also entitled “Coverage”. Relevantly, it provides as follows:

4.     Coverage

4.1    This industry award covers, to the exclusion of any other modern award:

(a)    employers in the hospitality industry throughout Australia; and

(b)    employees (with a classification defined in Schedule A—Classification Structure and Definitions) of employers mentioned in clause 4.1(a).

4.2     For the purposes of clause 4.1, hospitality industry includes:

…

(n)     caterers…

…

4.4     However, this industry award does not cover any of the following:

…

(d)     employers in the following industries or their employees:

…

(xi)     catering services provided by employers in the aged care industry (except where these services are provided for or within an aged care facility by employers otherwise covered by this award); and

…

4.5     If an employer is covered by more than one award, an employee of that employer is covered by the award containing the classification that is most appropriate to the work performed by the employee and the industry in which they work.

27    The coverage provisions of both modern awards reflect the requirements of s 143 of the FW Act:

143 Coverage terms of modern awards other than modern enterprise awards and State reference public sector modern awards

(1)    A modern award must include terms (coverage terms) setting out the employers, employees, organisations and outworker entities that are covered by the award, in accordance with this section.

(2)    A modern award must be expressed to cover:

(a)    specified employers; and

(b)    specified employees of employers covered by the modern award.

…

(5)    For the purposes of subsections (2) to (4):

(a)    employers may be specified by name or by inclusion in a specified class or specified classes; and

(b)    employees must be specified by inclusion in a specified class or specified classes; and

(c)    organisations must be specified by name; and

(d)    outworker entities may be specified by name or by inclusion in a specified class or specified classes.

(6)    Without limiting the way in which a class may be described for the purposes of subsection (5), the class may be described by reference to a particular industry or part of an industry, or particular kinds of work.

…

The application and the primary judgment

28    By its originating application of 15 December 2021, the HSU sought declaratory relief consistent with its position: namely, that the Aged Care Award covers Catering Industries and the Catering Employees, and is the modern award against which any enterprise agreement made in respect of them would be judged for the purposes of the BOOT. Central to the HSU’s claim was its contention that Catering Industries is an employer in the aged care industry.

29    That proposition was not accepted below. It is convenient now to trace the learned primary judge’s reasons for dismissing the application. After setting out the relevant background facts, his Honour identified three questions that arose for the court’s consideration, namely:

(1)    whether, as Catering Industries argued, it is covered because cl 4.4(d)(xi) of the Hospitality Award expressly provides that it is and, on its proper construction, read together with the Aged Care Award, leaves no room for the operation of the Aged Care Award to cover the employees at the facility (the coverage issue);

(2)    whether, as Catering Industries argued, the definition of the aged care industry in the Aged Care Award requires a person in that industry to provide both accommodation and care services so as to be able to fulfil both functions with the result that, since Catering Industries was providing solely catering services to the facility, it could not be an employer “in the aged care industry” for the purposes of the Aged Care Award, thus leaving it covered only by the Hospitality Award (the definition issue); and

(3)    whether, if both awards are capable of covering Catering Industries’ employees at the facility, the more appropriate classification of them under the reconciliation clauses was, as Catering Industries argued, that provided in the Hospitality Award (the reconciliation issue).

(Original emphasis.)

30    His Honour then identified the competing contentions, before moving to address each of the three identified issues. As to the first (the “coverage issue”), his Honour determined that the coverage of the Hospitality Award extended to caterers that provide catering services for or within an aged care facility. So much was (and, on appeal, remains) conceded. His Honour concluded (primary judgment, [36]) that:

…the bracketed exception in the expression in cl 4.4(d)(xi) of the Hospitality Award, namely, except where those “services are provided for within an aged-care facility by [employers] otherwise covered by this award” (emphasis added), means that that award covered, and the Aged Care Award did not cover, the provision of services of that description by an employer with a catering business in the position of Catering Industries.

31    That conclusion sufficed to address (and to warrant the dismissal of) the HSU’s originating application. Nonetheless, his Honour proceeded to address the other two questions earlier identified. On the “definitional issue”, his Honour rejected Catering Industries’ submission that, in order that it might qualify as an employer “in the aged care industry”, it was necessary that it should provide both accommodation and care services, concluding (at [39]) that:

…[t]he Aged Care Award could not be so inflexible as not to incorporate the cognate provision of both kinds of services by subsidiaries in, or members of, a corporate group, which employ staff to perform different functions within the meaning of “aged care industry”.

32    On the “reconciliation issue”, the learned primary judge concluded as follows (at [43]):

Where the work involved is that of a recognised skilled trade, namely that of providing kitchen and cooking services, the classifications in the Hospitality Award are specific and clearly identify numerous gradations or levels of skill involved in providing services within a catering environment. Those gradations are much more appropriate than the vague and general descriptions in schedule B to the Aged Care Award, which do not identify anything in the skills involved in providing catering services except a high level title of a person involved in the provision of those services. The Aged Care Award classifications do not provide any identification of skills beyond what one can derive from the description in the title as to the employee’s skills in the kitchen as opposed to general skill levels appropriate for administrative tasks and the degrees of supervision that the employee at that level requires.

The appeal

33    The present appeal proceeds upon two grounds, namely:

1.     The primary judge erred in finding that the respondent, and its employees undertaking work in the provision of food services at the Heritage Care aged care facility at Botany, are covered by the Hospitality Industry (General) Award 2020 and not covered by the Aged Care Award 2010 by operation of clause 4.4(d)(xi) of the Hospitality Award.

2.     The primary judge erred in failing to find that, in circumstances in which the respondent is covered by both the Hospitality Industry (General) Award 2020 and the Aged Care Award 2010, its employees undertaking work in the provision of food services at the Heritage Care aged care facility at Botany are covered by classifications in the Aged Care Award because those classifications are most appropriate to the work performed by the employees and to the environment in which the employees normally perform the work for the purposes of clause 4. 7 of the Aged Care Award and clause 4.5 of the Hospitality Award.

