[2014] FWCFB 129

FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.604 - Appeal of decisions

Leading Age Services Australia NSW - ACT
(C2013/6015)

Aged care industry

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER ROBERTS

SYDNEY, 17 JANUARY 2014

Appeal against decision [2013] FWC 5696 of Deputy President Gooley at Melbourne on 26 August 2013 in matter number AM2012/70.

[1] Leading Age Services Australia NSW-ACT, acting on its own behalf and on behalf of a number of other aged care employer organisations 1, has filed an appeal, for which permission to appeal is required, against certain aspects of a decision of Deputy President Gooley issued on 26 August 2013 (Decision)2 concerning the Aged Care Award 2010 (Award). In the Decision, the Deputy President conducted the review of the Award required by item 6 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act), which provides:

[2] In practical terms, the discharge of the Commission’s duties under the above provision in respect of the Award essentially involved the Deputy President having to determine a number of applications for variations to the Award sought by various organisations.

[3] The aspects of the Decision the subject of the appeal concern the Deputy President’s rejection of three variations to the Award jointly applied for by the Aged and Community Services Association of NSW & ACT Inc and a number of other aged care employer organisations (ACS). We note that the ACS employer organisations substantially overlap with, but are not the same as, the appellant employer organisations. The appellants contend that in the case of each of the three award variations applied for by ACS, the Deputy President’s decision not to grant the variation was attended by appellable error and should be quashed, and that the application should be re-determined. We will consider the appellants’ case concerning each of the variations in the same order as they were determined by the Deputy President.

Variation 1

[4] Clause 10.3 of the Award currently provides as follows:

[5] ACS sought to vary clause 10.3(c) so that it read as follows:

[6] Clause 22.6 of the Award, to which ACS’s proposed clause 10.3(c) would refer, provides:

[7] ACS’s case before the Deputy President was that there was ambiguity and/or uncertainty in the interrelationship between clause 10.3(c) and clause 22.6(c), in that it was unclear whether the rostered working days and starting and finishing times of any part-time employee could only be changed by way of a written agreement with the part-time employee under clause 10.3(c), or whether they could be changed by means of a unilateral roster variation without the agreement of the part-time employee under clause 22.6(c). ACS contended that its proposed variation would resolve this issue. It adduced evidence from the Manager Employee Relations of Aged and Community Services Association of NSW & ACT Inc, Mr Geoffrey Liggins, to the effect that members of his organisation were confused about whether clause 10.3(c) or clause 22.6(c) had priority. Mr Liggins said in his evidence that the ability to give part-time employees seven days’ notice of a change in roster was consistent with the ability to do the same for full-time and casual employees, and was operationally necessary to meet changes in resident care categories and needs, deal with employee absences on planned and unplanned leave, and resolve general employee turnover issues. He characterised ACS’s proposed variation as one which simply sought to clarify existing award obligations and ensure that employers could utilise clause 22.6(c) without the need to obtain the agreement of part-time employees. ACS also adduced evidence from Mr Richard LeQuesne, Principal Consultant with EMA Consulting, which provided industrial relations advice and services to Aged & Community Services SA/NT and Leading Age Services Australia (SA) and their employer members in South Australia. Mr LeQuesne’s evidence was that he had received a number of enquiries concerning the interaction between clauses 10.3(c) and 22.6(c) of the Award, and had advised that the provisions appeared to be in conflict and “there is an apparent error or ambiguity as a result”.

[8] The Deputy President’s reasons and conclusions concerning this proposed variation were as follows:

[9] The appellants’ appeal grounds concerning this aspect of the Decision were as follows:

[10] In support of these appeal grounds, the appellants submitted that a finding of uncertainty concerning the interaction of clauses 10.3(c) and 22.6(c) should have been made on the basis of the unchallenged evidence of Mr Liggins and Mr LeQuesne concerning confusion amongst employers about the issue and the lack of clarity in the Award as to which provision takes precedence over the other or how they were meant to operate together. The Deputy President, they submitted, had not in her reasons clarified the basis upon which the practical interaction between clauses 10.3(c) and 22.6(c) was to be resolved. Clause 22.6 was concerned with the rostering of ordinary hours, not overtime, so that the Deputy President’s focus on the working of additional hours by part-time employees in her analysis of that provision was misplaced. On the appellants’ submissions, clause 22.6(c) was only concerned with alteration to the days upon which the part-time employee’s agreed ordinary hours would be worked, and the starting and finishing times for the performance of the agreed hours, whereas clause 10.3(c) imposed a requirement for the part-time employee’s written agreement only in respect of a change to the number of ordinary hours required to be worked. The apparent inconsistency between the two provisions should be resolved, the appellants submitted, on that basis.

