T6098
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Health Services Union of Australia, COMMUNITY SERVICES AWARD
Interpretation of award REASONS FOR DECISION The applicant, the Health Services Union of Australia, Tasmania No. 1 Branch (the HSUA), sought a declaration pursuant to section 43 of the Industrial Relations Act 1984 that the provisions of the Community Services Award, more particularly Clause 2, Scope, covered Personal Carers employed by Family Based Care Association (South) Inc. The HSUA had received advice from the Manager of Family Based Care (South) Inc. that it considered its employees were excluded from that award. The Scope clause of the award is as follows:
Mr Brown, for the HSUA, established the background of the circumstances leading to the difference of opinion between the parties and, amongst other things, referred to a decision of a full bench of the Commission in the making of the Community Services Award1 in which it determined that the classification of "personal carer" was not to be excluded from the proposed scope clause. Mr Brown also referred to the fact that his union, then known as the Hospital Employees Federation of Australia, Tasmania Branch, as a result of the agreed position reached before the abovementioned full bench, had withdrawn its Application T2691 of 1990 for this particular industry, that is the activities of organisations such as Family Based Care Inc. to be covered by the Welfare and Voluntary Agencies Award, now the Disability Service Providers Award. Handbooks for Support Workers (Exhibit B6) and Consumers (Exhibit B7) were tendered by the applicant and with the agreement of the employer, and both parties said they accurately reflected the nature of the work of the Association and its employees. The Commission's attention was drawn to the description of Family Based Care at page 3 of both documents which was as follows:
There were two types of care set out at page 4, viz.:
The functions of the Family Based Care Manager and Co-ordinators and Home Support Workers were set out at pages 5 and 6 of the Booklet. Mr Brown argued, and he was supported by Mr Paterson for the Australian Municipal, Administrative, Clerical and Services Union (the ASU), that the activities of the Association and those of its employees were clearly comprehended in subclause (a) of the Scope clause. That is, that the work of the Association was a social and community service in which the primary functions and industrial pursuits included, in particular, those factors referred to in paragraphs (a), (i), (iv) and (v). Mr Watson of the Tasmanian Chamber of Commerce and Industry Limited (the TCCI) representing the Family Based Care Association (South) Inc. responded by claiming that subclause (b) excluded certain services and/or occupations from coverage by the award. He referred specifically to that part of the exclusion provision which is -
He submitted that the underlined words accurately described the work of the Association and that there was no ambiguity in their intent. He relied on the guidelines for interpretation used by the Commission in these matters and claimed that the words must have attributed to them their true meaning. If they were not ambiguous he said the Commission should not look to supporting material such as that identified by the applicant to establish the intent of the parties. Subclause (a) of the Scope clause would seem to indicate that the activities of Family Based Care Association (South) Inc. as set out in the Handbooks, Exhibits B6 and B7, are capable of being covered by the award. However I agree with the employer's submission that subclause (b) quite expressly describes services such as those provided by Family Based Care Association (South) Inc. as being services which should be excluded from coverage by the award. I am satisfied that the Association provides "personal support and/or personal care to persons with intellectual, sensory or physical disability". That this is so is clear from the description of the service provided by the Association as contained in the Handbooks, particularly the words "Family Based Care is a service which aims to enhance the quality of life of people with disabilities ...", and the material at pages 3, 4, 5 and 6 of the Handbooks. The Association appears not to differentiate between the various forms of disability and provides its service in respect of disabilities generally. Nothing to the contrary was put to me. The guidelines of interpretation adopted by this Commission do not permit me to go to the judgment accompanying the award to establish its true meaning unless "genuine ambiguity exists", and it is not permissible to import into an award by implication a provision which its language does not express. As a consequence I am unable to have regard to the decision of 22 January 1992 which was referred to me by the union. In the circumstances, by virtue of the words in the Scope Clause as underlined, I am persuaded that the Family Based Care Association (South) Inc. is not subject to the Community Services Award. Accordingly I declare that Clause 2 - Scope, of the Community Services Award at subclause (b) shall mean that an organisation providing services such as those provided by the Family Based Care Association (South) Inc. is excluded from the operation of the award. This declaration shall apply retrospectively to the date the Community Services Award was first made, i.e. 22 January 1992.
F D Westwood Appearances: Date and place of hearing: 1 T2225 of 1989, T2311 and 2691 of 1990, dated 22 January 1992 |