34    As it did before the primary judge, the HSU accepts that the Hospitality Award covers Catering Industries and the Catering Employees. Nonetheless, it maintains that they are also covered by the Aged Care Award (which is the contention to which ground one above is directed) and that it is that award, rather than the Hospitality Award, that contains the classifications most appropriate to their work and the industry within which it is performed (which is the contention that is the subject of ground two).

35    By leave granted without opposition at the hearing of the appeal, Catering Industries relies upon a notice of contention, by which it submits that the primary judgment should be upheld on the footing that it “…was not engaged in the provision of accommodation and care services”. Obviously enough, acceptance of that proposition would necessarily equate with a finding that Catering Industries is and was not an “employer…in the aged care industry”; and, therefore, that, as the primary judge found (albeit on a different basis), neither it nor the Catering Employees are covered by the Aged Care Award.

The court’s jurisdiction to grant relief

36    The FW Act confers upon this Court jurisdiction in relation to any matter arising thereunder: FW Act, s 562. Such a matter will exist when the appropriateness of relief sought turns upon the existence of rights, duties or liabilities that the FW Act establishes: Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2016) 270 FCR 513 at 523 [56] (Bromberg and Rangiah JJ, O’Callaghan J dissenting in the result).

37    The relief that the HSU sought in the present matter was declaratory relief pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth). In Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, Gaudron J (at 613 [52]) said:

…a declaration cannot be made if it “will produce no foreseeable consequences for the parties.” That is not simply a matter of discretion. Rather, a declaration that produces no foreseeable consequences is so divorced from the administration of the law as not to involve a matter for the purposes of Ch III of the Constitution. And as it is not a matter for those purposes, it cannot engage the judicial power of the Commonwealth.

See also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 (Mason CJ, Dawson, Toohey and Gaudron JJ) (“Ainsworth”).

38    It is sufficient that the “foreseeable consequences” that declaratory relief might visit have “real practical importance” to the party that seeks it: Edwards v Santos Ltd (2011) 242 CLR 241 at 436 [37]-[38] (Heydon J, with whom French CJ, Gummow, Crennan, Kiefel and Bell JJ, and Hayne J relevantly agreed).

39    Here, such consequences abound and it is to be accepted — indeed, it is not controversial — that the relief for which the HSU moved pertained to (and, if granted, would have resolved in its favour) a justiciable controversy that has arisen between the parties. The identity of the modern award against which a proposed enterprise agreement, once made, might be compared under s 193 of the FW Act is a matter that has an obvious bearing upon bargaining that precedes its making. Resolution of the question that has arisen will afford the parties a measure of certainty that the terms for which they are bargaining are terms of which the FWC might ultimately approve. It may also assist them in assessing the relative bargaining value of what is offered or conceded.

Substantive questions arising on the appeal

40    There are two central questions that fall for consideration on the appeal, namely:

(1)    does the Aged Care Award cover Catering Industries in relation to the Catering Employees; and

(2)    if so, does the Aged Care Award contain classifications that are more appropriate to the Catering Employees’ work and the environment in which they perform it (that is to say, more appropriate than those contained within the Hospitality Award)?

The HSU would have the Court answer both questions in the affirmative. Catering Industries urges that both be answered in the negative.

41    It is to be noted that those two questions do not perfectly align with the grounds expressed in the notice of appeal and the notice of contention. As has been rehearsed, the HSU’s first ground of appeal charges the primary judge with having erred by concluding that the Aged Care Award does not cover the Catering Employees “…by operation of clause 4.4(d)(xi) of the Hospitality Award”. There is no separate and explicit allegation of error relating to the primary judge’s failure to find that the Aged Care Award does cover the Catering Employees under s 48 of the FW Act. Instead, that charge is implicit in the HSU’s second ground of appeal, which assumes as established that which the primary judge failed to find.

42    The pleading gives rise to some scope for confusion. That is not a criticism of either party; but to contextualise the process of reasoning that follows. In our view, the matters in issue on the appeal are clear — and were made clearer still by the parties’ helpful submissions. The HSU contends that the primary judge erred by concluding that the Aged Care Award does not cover the Catering Employees under s 48 of the FW Act, that his Honour ought to have found that the Aged Care Award does so cover them, and that his Honour ought then to have found that the classifications most appropriate to the Catering Employees are those contained within the Aged Care Award, rather than the Hospitality Award. The two questions identified above address those issues.

Preliminary issue about the Hospitality Award

43    The first ground of appeal might be read — or misread — to suggest that the primary judge erred by concluding that the Hospitality Award covers Catering Industries and the Catering Employees. That is not the case that the HSU advances on appeal.

44    There is no doubt — and the HSU does not dispute — that the Hospitality Award covers the employment of the Catering Employees. Catering Industries is a caterer and, thus, operates within what cl 4.1(a) and 4.2(n) of the Hospitality Award contemplate as “the hospitality industry”. The exclusion for which cl 4.4(d)(xi) of the Hospitality Award provides does not (and was not suggested to) operate to exclude from its coverage caterers who provide catering services in the aged care industry. Instead, it recognises that employers in the aged care industry might have occasion to provide catering services (as Heritage did prior to its engagement of Catering Industries); and that, to the extent that they might do so, they do so externally to the operation (or coverage) of the Hospitality Award. Similar exceptions apply in respect of other industries that have hospitality (including catering) functions inherent within them, such as hospitals, orphanages and theme parks: Hospitality Award, cl 4.2(d).

45    The central question raised by the appeal in relation to the Hospitality Award is whether, by its terms or implicitly, it operates so as to exclude the Aged Care Award from covering the Catering Employees. That was the conclusion reached by the primary judge and the correctness of it is put squarely in issue by the first ground of appeal.

46    With due respect to his Honour, the HSU’s submission on that question should be accepted. Whether the Aged Care Award covers the Catering Employees is not a question that falls to be determined by reference to the terms of any instrument other than the Aged Care Award. That is what s 48 of the FW Act says. The contrary argument — which the primary judge accepted and with which Catering Industries persisted on appeal — is that coverage should be determined by reading modern awards together. How that reconciles with s 48 of the FW Act was not explained. It is difficult to see how it might and we do not accept that it does. As the HSU contended: “…clause [4.4(d)(xi) of the Hospitality Award] is not concerned with the coverage of any other modern award, much less could it be construed as altering the coverage of the Aged Care Award sub silentio.”