[11] The appellants pointed to two textual considerations in support of this approach. The first was that clause 10.3(b) required, prior to the commencement of the part-time employee’s employment that there be a written agreement “on a regular pattern of work including the number of hours to be worked each week, the days of the week the employee will work and the starting and finishing times each day”. In this provision, the “number of hours to be worked each week” was therefore a subset of the more general conception of “a regular pattern of work”. By contrast, clause 10.3(c) only required a written agreement as to any variation “to the hours of work”, not to the “regular pattern of work”. This suggested that clause 10.3(c) was intended to be narrower in scope than clause 10.3(b), and that the expression “hours of work” in clause 10.3(c) was intended only to encompass that aspect of the agreement required by clause 10.3(b) which concerned the “number of hours to be worked each week”. This meant, the appellants submitted, that clause 22.6(c) was intended to operate to allow the employer to unilaterally change (upon the required notice being given) “the days of the week the employee will work and the starting and finishing times each day” unimpeded by any requirement for agreement with the employee.

[12] The second textual consideration relied upon by the appellants was clause 25.1(b)(iii), which was part of the scheme of provisions in clause 25 concerning the working of overtime. Clause 25.1(b)(iii) provides:

[13] The appellants submitted that the cross-reference in the above provision to clause 10.3(c) confirmed that the purpose of clause 10.3(c) was to identify the basis upon which the ordinary hours of part-time employees could be changed and thus to avoid the payment of overtime penalty rates if hours additional to those originally agreed were worked. It was not their intention, they submitted, to vary the Award to allow the number of ordinary hours to be changed unilaterally on provision of the required notice, only the days and times upon which the agreed ordinary hours were to be worked.

[14] It must be stated from the outset that ACS’s proposed award variation would, if granted, have an effect directly inconsistent with the approach advanced by the appellants as outlined above. ACS sought to vary clause 10.3(c) - the provision which, the appellants contended, was concerned only with changes to the number of ordinary part-time hours - to introduce, as an alternative to written agreement with the part-time employee, a right on the part of the employer to vary the part-time employee’s hours unilaterally on the provision of seven day’s notice by use of the roster change mechanism in clause 22.6(c). The result would be that the employer could, without the consent of the part-time employee, reduce that employee’s ordinary hours of work notwithstanding what the employer and employee had agreed to prior to the commencement of employment. The result would also be that the employer could unilaterally increase the part-time employee’s ordinary hours and avoid the payment of overtime penalty rates under clause 25.1(b)(iii), because the additional hours required to be worked would become part of the employee’s rostered hours by virtue of clause 22.6(c) and would not be “time worked in excess of ... rostered hours” such as to attract the operation of clause 25.1(b)(iii).

[15] It follows that the Deputy President was correct in directing attention in her consideration of ACS’s proposed variation upon what the Award Modernisation Full Bench had determined concerning the working of additional hours by part-time employees when it made the Award. In Re Award Modernisation 3 a seven member Full Bench expressly considered that issue in relation to three modern awards - this Award, the Nurses Award 2010 and the Health Professionals and Support Services Award 2010. The Full Bench said:

[16] The above passage makes it abundantly clear that it was the Full Bench’s intention that part-time employees could not be required to work additional hours without their written consent. In the Award, clause 10.3(c) gave effect to that intention. ACS’s proposed variation would alter that position so that the number of ordinary hours of a part-time employee could be increased (or reduced) without the employee’s consent. The Deputy President correctly found that the effect of this would be to “make the protections provided by clause 10 otiose”. 4 There was no evidence that any relevant circumstances had changed since the Award Modernisation decision of the Full Bench. ACS did not even contend before the Deputy President, let alone demonstrate, that the Award did not in respect of part-time employees’ hours of work meet the modern awards objective in s.134 or was not operating effectively without anomalies or technical problems arising from the award modernisation process conducted under Part XA of the Workplace Relations Act 1996. On that basis, we consider that the Deputy President was correct in rejecting ACS’s proposed variation to clause 10.3(c), and that this first aspect of the appellants’ appeal must fail.

[17] We note that in the course of the hearing of the appeal, counsel for the appellants suggested that the Award might have been varied in other ways in order to give effect to the approach for which it contended. However, no alternate variation was ever put forward by the appellants. More importantly, ACS did not at first instance ever seek to amend its application in any relevant respect or propose any alternative variation for consideration by the Deputy President. The appellants cannot demonstrate error on the basis of a merits case which was never put to the Deputy President.

