Federal Court of Australia

Health Services Union v Catering Industries (NSW) Pty Ltd [2022] FCA 754

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    The Health Services Union has applied for declarations that, first, Catering Industries (NSW) Pty Limited is an employer in the aged care industry within the meaning of cl 4.1 of the Aged Care Award 2010 and is covered by that Award for the purposes of s 48(1) of the Fair Work Act 2009 (Cth) to the extent that its employees undertake work in the provision of food services for or within an aged care facility and, secondly, Catering Industries employees undertaking work at the Heritage Care aged care facility at Botany in Sydney in classifications listed in schedule B of the classification provisions in the Aged Care Award are covered by that award for the purposes of s 48(1).

The legislative background

2    The Fair Work Act provides:

46    The significance of a modern award applying to a person

(1)     A modern award does not impose obligations on a person, and a person does not contravene a term of a modern award, unless the award applies to the person.

(2)     A modern award does not give a person an entitlement unless the award applies to the person.

Note:     Subsection (2) does not affect the ability of outworker terms in a modern award to be enforced under Part 4‑1 in relation to outworkers who are not employees.

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.

Note 1:    Section 57 provides that a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.

…

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

When a modern award covers an employee, employer, 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.

…

Modern awards cover employees in relation to particular employment

(5)    A reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment.

3    Under the Aged Care Act 1997 (Cth), the Commonwealth pays a residential care subsidy if the conditions in Div 41 can be met. Relevantly, s 41-3 provides:

41-3    Meaning of residential care

(1)      Residential care is personal care or nursing care, or both personal care and nursing care, that:

(a)      is provided to a person in a residential facility in which the person is also provided with accommodation that includes:

(i)      appropriate staffing to meet the nursing and personal care needs of the person; and

(ii)      meals and cleaning services; and

(iii)      furnishings, furniture and equipment for the provision of that care and accommodation; and

(b)      meets any other requirements specified in the Subsidy Principles.

(2)      However, residential care does not include any of the following:

(a)      care provided to a person in the person’s private home;

(b)      care provided in a hospital or in a psychiatric facility;

(c)      care provided in a facility that primarily provides care to people who are not frail and aged;

(d)      care that is specified in the Subsidy Principles not to be residential care.

4    In addition, that Act provides that aged care quality standards may be prescribed pursuant to s 54-2. The standards that have been prescribed apply to the provision, among others, of the catering services at the facility. The Aged Care Quality and Safety Commission has prescribed eight aged care quality standards in cl 4.4.3, that, among other matters, deal with services and support for daily living. The aged care quality standards are:

(a)     Consumer dignity and choice;

(b)     Ongoing assessment and planning with consumers;

(c)     Personal care and clinical care;

(d)     Services and supports for daily living;

(e)     Organisation’s service environment;

(f)     Feedback and complaints;

(g)     Human resources; and

(h)     Organisational governance.

Background

5    The essential facts are in a narrow compass. Heritage Care Pty Limited owns a 112 bed aged care facility at Botany. It acquired that business from Sir Joseph Banks Residential Care.

6    On 4 September 2017, the Fair Work Commission made the Sir Joseph Banks Residential Care Facility NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2017 in respect of the facility. In making its decision the Commission assessed, for the purposes of ss 186(2)(d) and 193 of the Fair Work Act, whether the employees of Banks Residential Care would be better off overall under the enterprise agreement as compared to the Aged Care Award, and approved the agreement on the basis that they would be.

7    The enterprise agreement used the same wording as that in the Aged Care Award to describe the classifications of employees, in particular, for employees providing food services as described in schedule B. That schedule used descriptions for aged care employees between levels 1 and 7 under the heading “Food Services”, ranging from food services assistant, cook, senior cook (trade), chef, senior chef to chef/food services supervisor. The descriptions of each of those categories also comprised descriptions of employees under the headings “General Administrative Services” and “Personal Care Services”, who were engaged in roles at the same levels with relevantly differentiated titles.

8    The Aged Care Award’s and enterprise agreement’s descriptions of the job functions did not refer to any particular skill in the provision of food services themselves. Rather, the descriptions referred in general terms to responsibilities of an administrative kind and the capacity of the employee to work under various degrees of supervision with his or her own responsibility and initiative.

9    Relevantly, the Aged Care Award:

    defined “aged care industry” in cl 3.1 to mean:

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

    contained coverage provisions in cll 4.1 and 4.7 as follows:

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.