47    Inherent in that conclusion is a proposition that is recognised by both of the modern awards that are of present significance (and, indeed, the vast majority if not all of them): namely, that employers might be covered by more than one award. It is in recognition of that reality that modern awards (including the two that are presently in focus) contain “most appropriate” clauses such as cll 4.7 and 4.5 of (respectively) the Aged Care Award and the Hospitality Award.

48    Clauses of that nature have long been a feature of modern awards. They were first conceived of in the context of an “award modernisation request” made in 2008 under s 576C of the Workplace Relations Act 1996 (Cth). The process set in train by that request was aimed partly at “…reducing the number of awards in the workplace relations system [and] minimising the number of awards applying to a particular employee or employer”. Nonetheless, the Australian Industrial Relations Commission (as the FWC then was) acknowledged that there would remain “overlapping coverage”: Re Request from the Minister for Employment and Workplace Relations (2008) 177 IR 364 at 376-378 [26]-[30] (Giudice J, Lawler and Watson VPP, Watson, Harrison and Acton SDPP, and Smith C).

49    There is no occasion presently to read cl 4.4(d)(xi) of the Hospitality Award as excluding the possibility that Catering Industries is covered by both that award and the Aged Care Award. In each case, coverage is to be assessed solely by reference to the award’s terms. Insofar as ground one of the notice of appeal charges the primary judge with having erred by concluding that cl 4.4(d)(xi) of the Hospitality Award here operates to preclude coverage by the Aged Care Award, it should be upheld.

50    A similar observation might be made about the reference that each of the relevant modern awards makes to its coverage being “…to the exclusion of any other modern award”. It is difficult to know what to make of those words. If they were to have the effect that they purport to have, the “most appropriate” clauses (cl 4.7 of the Aged Care Award and cl 4.5 of the Hospitality Award) would be redundant. More significantly, it is unclear how those words might be given effect without improperly fettering the application of s 48(1) of the FW Act. Conveniently, the significance of the phrase was not the subject of detailed submission and it is unnecessary to say any more about it.

51    It may be accepted, then, that cl 4.4(d)(xi) of the Hospitality Award does not apply so as to inform the potential coverage of the Aged Care Award. As will shortly be seen, though, it does not follow that the Court should accept that the Aged Care Award covers Catering Industries in respect of the Catering Employees.

Coverage of the Aged Care Award

52    As has already been noted, the Aged Care Award is expressed to cover “…employers throughout Australia in the aged care industry and their employees in the classifications listed [later]”. “[A]ged care industry” is defined to mean “…the provision of accommodation and care services for aged persons…”

53    The HSU contends that Catering Industries is an employer in the aged care industry because the services that it is contracted to provide are provided in connection with the provision of accommodation and care services to residents of the Heritage Botany facility. It maintains that those services are central to or linked inextricably with resident care.

54    Catering Industries maintains that it is not an employer in the aged care industry because it is not concerned with the provision of accommodation and care services. Instead, it submits, it is concerned (relevantly for present purposes) only with the provision of contract catering services, which qualify as neither accommodation nor care.

55    In order that the Aged Care Award might cover the Catering Employees, Catering Industries must first be understood to qualify as an employer in the aged care industry. More accurately, it must qualify as an employer that falls within what the proper construction of cl 4.1 of the Aged Care Award contemplates.

56    In BioGiene Pty Ltd v Mullan [2022] FCAFC 73 (“BioGiene”), Charlesworth and Snaden JJ had occasion to consider how the court might construe the phrase “employers…in the meat industry”. Their Honours observed (at [26]; O’Callaghan J agreeing at [62]):

The precise limits of the phrase “employers…in the meat industry” in cl 4.1 of the MIA turns upon an orthodox process of construction. The principles that the court should apply in that endeavour are well known and were not in contest. When construing the terms of a modern award, the court looks to divine and give effect to the meaning that their authors intended them to convey: Kucks v CSR Ltd (1996) 66 IR 182, 184 (Madgwick J). The terms in which an award is framed are to be understood under the light of their context and purpose: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, 246 [2] (Gleeson CJ and McHugh J). They must not be construed in a vacuum, divorced from industrial realities: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426, 440 [57] (French J).

57    Those observations apply with equal force presently and there was no obvious controversy between the parties as to the principles that the Court must apply in construing cl 4.1 of the Aged Care Award. The court’s task is to discern the meaning of the words that cl 4.1 of the Aged Care Award employs, bearing in mind the context in which they appear and the purpose (or purposes) that they are intended to serve: Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449 at 455 [22] (Siopis, Buchanan and Flick JJ).

58    To return to the question for immediate consideration: is Catering Industries an employer of the kind to which cl 4.1 of the Aged Care Award, properly construed, refers; that is to say, an employer in the aged care industry?

59    In Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [2008] NSWCA 348 (Allsop P, Giles and Bell JJA) (“Central West”), the New South Wales Court of Appeal was called upon to determine whether a business that provided workers and apprentices to other businesses was an “employer[ ] in the coal industry” insofar as concerned one such apprentice who was seconded to work at a coal mine. Resolution of that question would serve to resolve a more immediate controversy concerning an insurance payment. Allsop P (with whom Giles and Bell JJA agreed) explained the court’s task as follows (at [37]):

…[T]he task is to give context to the phrase “employers in the coal industry”. It is not the employee that is to work in the industry, but the employer must be “in” the industry. The employer is a person or entity. It must employ a worker or workers to be an employer, but it, as a person or entity, must be “in” the coal industry. This can be seen to involve at least two enquiries: first the nature and limits of the term “coal industry”; and, secondly, the relationship between the employer and the coal industry such that it can be said that the former is “in” the latter.

