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T1919 (2 January 1990)

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

T.1919 of 1989

IN THE MATTER OF AN APPLICATION BY THE FEDERATED MISCELLANEOUS WORKERS' UNION, TASMANIAN BRANCH, FOR INTERPRETATION OF THE MISCELLANEOUS WORKERS AWARD

  RE: CLAUSE 7, `DOMESTIC'
   
PRESIDENT 2 JANUARY 1990

INTERPRETATION

APPEARANCES:  

For the Federated Miscellaneous
Workers' Union

- Mr K O'Brien
For the Tasmanian Confederation of
Industries
  - Mr W J Fitzgerald
DATE AND PLACE OF HEARING: 
20.12.89                       HOBART  

 

On 3 October 1989 I handed down a decision relating to a threshold jurisdictional challenge presented by the Tasmanian Confederation of Industries (TCI). That challenge went to the question of the Commission's capacity to interpret the Miscellaneous Workers Award1 in relation to personal carers, whom, it was argued were not employees. Among other things, I said:

    "Having regard for the voluminous evidence presented to the Commission in relation to this threshold point, and as was suggested by the parties, I believe that I am in a position to make a decision on the original application which, if reduced to its lowest common denominator, really only required a determination whether work performed by certain people fell within the purview of the work covered by the Miscellaneous Workers Award.

    However, I must refrain from determining that specific matter at this stage.

    Accordingly I find that on the balance of probabilities, the Commission does have jurisdiction to entertain the application for interpretation. It follows that I reject the TCI assertion that the subject is not an industrial matter. In my opinion it is, and I decide accordingly."

    Decision, pp.19/20

It now falls to me to make a declaratory finding whether or not the award definition of "domestic" is wide enough in its scope to embrace the work done by persons designated personal carers.

The duties of personal carers, or personal care assistants, as set out in Exhibit N include the following:

  • Lifting, positioning and mobilisation of clients.

  • Washing, showering, bathing, drying, attending to pressure areas, attending to hair (including washing), brushing teeth, shaving, hand and foot nail care, and generally assisting in all aspects of personal grooming of the client.

  • Assisting in dressing and undressing clients.

  • Assisting in exercising other than physiotherapy tasks, but including ongoing exercises intended to increase or sustain mobility, such as accompaniment on walks or assisting on bending and stretching.

  • Carrying out limited meal preparation, particularly breakfast, or assisting in evening meal preparation.

  • Assisting in feeding, such as cutting meat, helping client hold implements, and making sure that hot beverages are cool enough to drink etc.

  • Carrying out a limited amount of reading to the person if required, e.g. newspapers, daily Bible reading and switch on radios, wind clocks etc. if those tasks are difficult for the client to perform.

  • May involve attending to all "soiled clothing", bed linen etc. Beds need to be made. (Washing is not the personal carer's duty).

  • Contacting doctors where required, make appointments on behalf of the client and use telephones at the request of clients.

The award definition of "domestic" means:

    "... an employee who shall perform normal household duties which (without limiting such duties) may include cleaning, laundering, ironing, cooking and child minding."

A number of exhibits were tendered and three witnesses were called to give oral evidence either for or against the proposition that the work described earlier either falls within or does not fall within the above definition of "domestic".

For his part Mr O'Brien relied heavily upon a decision of Mr Commissioner Cox of the Australian Industrial Relations Commission. He relied as well on a subsequent decision of an appeal bench which confirmed the Commissioner's view that the work of home helpers, including personal carers, was work that properly fell within the conditions of eligibility of the Federated Miscellaneous Workers' Union (FMWU).

To the best of my knowledge and belief, the union rules, including the conditions of eligibility rule, registered with this Commission are the same as those registered in the Federal jurisdiction and referred to by Mr Commissioner Cox.

However that may be, the matter now before the Commission is not a question of whether or not there exists constitutional coverage for personal carers, but whether or not the existing award classification, or, I suppose, any of the present award classifications comprehend the work described for personal carers.

In my opinion the classification of "domestic", or to be more precise the definition assigned to the classification of "domestic", when considered in the context of ordinary usage after applying the normal canons of construction to the words used in that definition, do not lead one inescapably to the conclusion postulated by Mr O'Brien. That is, that the award maker had in mind, among other things, personal carers when he framed the definition of "domestic".

It may well be that from time to time a personal carer does carry out some of the duties envisaged by the classification. Quite clearly a carer can, and undoubtedly does, perform some of those duties, depending upon the circumstances of a particular "client"; for example, when a client requires a carer to prepare a meal or assist in the preparation of a meal. Unquestionably that work would fall within the purview of the definition of "domestic".

However, the difficulty that one faces in attempting to comply with the request for a declaratory statement is that those duties may form only a minor part of the carer's general tasks. The majority of the duties may fall outside of the definition. In order to better understand the Commission's dilemma, it is I think necessary to examine more closely the award reference to "performance of normal household duties" as the criterion against which to test the individual tasks carried out. According to Webster's Dictionary of Synonyms and Antonyms, "normal" is said to mean "regular, typical, natural, ordinary, common, familiar, usual, customary, habitual, warranted and accustomed".

When any of those adjectives are read in conjunction with the noun "household" or "house", which qualifies the noun "duties", as exampled by such tasks as cleaning, laundering, ironing, cooking and child minding, it is difficult to conclude that such functions as lifting, positioning and mobilisation of clients, washing, showering, bathing, drying, attending to pressure areas, attending to hair, brushing teeth, shaving, hand, foot and nail care, assisting in dressing and undressing, assisting in feeding, holding implements, reading to clients, switching on and off radios, winding clocks, and matters of that kind are domestic household matter. The latter group of tasks I think are indeed personal and not household.

That is not to say or imply that the FMWU could not legally enrol such persons as members. On the contrary, that has already been determined in another place. But I do believe that a more descriptive definition or classification would need to be inserted in the award in order to put beyond doubt the type of person covered by the definitions of, on the one hand, "domestic", and on the other, say, "personal carer" or "home help".

In order to further test this conclusion one could hardly say that an employed domestic doing the family washing, ironing, or cleaning was in fact no different from a personal carer attending to some disabled client and performing most of the tasks referred to. It seems to me that that is taking too much licence with the adjectival noun "domestic".

The Macquarie Dictionary defines "domestic help" (as indeed one imagines the classification of domestic envisages) as:

    "... one hired to provide assistance in the house, especially with cleaning."

The adjective "domestic", among other things is defined to mean:

    " ... of or pertaining to the home, the household or household affairs; devoted to home life or affairs."

The adjectival noun "domestic" is defined as a "hired household servant".

Accordingly, I declare that the classification of "domestic" means a hired employee required to perform normal household duties which may include household cleaning, household laundering, household ironing, household cooking, and child minding, but not exclusively so. However, other duties that may be performed should be those that would ordinarily be performed within a household and generally concerned with household duties such as washing up. Scrubbing floors, walls and matters of that kind.

As I have said on many prior occasions, where a defect in the award is discovered and that defect is in need of repair, the appropriate remedy is to apply to vary the award.

I therefore refrain from effecting any "repairs" to the definition of domestic as the parties themselves may wish to test my finding in another way. Failing that, I am firmly of the opinion that whenever an award variation is deemed to be necessary in order to protect the efficacy of, or to clarify an award, that should only occur after the parties have been afforded an opportunity to present merit arguments for or against the nature of the change required.

The award is interpreted accordingly.

Should there be any misunderstanding, it has been my intention to include in my reasons the declaratory statement requested. This I have done.

The declaration I make will take effect prospectively from 15 January 1990.

L A Koerbin
PRESIDENT

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