NOTE:     Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.

10    Banks Residential Care sold the facility to Heritage Care. After the sale, the employees working for Banks Residential Care transferred their employment across to the new owner, and, by force of ss 310–314 of the Fair Work Act, the transferring employees were deemed to be covered by the enterprise agreement as if Heritage Care were the employer bound by that agreement.

11    At some point in 2019, Heritage Care decided that it would contract out the catering services to provide meals for residents in the facility and engaged Catering Industries to do so under a contract. The terms of that contract are not in evidence but there was no dispute that they were relevantly similar to the contract which Heritage Care and Catering Industries entered into for the period from 1 February 2021 to 1 September 2021.

12    The transferring employees entered into employment contracts with Catering Industries as their new employer when Heritage Care ceased to employ them in performing the catering functions. The Catering Industries employment contract provided that:

    the employee would be employed in a position with a particular description of his or her role that corresponded to one in the enterprise agreement;

    the employee agreed to abide by all the terms and conditions of the enterprise agreement and site-specific requirements of Catering Industries as the new employer;

    the employee’s entitlement to pay and leave would be regulated by applicable employment legislation, including the enterprise agreement, until that was replaced in accordance with the requirements of the Act; and

    the employee understood that he or she was engaged to perform work for Catering Industries under a specific client contract, and if Catering Industries were to lose that contract, that would mean the employment would also come to an end.

13    When the Union decided to negotiate a replacement enterprise agreement, it approached Catering Industries to enter into discussions on behalf of the employees. It became apparent that Catering Industries took a different view as to what the negotiating background for a new agreement would be. Catering Industries’ position was that the applicable award was the Hospitality Industry General Award 2020. That award relevantly provides in cll 4.1, 4.2, 4.4 and 4.5:

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; and

(o)     restaurants operating in, or in connection with, premises owned or operated by employers otherwise covered by this award; and

…

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

(a)     employees excluded from award coverage by the Act; or

NOTE:    See section 143(7) of the Act.

(b)     employees covered by a modern enterprise award or an enterprise instrument or their employers; or

…

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

(i)     clubs registered or recognised under State or Territory legislation; and

(ii)     boarding schools or residential colleges; and

(iii)     hospitals; and

(iv)     orphanages; and

(v)     councils, county councils, municipal councils, shires, shire councils or local government bodies established under State or Territory legislation; and

(vi)     catering services provided by a restaurant as an incidental business; and

(vii)     theme parks; and

(viii)     in-flight catering for airlines; and

(ix)     restaurants covered by the Fast Food Industry Award 2010, the Registered and Licensed Clubs Award 2010 or the Restaurant Industry Award 2020; and

(x)     contract cleaning undertaken by companies not operating exclusively in the hospitality industry; and

(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

(xii)     contract security, contract gardening or contract maintenance provided by an external provider, whose primary business falls outside the hospitality operation; and

(xiii)     businesses primarily concerned with the sale of petroleum or mixed functions involving the sale of petroleum.

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.

NOTE:    An employee working in the hospitality industry who is not covered by this industry award may be covered by an award with occupational coverage.

(emphasis added)

14    Although cl 4.5 is expressed slightly differently to cl 4.7 in the Aged Care Award, both clauses have the same purpose as a reconciliation clause to ascertain which award applies to the relevant employee that each covers.

15    The Hospitality Award provides classification provisions for employees in cl 17. In the classification structure and definitions schedule to the Hospitality Award, there are general classification definitions for the food and beverage stream (in cl A.2.1), and for the kitchen stream (in cl A.2.2). Kitchen stream classifications go from wage level 1 to wage level 6. They describe gradations of employees from, first, a kitchen attendant, within grades 1, 2 and 3, that specify various levels of skill with tasks specific to food preparation and duties within a kitchen and, secondly, cook, within grades 1 to 5, that specify various levels of skill for persons described as “cook” in respect of his or her ability to do work in kitchens. The latter included descriptions of levels of achievement for professional cooks, such as a commi chef, demi chef and chef de partie or equivalent who had completed or passed appropriate trade courses and could perform various cooking and other related duties specified in the classifications.

16    Catering Industries’ position was that it fell within the words in brackets in cl 4.4(d)(xi) of the Hospitality Award because it was a caterer within the meaning of cl 4.2(n) and so was otherwise covered by the Hospitality Award since it provided the catering services for or within the facility under its contract with Heritage Care.