60    After considering a series of industrial demarcation cases (to some of which we shall turn shortly), his Honour concluded (at [50]-[52]):

…[T]he phrase “employer in the coal industry” requires a substantive connection between the entity and the coal industry to satisfy the relationship required by the preposition “in”, beyond merely being the employer of a person who works in and about a mine.

…[The first respondent] submitted that what was required was the satisfaction, from an assessment of the substantial character of the employer and its business, that it was “in” the coal industry. I agree with that approach. It accords with the notion of the employer, as an entity, being in the industry…

Ultimately, the question is to be resolved textually and whether or not an entity is an employer in the coal industry will be a question of fact undertaken by reference to an assessment of the company’s character and business...

61    The reference in cl 4.1 of the Aged Care Award to “employers…in the aged care industry” is properly to be construed in an equivalent way. It is a phrase that is apt to describe employers that operate businesses or undertakings the substantial character of which suffices to situate them “in” the aged care industry. Resolution of the central issue with which this appeal engages thus turns upon analyses of the essential elements that constitute the “aged care industry” (on the one hand) and of the nature of Catering Industries’ undertaking (on the other).

62    There are limits to the assistance that this Court might gain from authorities that have considered similar, but not identical, questions in similar, but not identical, contexts. None of the authorities referred to in the analysis that follows considered the proper construction of the phrase “employers…in the aged care industry” in cl 4.1 of the Aged Care Award and none concerned a business identical to that which Catering Industries operates. Nonetheless, such authority as there is in other contexts is instructive and worthy of consideration: Central West at [38] (Allsop P, with whom Giles and Bell JJA agreed). It aids an understanding of when businesses might be thought to possess qualities that accumulate to a point sufficient to position them “in” (or not in) particular industries.

63    Before the advent of enterprise-level bargaining in the early 1990s (and mostly before the prices and incomes accord that preceded it), a great volume of industrial law jurisprudence — including much that found its way to the High Court — turned upon the existence of industrial disputes that extended beyond the limits of any one state. The existence of such a dispute was often the key that unlocked access to mechanisms — usually award-making processes — that were enshrined within federal legislation enacted pursuant to the conciliation and arbitration power for which s 51(xxxv) of the Commonwealth Constitution provides. Whether such a dispute existed in any given case often turned upon whether or not a union that alleged as much was competent to represent the industrial interests of the employees to whose employment the dispute was said to pertain. Invariably, that turned upon whether or not the employees or their employers were engaged in the industries or callings in respect of which the union’s rules regulated eligibility for membership. It is in that context that the principles that emerge from that jurisprudence afford at least some guidance to the Court in the present case.

64    More than a century ago, in R v Hibble; Ex parte Broken Hill Pty Co Ltd (1921) 29 CLR 290, a question of the kind described above raised itself for the consideration of the High Court. There, the Australian Coal and Shale Employees’ Federation (an ancestor of what is now the Construction, Forestry, Maritime, Mining and Energy Union) claimed to be party to an interstate industrial dispute pertaining to the employment of workmen who were engaged at an iron and steel manufacturing business. The workers in question were engaged in the conversion of coal into coke for smelting purposes. At issue was whether those workmen were engaged “in or in connection with the coal and shale industry”. It was held unanimously that they were not. Higgins J (with whom the other members of the court agreed in the result) observed (at 302):

…when one speaks of "the coal and shale industry," as a single industry, the meaning is surely the industry of extracting coal and shale. Coke is not made from shale, but shale is frequently lying over beds of coal. If there is any “coal and shale industry,” it must be in the process of extraction from the earth. It is not enough to show that coke is "connected with" coal, or jam with sugar; the employees must be engaged in the industry, or in connection with it (e.g., as surface-men or engineers in connection with coal mining, or as carpenters with jam factories).

65    In R v Drake-Brockman; Ex parte National Oil Pty Ltd (1943) 68 CLR 51, the High Court was concerned to determine whether the manufacturing (or extraction) of oil from shale was work that fell within the “coal-mining industry” (or, more specifically, whether a dispute as to the wages and conditions of those who performed work of that nature was a dispute that was “in the coal-mining industry”). Again (although this time by majority), the court concluded that it was not. Of relevance for present purposes were the following observations of Latham CJ (with whom Rich and Williams JJ agreed in the result) at 57:

A single employer may carry on two or more industries. The same man may be a farmer and a miller and a baker, but there is a distinction between the industry which produces wheat, the industry which produces flour, and the industry which produces bread. The applicant company in this case conducts two industries. One is an industry the product of which is shale, and the other is an industry the products of which are oil and petroleum coke.

The fact that two industries are carried on at the same place does not abolish the distinction between them. If a single company mined coal and then used the coal to manufacture gas in works alongside the mine, it would nevertheless still be the case that two industries were carried on by that company, one the mining of coal and the other the manufacture of gas. The manufacture of gas would not become “coal mining” because one company was engaged in both enterprises. Nor would the industry of gas manufacturing for that reason become a part of the industry of coal mining.

Accordingly, in my opinion, the employees engaged in what is described as the manufacturing section of the company's works are not engaged in the shale-mining industry and an industrial dispute with respect to their wages or conditions of labour is not an industrial dispute in that industry or a matter affecting industrial relations in that industry.

