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T12613

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s29 application for hearing of an industrial dispute

Decision Appealed - See T12891

Health Services Union of Australia, Tasmania No 1 Branch
(T12613 of 2006)

and

D G Lewis Pty Ltd

 

COMMISSIONER T J ABEY

HOBART, 24 January 2007

Industrial dispute - alleged breach of the Community Services Award - Award coverage - classification level - Community Service Employee Level 2B applies - order issued

REASONS FOR SUPPLEMENTARY DECISION

[1] On 16 May 2006 I issued a decision that contained the following findings:

(1) D G Lewis Pty Ltd was covered by the Community Services Award.

(2) The appropriate classification for the work performed by Mr Jeffries is a Community Services Employee - Level 2B.

[2] The parties were directed to confer with the view of reaching a settlement. No order was issued at that point.

[3] On 2 October 2006 the HSUA wrote to the Commission advising that settlement had not been reached. A further conciliation conference was accordingly convened for 6 November 2006.

[4] On 27 November 2006 the respondent wrote to the Commission advising:

"We have reviewed all the circumstances as they pertain to the above matter and believe that certain additional information should be presented to assist in a final resolution. Notwithstanding our previous submissions, we now submit that service in which Mr Mark Jeffries was employed from 7 December 2000 to 27 February 2006 falls within the scope of the Disability Service Providers Award and the appropriate classification for his position is Disability Support Worker Level 4.

As such, we request a ruling that D.G. Lewis Pty Ltd is not in breach of the Community Services Award as charged by the HSUA."

[5] The correspondence went on to outline argument in support of this contention and concluded with the following:

"As the response to this submission has a direct bearing on the basis for negotiations with Mr Jeffries in relation to his entitlement to back payment, we have suspended further discussions with the HSUA in regard to settlement."

[6] A further hearing was listed for 21 December 2006. After hearing the parties I determined that, notwithstanding my earlier findings, the Commission was prepared to take into account further submissions on the basis that this material was not before the Commission at the time of my earlier finding. This approach in my view is consistent with sections 20 and 31 of the Act. Accordingly, a further hearing was convened for 11 January 2007 for the purpose of concluding submissions.

Submissions

Mr Kregor, for the respondent:

[7] The Scope clause of the Disability Service Providers Award [DSPA] is intended to include services that are normally referred to as "Group Homes".

[8] The Group Home model commonly involves residents living in their own home, (for which they pay rent) and are assisted to pursue active lives in the community with the support of staff employed to support them.

[9] The service operated by the respondent is identical in relevant respects to a group home, except that in this instance, there is a single resident. The Scope clause of the DSPA makes no distinction in respect of the number of persons receiving services.

[10] The respondent employs a team of five staff, who work in rotating shifts individually providing support to a single consumer. The duties of all employees fall within the definition of Disability Support Worker Level 4 in the DSPA.

[11] Duties and responsibilities that might otherwise fall to a person employed under a higher classification are performed by one or other of the Company Directors.

[12] The Community Services Award [CSA] covers persons employed to provide support in private homes, who are not subject to supervision by "higher classified employees". Such employees typically provide personal care and support to more than one individual in more than one home. This is demonstrably unlike the circumstances in which Mr Jeffries was employed.

[13] Ms Goldfinch, for the applicant:

[14] D G Lewis Pty Ltd must be distinguished from the Group Home model. These homes are under a tenancy agreement, whereby the master tenant is the organisation providing support, who then sublets the homes to the clients. Examples include Optia and Oakdale, which lease purpose-built houses from the Housing department, and then sublet to clients of the service. Another example is Anglicare, who has been provided with houses by MAIB for people with acquired brain or spinal injuries, who in turn pay rent to Anglicare. This is not the case with D G Lewis Pty Ltd, whereby one of the directors lives in his own home, and is the consumer of services provided by employees of the company.