[18] Insofar as there is an interpretational contest as to how clauses 10.3(c) and 22.6(c) interrelate with each other, we consider it appropriate to express our views on the subject. Our conclusion is that the effect of clause 10.3(c) is to require any changes to the agreement entered into before the commencement of employment pursuant to clause 10.3(b), including any changes to the number of hours worked each week, the days of the week the employee will work and the starting and finishing times each day, to be by further written agreement, and that clause 22.6(c) does not permit the employer to make unilateral changes in respect of any of these matters for part-time employees by use of its right to change the roster on the provision of the requisite notice. The reasons for our conclusion are as follows.

[19] Clause 10.3 contains a scheme of provisions specific to the subject matter of part-time employment. Applying the generalia specialibus non derogant principle of interpretation, the specific provisions of clause 10.3 should be read as prevailing over other more general provisions of the Award in the case of inconsistency unless the context dictates otherwise. Clause 10.3(a), the commencing provision in the scheme, defines a part-time employee as one who is “engaged to work less than full-time hours of an average of 38 hours per week and has reasonably predictable hours of work” (underlining added). This requirement for reasonable predictability in hours of work stems, we consider, from the originating concept of part-time employment as being suitable for and attractive to persons who have other significant and reasonably predictable family, employment and/or educational commitments and therefore require some certainty as to the days upon which they work and the times they start and finish work. It follows that the other provisions of the Award applying to part-time employees must so far as the language permits be read as giving content to the definitional requirement of reasonable predictability in hours of work.

[20] Clause 10.3(b) establishes the starting point for such reasonable predictability by requiring the employer and the part-time employee to agree in writing, prior to the commencement of employment, upon the regular pattern of work including the number of hours to be worked each week, the days of the week the employee will work and the starting and finishing times each day. It is apparent therefore that agreed working days and starting and finishing times were intended to be a feature of reasonable predictability of hours of work.

[21] Clause 10.3(c) then requires “Any agreed variation to the hours of work will be in writing”. We do not accept the appellants’ submission that the reference to “hours of work” in this provision is confined to that aspect of the agreement entered into under clause 10.3(b) concerning the number of hours of work. We consider that the expression “hours of work” is a well understood one which encompasses the number of hours worked, the days upon which work is performed, and the starting and finishing times of work on each day. We note, for example, that Part 5 of the Award, which deals with ordinary hours, the span of hours, rostering, minimum engagements, weekend work, breaks, overtime and shift work, is entitled “Hours of Work and Related Matters”, thus indicating the breadth of the expression.

[22] The history of clause 10.3(c) confirms that this is the case. Clause 10.3(c), at the time the Award first came into effect, was not in its current form. It then provided as follows:

[23] In this form, it was clear that clause 10.3(c) applied to any aspect of the agreement entered into under clause 10.3(b), not just the number of ordinary hours to be worked. At this time, the drafting of clause 10.3(c) was identical with that of clause 10.3(c) of the Nurses Award 2010 and clause 10.3(c) of the Health Professionals and Support Services Award 2010. As earlier outlined, the part-time provisions of those two awards were determined conjointly with the Award by the Full Bench in the 2009 Re Award Modernisation decision.

[24] Subsequently in 2010 a Full Bench considered a number of applications for variations to the Award made by various organisations. One such application was made by a group of South Australian aged care employers, represented by EMA Consulting Pty Ltd. Among other things, they sought a variation to clause 10.3 which would have had the provision include the following in lieu of clauses 10.3(b) and (c):

[25] In its decision issued on 23 March 2010 (Aged Care Award 2010 6) the Full Bench determined not to grant the application, but did vary clause 10.3(c) to its current form. The Full Bench’s reasons were as follows:

[26] The above reasons make it clear that the purpose of the Full Bench in making the variation was not to confine the operation of clause 10.3(c) to agreements to change only the number of ordinary hours to be worked by a part-time employee. The Full Bench expressly referred to the new provision as applying to variations to the agreed “pattern of work”. That expression is the same as that used in clause 10.3(b) to describe the subject matter of the pre-commencement written agreement, and would (as it does in clause 10.3(b)) cover not just the number of ordinary hours to be worked, but also the days and times in which those hours are to be worked. The purpose of the variation was only, as the Full Bench stated, to make clear that an hours of work agreement variation under clause 10.3(c) could cover one-off as well as permanent changes to hours of work.