66    Two years later, in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, the High Court again considered the conceptual limits of “the coal mining industry”. There, a regulatory authority had determined that a haulage contracting business was an employer in the coal mining industry because the overwhelming majority of its employees were engaged (most of them exclusively) to transport coal from a mine southwest of Sydney. The court concluded that neither the business nor its employees operated in the coal mining industry. Latham CJ (with whom the other members of the court agreed) observed (at 608-609):

The term “industry” is not a precise technical term. One industry sometimes overlaps into another industry. In my opinion, no absolute rule can be laid down for determining the limits of a particular industry. The question whether a particular industrial operation belongs to one industry rather than another cannot be decided merely by considering the nature of that operation itself…[A]ll the circumstances of each case must be taken into account…In the present case…the lorry drivers who carry coal are employed as lorry drivers generally, and not as carriers of coal, and they are not employed by the colliery proprietors. They are employed by persons who carry on the business of carriers, and who do not in any real sense belong to the coal mining industry. The fact that some lorry drivers belong to unions to which coal mining employees belong is a circumstance of little weight. Competition for members between unions is not unknown. The fact upon which the respondents rely is that the lorry drivers carry coal and carry it from a colliery. But lorry drivers employed by the prosecutors carry firewood, timber, blue metal and other materials. In my opinion, it would not be in accordance with the ordinary meaning of the term " industry " to say that the firm was therefore also engaged in the firewood industry, the timber industry, or the industry of producing blue metal, even if the carting were done from a forest, mill or a quarry. In my opinion, the whole of the evidence shows that the employers and employees concerned are not engaged in the coal mining industry…

67    In R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123 (“Theiss (Repairs) Pty Ltd”), the High Court considered whether an employer that ran a machinery workshop was one that operated (yet again) “in the coal mining industry”. The business was situated proximate to a coal mine that a related company operated. The vast bulk (though not the entirety) of its work concerned the maintenance of machinery that was in use at the mine. The respondent authority was authorised to resolve industrial disputes “in the coal mining industry” and took the view that a dispute involving the employer fell within that description. The High Court disagreed. Again, Latham CJ (with whom a majority of the other members of the court agreed) took the view that the employer was an engineering (rather than coal mining) business. His Honour held (at 135):

Many industries supply goods to or provide services for other industries. A motor garage may be almost exclusively engaged in repairing trucks for a transport company, and it may do such work under a contract under which it is entitled to obtain and bound to do all the transport company’s work. But it would not follow that the motor garage was in the transport industry. Similarly, an engineering workshop which does all the repairs for a coal mine and a gold mine and a shipping company would not, according to the ordinary use of language, be said to be engaged in the coal-mining industry, the gold-mining industry and the shipping industry. There would be as much reason for saying that it was engaged in any one of them as for saying that it was engaged in any other of them. There are obvious difficulties in saying that it is at one and the same time in each of these industries and in the engineering industry as well. Thus the fact that an enterprise provides a service for a particular industry cannot be held to identify that enterprise with that industry so as to make it a part of the industry.

In my opinion the question to be asked is – What is the substantial character of the industrial enterprise in which the employer and employee are concerned? In the present case the employer is Thiess (Repairs) Pty Ltd. That employer is not engaged in coal-mining, but is an engineering company carrying on general work. It is not under the control of the mine owner, or even of the contacting party (Thiess Bros Pty Ltd), which actually conducts the mining operations. But the more important fact is that its operations are separate from and different in kind from the operations carried on at the open cut. It supplies certain needs of the coal-mining industry in the same way as do many other industrial enterprises. But these facts do not show that all such suppliers of goods or services to that industry are themselves engaged in that industry…

68    That reasoning was applied nearly three decades later — in a case that has obvious parallels to the present appeal — in Re Federated Liquor and Allied Industries Employees’ Union of Australia; Ex parte Australian Workers’ Union (1976) 51 ALJR 266 (the “Poon Bros Case”). There, it was held that the employees of contract caterers that, under contracts entered into with iron ore mining companies, performed catering, cleaning and laundry services at remote mining townships in the Pilbara region of Western Australia were not engaged “in or in connexion with…metalliferous mining”. The townships in question had been established by the mining entities to accommodate workers who were engaged to work in nearby iron ore mines. The work under consideration was said to be “…so intimately related to the working of the mines that it was in fact work done in connexion with metalliferous mining”.

69    Barwick CJ (with whom Gibbs, Stephen, Mason and Jacobs JJ agreed) observed (at 268-269):

The business of the respondent companies was quite distinct and separate from that of the mining companies engaged in metalliferous mining. True it is that the respondent companies served the mining companies and provided them with commodities and services the provision of which was desirable if not indeed necessary for the maintenance of the workforce to carry on the mining operations. But that does not mean that in contracting to provide and in providing these commodities and services the respondent companies entered into the business of the mining companies so as themselves to be carrying on metalliferous mining: nor were their employees employed in connexion with that industry. Their businesses remained distinct. Though serving the mining industry, the respondent companies did not carry on metalliferous mining or a business or industry in connexion with metalliferous mining. Although employees of the mining companies who provided food or services of the kind furnished by the respondent companies might have been held to be working in the industry of metalliferous mining, such work done by an independent contractor has a different nature or quality. It cannot be said to be done as an integral part of the metalliferous mining operation. Sir Owen Dixon in R. v. Central Reference Board; Ex parte Thiess (Repairs) Pty. Ltd. (1948), 77 C.L.R. 123 at p. 141, thought that the separateness of the establishments in point of control, organization, place, interest, personnel and equipment might furnish a relevant discrimen in deciding the question of fact. Sir John Latham in the same case, at p. 135, thought that the substantial character of the industrial enterprise in which the employer and employee were concerned was decisive of the question whether the employee was engaged in an

industry of given description. Here the substantial character of the industrial enterprise in which the respondent companies are engaged is that of catering and of providing cleaning, etc. services. That they should at a particular place perform such work exclusively for mining companies and under contract with them does not require or permit the conclusion that in doing so the respondent companies carry on an activity in or in connexion with metalliferous mining…

70    The Poon Bros Case was distinguished (including by Barwick CJ) in R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470 (the “Uranium Mining Case”). There, the Australian Conciliation and Arbitration Commission (a predecessor to the FWC) had concluded that a dispute between the Australian Workers’ Union (on the one hand) and engineering businesses that had been engaged by mining companies to design and supervise the construction of various parts of new mining sites in the Northern Territory (on the other) was one that it had jurisdiction to resolve by conciliation and arbitration. A rival union sought to overturn that finding on the basis that the employees in question were not eligible for AWU membership. As in the Poon Bros Case, that turned upon whether or not the employees in question were employed “in or in connexion with…metalliferous mining”.