The nature of Catering Industries’ business

17    There is no dispute that Catering Industries performs catering services, in servicing aged care facilities, and that this comprises a very significant part of its business, employing about 1600 of its 1683-strong workforce. However, there is also no dispute that it also provides catering services for:

    educational institutions, including boarding schools and colleges, and a tuck shop for a school in Dubbo;

    event catering for functions on an ad hoc basis;

    two rehabilitation hospitals conducted by the Salvation Army;

    training colleges of two public service instrumentalities, namely Ambulance New South Wales and New South Wales Rural Fire Services;

    a remote mining site near Mount Isa; and

    two corporate canteen sites.

18    Accordingly, Catering Services’ business falls within the definition in the Hospitality Award of one that is in the “hospitality industry”.

19    During the Covid-19 pandemic, Heritage Care experienced, as did almost all other parts of our society, the impact of that illness among its own workforce and the residents at the facilities. Until about late 2020, the contract between Heritage Care and Catering Industries required that Catering Industries prepare the meals, plate them up and deliver them to staff of Heritage Care who, in turn, would provide them to residents, other than at lunchtime when the chef, ordinarily, attended and plated the meals in the dining room from a bain-marie service system.

20    On 30 November 2020, Heritage Care asked Catering Industries whether its kitchen staff could assist in relieving the aged care workforce employed at the facility from tasks of delivering, and cleaning up after morning tea, afternoon tea and supper, picking up all the dishes scattered around the facility and delivering food to the residents. That was because there were not enough of Heritage Care’s staff available to do so for residents and it would assist with the better distribution of meals to the residents. Heritage Care and Catering Industries agreed that for an additional charge, Catering Industries would provide those services but that the latter needed to add an additional eight-hour shift to perform the extra work required because of the exigencies of the pandemic. That arrangement has continued to date but, subject to how the effects of the pandemic persist, it is not contemplated that it will evolve into a permanent arrangement.

What do the transferring employees do?

21    Part of the skill of persons providing catering for residents in aged care facilities involves being able to prepare varied and interesting meals for them, bearing in mind that they have differing capacities to eat as the ageing process progresses. The International Dysphagia Diet Standardisation Initiative has identified five classifications of food preparation appropriate to, among others, the needs of persons whose ability to eat normally through the ageing process deteriorates as they are no longer able to eat regular food but need it to be prepared so it is more easily consumed, culminating in them needing to receive pureed food. The preparation of food complying with those standards, and its presentation in an attractive or appetising position, involves particular culinary or kitchen skills and attention to relevant health and safety standards prescribed by, among others, the New South Wales Department of Primary Industries Food Authority and the Quality and Safety Commission. The Catering Industries’ employees in the facility must comply with both latter standards.

The issues

22    There are three critical issues for present purposes, 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).

23    The issue that is thrown up in this proceeding might have been able to be resolved by the parties asking the Commission, in exercise of its powers under s 157(1), to vary one or both of the awards to identify exactly which it considered applicable. But rather than do that, they have left the question for the Court.

The Union’s submissions

24    The Union argued that because both awards were industry awards and not occupational awards, the natural and ordinary meaning of their provisions required cl 4.4(d)(xi) of the Hospitality Award to be read as recognising that Catering Industries was in the aged care industry, because it fell within the opening words of that clause before the words in brackets. It contended that the exception in cl 4.4(d)(xi) necessarily acknowledged that an employer providing catering services “for or within an aged care facility” is an employer in the aged care industry, even if it were otherwise covered by Hospitality Award, so as not to make the bracketed words otiose. It submitted that its construction resulted in a more reasonable position than Catering Industries’ argument that confused the concepts of coverage and application of an award. The Union argued that cl 4.4(d)(xi) of the Hospitality Award was concerned with coverage, not application, within the meaning of those concepts in ss 47 and 48 of the Fair Work Act.

25    The Union contended that the function of providing catering to the facility was an integral part of the aged care industry and thus, because Catering Industries provided those services at the facility, it necessarily was “in the aged care industry”. The Union submitted that Catering Industries’ employees who worked at the facility were, first, covered by the Aged Care Award and, secondly, that award applied to them because the Hospitality Award excluded them by reason of its use of the words in brackets in cl 4.4(d)(xi).