[15] A distinction should be drawn between group homes and circumstances whereby an employee works in a client's home. In the former case there are always senior staff members on site, with access to nursing staff when required. In these cases the DSPA is the appropriate award.

Findings

[16] The correct approach in determining award coverage under an "industry" award is found in NGT Pty Ltd v NUW in which the Full Bench stated:1

"The correct test is an assessment of the character of the employer's business. The work performed by employees only becomes relevant if the nature of the employer's business fits within the Scope clause. We agree with the observation of the TCCI that it is a "cart before the horse" approach to determine the work of the employee before first determining the industry of the employer."

[17] Applying this rule to the instant case means that the classification only becomes a relevant consideration if the employer is found to be in the industry referred to in the Scope clause.

[18] The Scope of the two awards relevantly read as follows:

Community Services Award

"3. SCOPE

(a) This award is established in respect of the industry of social and community services, in which the primary functions/industrial pursuits include:

(i) ...

(ii) ...

(iii) ...

(iv) ...

(v) ...

(vi) providing personal care for persons who have an intellectual, physical, psychiatric, and/or sensory disability in locations other than those covered by the Disability Service Providers Award and the Nursing Homes Award.

(b) This award shall not have incidence on the following services and/or occupations:

(i) the industry of providing residential care and/or employment and related activities for persons who are intellectually, physically, psychiatric, and/or sensory disabled in homes or institutions established for that purpose;"

Disability Service Providers Award

"3. SCOPE

This award is established in respect of the industry of providing residential care and employment and related activities for persons who have intellectual physical, psychiatric and/or sensory disabilities in homes or institutions established for that purpose."

[19] It is clear that both awards cover discrete sections of the industry of providing personal care for persons "who have intellectual, physical, psychiatric and/or sensory disabilities.

[20] How then are the awards distinguished?

[21] It is clear from an examination of both Awards that the CSA has "catch all' application unless specifically covered by either the DSPA or the Nursing Homes Award (not relevant to current application).

[22] To be covered by the DSPA the residential care must be provided "in homes or institutions established for that purpose."

[23] The CSA was varied to reflect the current Scope clause in T6152 of 1996. In proceedings before Robinson DP, Mr Brown for HSUA said:2

"Mr Deputy President, the HSUA sought this hearing under section 23[1] of the Industrial Relations Act 1984 and the application seeks to vary clause 2 Scope of the Community Services Award to include coverage of employees undertaking personal care work in non-institutional settings."

[24] The question to be determined is whether the location where Mr Jeffries was employed was a "home or institution established for that (providing personal care) purpose".

[25] I think not. The only information before the Commission is that the work was performed in the private home of Mr D G Lewis, the consumer of the services and a director of the company. There is nothing before the Commission which would lead to a conclusion that the work was performed in a home specifically established for the purpose of providing residential care.

[26] I therefore conclude that D G Lewis Pty Ltd is covered by the Scope clause of the Community Services Award. Having made this finding a consideration of the classification structure in the DSPA is not relevant.

[27] I have previously determined that the appropriate classification is that of Community Services Employee - Level 2B.

ORDER

Pursuant to Section 31 of the Industrial Relations Act 1984 I hereby order that D G Lewis Pty Ltd pay to Mr Mark Jeffries an amount equivalent to the difference between that which he was paid and the amount that he would be entitled to as a Community Services Employee - Level 2B under the Community Services Award for the period 7 December 2000 until 27 February 2006. Such payment is be made not later than 5.00pm on Wednesday 14 February 2007.

Tim Abey
COMMISSIONER

Appearances:
Ms S Goldfinch with Mr T Kleyn for the Health Services Union of Australia, Tasmania No 1 Branch
Mr P Kregor with Ms M Griffiths, for D G Lewis Pty Ltd

Date and place of hearing:
2006
December 21
2007
January 11
Hobart

1 T10317 of 2002
2 Transcript T6152 of 1996 line 15