71    The High Court held unanimously that they were. The ratio underpinning that conclusion is not easily discerned. Jacobs J (with whom Stephen J agreed) drew a distinction (at 477) between employees who were engaged “in” metalliferous mining and employees who were engaged “in connexion [there]with”. His Honour concluded (at 477):

Construction work cannot be looked at apart from what is being constructed. The connexion is so close as to be inseparable. The mine owner is engaged in or in connexion with the industry of metalliferous mining when it has its metalliferous mining installations and associated works constructed. The constructor is engaged in work in connexion with metalliferous mining when it constructs the mining installations and associated works.

72    Aickin J (with whom Barwick CJ agreed) drew a similar distinction (at 485):

…[T]he activities of the project engineers in the present case cannot, in my opinion, be said to be ‘quite distinct and separate from that of the mining companies engaged in metalliferous mining’. Here what they are doing is itself part of the business of metalliferous mining, and at the very least it is ‘in connexion with’ that industry.

73    Later, though (at 485), his Honour accepted that “…the substantial character of the industrial enterprise in which the project engineers and their employees will be engaged will be in the metalliferous mining industry, notwithstanding that all, or some, of it may properly be called construction work” (emphasis added). Gibbs J agreed with both Jacobs and Aickin JJ, concluding simply (at 472) that the project engineers’ employees were engaged “in or in connexion with metalliferous mining”.

74    R v Isaac; Ex parte Argyle Diamond Mines Pty Ltd (1985) 159 CLR 323 involved a demarcation dispute between rival trade unions. Each moved the Conciliation and Arbitration Commission for orders affording it the exclusive right to represent workers engaged to construct and operate a treatment plant at a diamond mine in the Kimberley region of Western Australia. As with other demarcation disputes, the matter turned upon the extent to which the employees were eligible for membership of each union. In the case of one, that question depended upon whether they were engaged “in or in connexion with…reducing and refining of ores”.

75    In separate reasons, Gibbs CJ and Wilson J (with each of whom Deane and Dawson JJ agreed, Brennan J dissenting) concluded that the construction and operation of the treatment plant was work that fell within that description. The reasoning of the Chief Justice is most relevant presently. His Honour was concerned expressly to distinguish work that was performed “in” the reduction and refining of ores from work that was performed “in connection” therewith. His Honour accepted (at 335) that “… [t]he workers employed in the construction and operation of the mine were employed “in connexion with…the reducing and refining of ores”” but acknowledged that the position might have been different had the relevant rule referred only to engagement “in” those endeavours.

76    The authorities surveyed above (or combinations of them) have been applied in this and other courts in situations analogous (though not identical) to what arises here. In Kuypers v Ashton Coal Operations Pty Ltd [2014] NSWSC 1276 (Hoeben CJ at CL), for example, the New South Wales Supreme Court concluded that a drilling contractor that serviced various clients, including many in the coal industry, was not an employer in the coal industry. More recently, in Coal Mining Industry (Long Service Leave Funding) Corporation v Hitachi Construction Machinery (Australia) Pty Ltd [2023] FCA 68 at [240]-[250] (Raper J), this Court was drawn to a similar (albeit obiter) conclusion in respect of contract maintenance workers.

77    The question of whether Catering Industries operates as an employer in the aged care industry requires some analysis of the nature of its enterprise. On that score, there was little if anything in the evidence before the primary judge that was controversial. Over the more than 45 years that it has operated, Catering Industries has provided contract catering, cleaning and/or laundry services to many dozens of clients in all manner of callings, including mining, manufacturing, finance, communications, child care and defence. At the time of the hearing before the primary judge, the evidence was that it was engaged to provide “hospitality services (either in the form of a kitchen, dining room, cafeteria, bistro, canteen or café)” at or in respect of educational institutions, function centres, public sector departments, remote mining sites and corporate canteens.

78    Generally, Catering Industries’ employees are engaged to work at a nominated site. Commonly, however, they are moved by agreement to different sites when circumstances warrant it (for example, as a result of an employee moving house). Some client sites — for example, boarding schools — are not operated year-round; and, in those circumstances, Catering Industries has had occasion to find its employees temporary work at other locations. Occasionally, staff are asked temporarily to relocate from one site to another to cover absences (for example, by employees who take authorised leave). In each case, staff might have occasion to move from a client in one industry (for example, education) to a client in another (for example, aged care).

79    Those realities notwithstanding, it is very much clear that the bulk of Catering Industries’ work — at least at the time of the hearing before the primary judge — was or is work performed for clients that operate in the aged care industry. The evidence was that, at the time of the trial, Catering Industries employed 1,638 employees, who collectively worked for approximately 40 clients. The evidence concerning how many of them were employed to work at the facilities of clients operating unambiguously in the aged care industry was inconsistent; but it was very clear that the majority of them — perhaps nearing as many as 1,600 — were in that category.

80    Within Heritage Botany, the work of the Catering Employees is divided amongst a hierarchy comprising a Chef Manager, a cook and catering assistants. Between them, they oversee the storage, preparation and service of food and beverages to residents of the facility. They also attend to ancillary tasks, such as dishwashing, dining room set up and basic kitchen equipment cleaning and maintenance.

81    Predominantly, that work is undertaken within a kitchen area. The Heritage Botany facility is equipped with two such areas; but Catering Industries uses one of them as a scullery. The Catering Employees are charged with acquiring and storing food and beverages for preparation, service and consumption at the facility. Catering Industries retains ownership in those goods and charges Heritage only for what is consumed.

82    Residents typically take their meals in the facility’s dining room or in their own rooms. The dining room is equipped with a bain-marie (or bains-marie), which appear to be reserved for use at lunchtimes. The Catering Employees prepare meals either in the kitchen area on individual plates and trays, or from the bains-marie in the dining room. Meals are then consumed within the dining room or loaded onto trolleys for distribution to residents’ rooms as required. Where necessary, meals are resident-specific; that is to say, are prepared consistently with individual residents’ dietary requirements.