26    The Union argued that the nature of the work of the catering staff at the facility never changed from when they worked first for Banks Residential Care and then for Heritage Care, before they transferred to Catering Industries staff. That was because they performed the same work under each employer and the only difference was the identity of their employer. The Union contended that the contracts of employment required the transferring employees to continue to perform the same work, as they always had, within the meaning of the enterprise agreement. In addition, the Union submitted that both Heritage Care, and later Catering Industries, had to comply with all of the same regulatory requirements for the delivery of the food and sustenance to residents at the facility. It argued that the employees had to perform their tasks in the same way as they had both before and after Catering Industries became their employer, and the staff had to be trained to deal with matters specific to the provision of aged care services.

27    The Union also argued that Catering Industries’ construction of the definition of the aged care industry in the Aged Care Award was artificial and too narrow. It asserted that the functions performed by Catering Industries’ staff at the facility were clearly within the concept of the aged care industry as defined in the Aged Care Award because of the specific nature of the tasks required to prepare food for aged residents and comply with the aged care quality standards prescribed by the Quality and Safety Commission. The Union argued that it was not necessary for every function or service that an employer undertook or provided to meet the whole of the definition of the aged care industry in the Aged Care Award. It disputed Catering Industries’ construction of that award as requiring provision of both accommodation and care services as a necessary condition of an employer being in the aged care industry.

28    The Union argued that the classifications in the enterprise agreement, taken as they are from the Aged Care Award, worked efficiently and well and were entirely appropriate to describe the functions and tasks of the employees working at the facility so that nothing was added to, or gained by, the descriptions of kitchen work of a more precise nature that dealt with cooking skills in the Hospitality Award classifications. The Union also pointed to the fact that none of the witnesses called identified the need to use, or the actual use of, the classifications in the Hospitality Award to describe the work that the transferring employees performed. It argued that this indicated that the status quo, being the employees’ coverage by the Aged Care Award, was the more appropriate coverage for the purposes of the reconciliation clauses.

Consideration

29    The purpose of the modern award system in the Fair Work Act is to enable the Commission to make modern awards to cover various industries. The Commission is able to specify a series of standard terms that the Act either requires or permits to be included in a modern award so that its conditions will apply to employers and employees in an industry covered by the Fair Work Act in a relatively integrated and holistic way. Nonetheless, as each of the Aged Care Award and Hospitality Award recognises in its reconciliation clause (cll 4.7 and 4.5 respectively), there is a real possibility that two modern awards may overlap in their coverage of an employer or some of its employees, so that an assessment process must be undertaken in accordance with the reconciliation clauses to determine which modern award, in fact, applies within the meaning of s 47(1) of the Fair Work Act to the particular employer and its employees.

30    I am of opinion that the appropriate approach to the construction of cl 4.4(d)(xi) of the Hospitality Award is that identified that by Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ in Australian Securities and Investments Commission v DB Management Pty Limited (2000) 199 CLR 321 at 338 [34]–[35] (and see too: Treasury Wine Estates Vintners Ltd v Pearson (2019) 268 FCR 12 at 29–31 [73]–[79] per Rares, Perry and Charlesworth JJ), namely:

34     In Project Blue Sky Inc v Australian Broadcasting Authority ((1998) 194 CLR 355 at 384, per McHugh, Gummow, Kirby and Hayne JJ), after pointing out that the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have, the majority said:

“Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

35     It may be added that, if a party contends that a provision, by reason of such considerations, should not be given its literal meaning, then such a contention may lack force unless accompanied by some plausible formulation of an alternative legal meaning.

(emphasis added)

31    It is evident from the drafting of cl 4 of the Hospitality Award, read as a whole, that the Commission was aware of the capacity of the Aged Care Award to cover the same employer and employees in an aged care facility as the former award covers. That recognition appears in terms in the opening words of cl 4.4(d)(xi), which expressly exclude catering services provided by employers in the aged care industry from coverage by the Hospitality Award.

32    I reject the Union’s argument that, because the Commission did not specifically exclude employers covered by the Aged Care Award, as it had excluded restaurants covered by the particular awards identified in cl 4.4(d)(ix), it followed that the Hospitality Award could not cover Catering Industries’ employees at the facility. In my opinion, the wording of cl 4.4(d)(xi) indicates that the Commission was aware that there were more nuances to the provision of catering services to the aged care industry. The words in brackets in cl 4.4(d)(xi) must be given a meaning. Those words deal with services where the food is likely to have been prepared by a contractor or third party other than the owner or operator of an aged care facility, that provides catering services either using food prepared outside, and then brought into, an aged care facility or food prepared inside the facility. However, in each of these cases, the employer of the employees performing those services otherwise would be covered by the Hospitality Award.