83    Prior to December 2020, meal delivery to residents’ rooms was undertaken by Heritage carers; but that has since been assumed by the Catering Employees, apparently in consequence of staffing difficulties associated with the covid-19 pandemic. There was some evidence about the procedures that apply in respect of residents who require assistance to consume the meals and beverages that the Catering Employees prepare for them. When needed, that assistance is afforded by Heritage-engaged carers.

84    The Catering Employees are required to undergo various training processes. Most are directed to food safety, food quality and hygiene; but some (for example, elder abuse training) are specific to the requirements of aged care residents. None of their training is directed to tasks that might more broadly be associated with the care of residents, such as providing medical care or diagnoses, providing assistance with mobility or dress, or assisting as required with day-to-day activities.

85    Representatives of Catering Industries hold meetings with Heritage Botany residents once per month to obtain feedback about the food services that are provided. Those meetings are typically orchestrated by a Catering Industries Area Manager (whose work extends beyond the provision of food services at the facility) or by the Chef Manager (whose employment is specific to the facility).

86    Meals prepared by the Catering Employees are prepared in accordance with standards developed under the International Dysphagia Diet Standardisation Initiative. Those standards concern the texture and viscosity of what is served to people who may experience difficulty consuming certain types of food and beverages. Unlike at other (non-aged care) facilities, the Catering Employees receive training directed to those standards and the needs of residents who suffer from dysphagia.

87    The HSU maintains that the facts just summarised accumulate to a point at which the provision of food services within the Heritage Botany facility should be understood as essential to and an integral component of the accommodation and care of its residents. As much may be accepted; but it is not sufficient to qualify the enterprise in which Catering Industries is concerned as one that operates in the aged care industry. The question remains: does Catering Industries operate a business that is concerned with the provision of accommodation and care services to aged care residents?

88    As the holding in Central West provides, to be “in” an industry requires that there be a substantive connection between Catering Industries and the aged care industry; and, in particular, something beyond the former merely being an employer who works in and about an aged care facility. It requires an assessment of Catering Industries’ character and business: Central West at [50].

89    In our view, by reason of the nature of its enterprise described above, Catering Industries cannot be said to operate a business that is concerned with the provision of accommodation and care services to aged care residents. It runs a contract catering enterprise. That the services that it provides form part of — even a very important or essential part of — the services of other businesses that are concerned with the provision of accommodation and care is not a circumstance that alters the essential character of its undertaking. It is no more concerned with the accommodation and care of aged residents than Thiess (Repairs) Pty Ltd (at [67]) was concerned with the mining of coal.

90    None of that is to doubt the significance of Catering Industries’ work to the care and accommodation of the residents of Heritage Botany. There is a logical attraction that attaches to the contention of the HSU that residents cannot be accommodated and cared for unless they are fed — and, more specifically, fed in a way that promotes their good health and enjoyment of life. But the same might be said of other services. An essential component of accommodation, for example, is building management; yet it could hardly be said that an arm’s-length contractor engaged to maintain the proper workings or amenity of a residential aged care premises — for example a carpenter or a locksmith or a gardener — should be thought thereby to be concerned with the provision of accommodation and care.

91    Equally, there are many other vocations that are brought to bear upon the successful operation of aged care facilities. Cleaning, laundry, hairdressing, occupational therapy, maintenance, administration, information technology, professional services and many other functions all accumulate to one degree or another — and many to substantial or necessary degrees — to enable the provision of care and accommodation services to aged residents. But to the extent that those functions might be outsourced to external providers who service clients throughout various industries, it is something of a stretch to suggest that the employees who discharge them are employed by aged care employers.

92    The authorities recognise there is a distinction between being in an industry and providing services to an industry. The fact that Catering Industries, at the time of hearing, provided primarily services to the aged care industry, whilst relevant, is not determinative. As Latham CJ, who with Rich and Starke JJ formed the majority, held in Thiess (Repairs) Pty Ltd (at 130-131), “[o]ne industry may be entirely concerned with the service of another industry, and yet may not be part of that other industry”. Even so, in this case, Catering Industries was not, and had never been, concerned exclusively with the service of the aged care industry. It was not disputed that it provided such services to a variety of clientele, including educational institutions, function centres, public sector departments, remote mining sites and corporate canteens and that its employees moved between client sites in these different areas of industry.

93    If the Aged Care Award were expressed to cover employers that operate “in or in connection with” the aged care industry, then the position might be quite different. But the present inquiry involves no such analysis. It starts and ends with consideration of whether Catering Industries is “in” the aged care industry. It is not.

94    With that stated, the following conclusions emerge. Catering Industries is not an “employer[ ]in the aged care industry” for the purposes of cl 4.1 of the Aged Care Award. That award covers neither it nor the Catering Employees. The factual and legal bases that were said to underpin the HSU’s claim to declaratory relief are not established and the decision of the primary judge to refuse that relief on that basis was not a product of error.

The other questions arising in the appeal

95    The conclusions just stated suffice to dispose of the appeal in its entirety and it is not strictly necessary to consider the other questions to which the parties’ submissions were directed. Nonetheless and in deference to the efforts that the parties made in advancing what they advanced, the following observations should be made.

96    The first concerns Catering Industries’ notice of contention. By it, Catering Industries sought to impress upon the Court that a requirement of engagement “in the aged care industry” (for the purposes of cl 4.1 of the Aged Care Award) was that an employer be concerned in the provision of both care and accommodation services. The contention continued: because Catering Industries is very clearly not in the business of accommodating anybody, it cannot be said to be in the business of providing care and accommodation; and, therefore, could not be understood to operate “in the aged care industry”.

97    That contention did not find favour with the primary judge and, in our respectful view, rightly so. The cumulative nature of the definition of “aged care industry” in cl 3.1 of the Aged Care Award serves to distinguish it from other industries that involve the provision of care or accommodation services (such as, for example, the medical services and hotel industries). The qualifying adjectives merely identify the boundaries of the industry to which the award applies; not the activities in which the employers that are covered by it must engage. An employer might operate a business that is concerned with the provision of accommodation and care services without itself being engaged to provide both species of service. That was the conclusion of the primary judge and, with respect, his Honour did not err.