33    Here, the Commission intended that coverage under the Hospitality Award would extend to a caterer in the hospitality industry that provides catering services under that award for or within an aged care facility. Where the caterer employer does so, the wording of cl 4.4(d)(xi) recognises that it will not fall within the definition of the integrated functions of an employer operating, perhaps exclusively, in the aged care industry that include the provision of catering services, as part of its overall business of providing residential care within the meaning of s 41–3 of the Aged Care Act or cl 4.1 of the Aged Care Award.

34    It is difficult to identify a regulatory purpose in cl 4.4(d)(xi) in the Hospitality Award for excluding from the class of employers in the aged care industry coverage of a caterer in respect of catering “services provided for or within an aged care facility” that, nonetheless, leaves open coverage of an employer in respect of its provision of the same services under the Aged Care Award, unless the clause was distinguishing between the nature of the employer’s role in providing services as a caterer that was not itself providing the full range of residential or aged care services and one that did so.

35    It would be an odd result that the Commission intended to create ambiguity in the scope of the coverage of each award, by seeking to provide specifically for coverage of catering services in the aged care industry, in both the Aged Care Award and cl 4.4(d)(xi) of the Hospitality Award. While that is the difficulty under which both parties are currently labouring, the Commission specifically turned its attention to the scope of coverage by each award in respect of employers involved in the hospitality industry who or which, as a contractor that is otherwise also a caterer in the aged care industry, provide catering services for or within an aged-care facility. The bracketed exception in cl 4.4(d)(xi) of the Hospitality Award, recognises that, but for its operation, the Aged Care Award would cover and apply to those employers.

36    In my opinion, the natural and ordinary meaning of the two awards, read together, is 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 employees 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.

37    For those reasons, I reject the Union’s construction of cl 4.4(d)(xi) of the Hospitality Award.

The other issues

38    In case I am wrong in this construction, I should briefly deal with the other two arguments.

Consideration – The definitional issue

39    I reject Catering Industries’ argument on the definitional issue. If (contrary to my finding above) cl 4.4(d)(xi) left open the capacity of the Aged Care Award to cover employers and employees engaged in the provision of catering services for or within an aged care facility, then it seems to me that the construction of the definition of “aged care industry” in cl 3.1 of the Aged Care Award, advanced by Catering Industries, would give no work to the operation of the Aged Care Award. The natural and ordinary meaning of the definition of “aged care industry” is an industry that provides accommodation and care services amounting to residential care within the meaning of s 41–3 of the Aged Care Act. Because cl 4.1 of the Aged Care Award covers employers in the aged care industry and their employees, it enables those employers to provide some, but not all, services necessary to fall within the aged care industry, as long as those services are being provided as a whole to persons in aged care. It is not unknown that different members of a group of companies employ identified staff for particular or specific functions, including, for example, provision of catering services by one company and nursing or other residential care services by another at the same premises operated by one or more members of the corporate group. The 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”.

Consideration – The reconciliation issue

40    In my opinion, the Union’s argument on the reconciliation issue is not correct.

41    Regrettably, the authorities do not appear to provide any particular guidance as to how one construes reconciliation clauses beyond what Siopis, Buchanan, and Flick JJ said in Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449 at 458 [35], namely, that the task is to compare and evaluate the two sets of classifications. With respect, that is an accurate summary of what the reconciliation clauses specify, but it is of limited assistance in how to perform that task.

42    It seems to me that the purpose of each reconciliation clause requires the consideration of the classifications in each award to determine which system of classification is the more appropriate to the work performed by the particular employee, and relevantly, either the industry in which he or she works, as the Hospitality Award provides in cl 4.5, or the environment in which the employee normally performs the work, as the Aged Care Award provides in cl 4.7.

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.

Conclusion

44    For these reasons, I am of opinion that the Union’s application should be dismissed because it has failed to demonstrate that Catering Industries is an employer in the aged care industry for the purposes of the Aged Care Award.

Associate:

Dated:    29 June 2022