98    We also wish to address, albeit briefly, the submissions that were advanced on what the primary judge referred to as the “reconciliation issue” (above, [29]). It is to be recalled that, by its second ground of appeal, the HSU contends that the primary judge erred by not concluding that the Aged Care Award contained classifications most appropriate to the work that the Catering Employees perform and the environment within which they perform it.

99    Before addressing the correctness of his Honour’s finding, something might be said about the Court’s discretion to grant declaratory relief of the kind to which the HSU’s second appeal ground is directed.

100    Even assuming, momentarily, that the HSU’s contention about which of the two awards is more appropriate is correct, it does not follow that that should result in the grant of the declaratory relief for which it moved. The granting of declaratory relief involves an exercise of judicial discretion: Ainsworth at 581 (Mason CJ, Dawson, Toohey and Gaudron JJ). That discretion, it has been said, should “…be exercised ‘sparingly,’ with ‘great care and jealousy,’ with ‘extreme caution,’ [and] with ‘the utmost caution’” and, at all events, with “…a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making”: Ibeneweka v Egbuna [1964] 1 WLR 219 at 224-225 (Viscount Radcliffe, Guest and Upjohn LLJ); Ainsworth at 596 (Brennan J).

101    Importantly for present purposes, a court might decline to exercise its discretion to grant declaratory relief on the footing that the party requesting it had available to it an alternative remedy by which to achieve that which it was hoped declaratory relief would deliver: Sankey v Whitlam (1978) 142 CLR 1 at 22 (Gibbs ACJ); Telstra Co Ltd v Australian Telecommunications Authority (1995) 133 ALR 417 at 426-427 (Lockhart J).

102    Which of two or more competing awards contains the classifications most appropriate to particular work and the environment within which it is performed requires the application of judgment in relation to the adjective “appropriate” and the phrase “the environment in which the work is performed”: BioGiene at [42] (Charlesworth and Snaden JJ, with whom O’Callaghan J agreed); Re Request from the Minister for Employment and Workplace Relations (2008) 177 IR 364 at 377 [30] (Giudice J, Lawler and Watson VPP, Watson, Harrison and Acton SDPP, and Smith C).

103    Arguably, the body most equipped to form those judgments is the one that saw fit to incorporate into the modern awards the text that requires them: namely, the FWC. Particularly is that so in the context of disputes as to award coverage that, as here, arise in the course of enterprise agreement bargaining. Section 240 of the FW Act confers upon the FWC jurisdiction to “deal with” such disputes, including by arbitration if parties so agree.

104    It was, then, open to the HSU to have (or at least to attempt to have) the question of award coverage determined by the FWC. Such a determination would likely have been binding; but even if it were not, the expression by the FWC of any view as to which award contained classifications most appropriate to the work of the Catering Employees and the environment within which they perform it would very likely carry substantial persuasive force to which this Court might afford proper deference: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 154-155 [47] (Gleeson CJ, Gummow, Kirby and Hayne JJ). The HSU’s failure to avail itself of that process, then, might well have served as a basis to refuse declaratory relief on discretionary grounds.

105    Regardless, we are not persuaded that the conclusion to which the primary judge was drawn — or the analysis upon which he drew it — was attended by error. On the contrary, we consider that his Honour was correct to conclude that the award that contains the classifications most appropriate to the Catering Employees is the Hospitality Award.

106    That question requires a judgment to be formed through the accumulation of detail: BioGiene at [49] (Charlesworth and Snaden JJ, with whom O’Callaghan J agreed). What limited jurisprudence there is on the subject suggests that the question should turn upon “…the primary purpose of the employment in question, the range of tasks for which the employees were trained, and the classification which was the ‘more comprehensive match’ with the work in question”: Bis Industries Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374 at [302] (White J), citing Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449 at 457-458 [31]-[34] (Siopis, Buchanan and Flick JJ).

107    The Hospitality Award contains a suite of classifications that are self-evidently catered toward work of the kinds undertaken by the Catering Employees. It provides for a multi-level classification structure that incorporates both “kitchen” and “food and beverage” groupings. Within each, the Hospitality Award makes provision for various classification levels, including by identifying with some measure of detail the constituent tasks inherent within each. Not all such levels are applicable to the work of the Catering Employees; but there is a clear hierarchy to them that is ripe for application to the work undertaken at the Heritage Botany facility.

108    By contrast, the Aged Care Award makes provision for seven levels of “aged care employee”. Although several are expressed baldly to cover “food services assistant[s]”, “cook[s]” and “food services supervisor[s]”, none of them lists any constituent catering or food services-related tasks.

109    The HSU contends that the classifications for which the Hospitality Award provides extend well beyond what is relevant to work in an aged care facility (for example, to security, leisure services, and casinos). Additionally, it was said that the gradations for which the Hospitality Award provides are ill-suited to the work of the Catering Employees because that work, by its nature, is more general and requires a measure of flexibility that is hard to shoehorn into the detailed and specific Hospitality Award classifications.

110    Respectfully, that is not a compelling basis for preferring the classifications of the Aged Care Award. As the primary judge concluded, the Aged Care Award classifications “…do not identify anything in the skills involved in providing catering services except a high level title of a person involved in the provision of those services.” Where, as here, the choice is between a classification structure that refers only tangentially or in passing to work that is under consideration (on the one hand) and a classification structure that identifies in detail indicative tasks that marry with that work to a not insubstantial degree (on the other), it will often be the case that the more specific classification structure should be preferred as “most appropriate”.

111    The primary judge did not err in preferring (at least as an alternative basis upon which to dismiss the application before him) the classifications contained within the Hospitality Award.

Disposition

112    The appeal should be dismissed.

113    Section 570 of the FW Act precludes the making of any order for costs save in circumstances not apparently relevant and Catering Services did not seek costs in any event. Indeed, it submitted that the appeal should be dismissed with no order as to costs.

Associate:

Dated:    29 May 2023