[27] The appellants’ submissions concerning the effect of clause 22.6(c) and its relationship with clause 10.3(c) suffer from two major flaws. The first is that it leads to a result whereby the requirement for “reasonably predictable hours of work” in clause 10.3(a) is left without any substance. Under the appellants’ approach, an employer, notwithstanding the agreement reached prior to the commencement of employment concerning inter alia the days upon which work is to be performed and the starting and finishing times of work on each day, could unilaterally vary that agreement via a roster change at any time after employment commenced, and vary it as frequently thereafter as suited the employer, provided the required notice was given. This would not constitute predictability in employment in any reasonable sense.

[28] The second is that the appellants’ approach fails to take into account clause 22.6(d), which provides that that “this clause” (that is, clause 22.6, which includes the roster change provision in clause 22.6(c)) does not apply where the only change to the roster is the mutually agreed addition of extra hours for a part-time employee where the employee still has two rostered days off in the week or four in the fortnight. Clause 22.6(d), read in accordance with its ordinary meaning, demonstrates that where the roster of a part-time employee is changed because of an agreed addition of extra hours which does not meet the specified condition concerning the number of rostered days off in a week or a fortnight, the provisions of clause 22.6 apply - that is, the requisite notice period of the roster change would have to be given. That means, contrary to the appellants’ submissions, that clause 22.6(c) does have application, subject to the exception in clause 22.6(d), to roster changes involving changes to the number of a part-time employee’s hours, not just the days upon which such hours will be worked and the starting and finishing times on those days. It also indicates that clause 22.6 operates subject to clause 10.3(c), in that changes to part-time employee hours which have been agreed under clause 10.3(c) must still be displayed on the roster and the requisite notice given of the change unless the exception in clause 22.6(d) applies.

[29] We note that the conclusion we have reached is consistent with a determination concerning a similar issue of interpretation by a Full Bench in Transport Workers’ Union of Australia v Qantas Airways Limited. 7 In that case, a workplace agreement between the parties contained provisions which required written agreement between the employer and any part-time employee concerning the minimum number of hours to be worked, with any variation to be by way of written agreement, but also contained provisions allowing for roster changes to be introduced unilaterally upon notice. There was a dispute between the parties as to whether a part-time employee’s hours could be changed by use of the roster change provision. The Full Bench held that they could not. Its reasons were as follows:

[30] Finally we observe that the appellants’ case, which was essentially run on the basis that the Award required amendment to rectify technical issues in its drafting, was in truth more directed at dealing with important merit issues concerning the degree to which there can be flexibility in the employment of part-time employees. Those merit issues could not be determined in this proceeding because of the dearth of any evidence which would permit an informed assessment and determination to be made about them. We do not know, for example, the extent to which aged care employers actually engage part-time employees, the demographic profile of such employees, the functions they typically perform, or the extent to which and the circumstances in which aged care employers need to change rosters in a way that affects part-time employees. It may be that a requirement for aged care employers to obtain the written agreement of the part-time employee for any change in working hours whatsoever is more than is necessary to achieve reasonable predictability in the part-time employee’s working hours. We express no opinion about this but simply observe that these are matters which the appellants will have the opportunity to seek to address in the four-year review of the Award to be conducted under s.156 of the Act which will commence later this year.

Variation 2

[31] Clause 15.4 of the Award provides as follows:

[32] The variation sought by ACS before the Deputy President was the addition of the word “overtime” after the word “work” where it first appeared in clause 15.4(a)(i). This variation was, ACS submitted to the Deputy President, necessary in order to make it clear that the meal allowance was payable under that provision only where the additional hours being worked were overtime hours. ACS adduced evidence from Mr Liggins and Mr LeQuesne that they had received inquiries from employers about this issue. ACS also placed reliance upon a decision of Vice President Watson in Nurses Award 2010 8 in which his Honour had varied the Nurses Award in respect of a similar provision.

[33] The Deputy President declined to make the variation sought. Her reasoning in support of this conclusion was as follows:

[34] The appellants’ grounds of appeal as to this aspect of the Decision were as follows:

[35] The appellants’ written and oral appeal submissions did not greatly elaborate upon these grounds.

[36] We do not consider that the appellants have demonstrated any error in the Decision with respect to the second variation sought by ACS. The Deputy President’s analysis of clause 15.4(a) of the Award made it clear that a meal allowance was only payable under that provision when overtime was worked by excluding the only conceivable circumstance (a part-time employee working extended hours by agreement) where it might otherwise apply. The appellants do not contend that the Deputy President’s analysis was in error, which is not surprising because it is consistent with the approach which they preferred.

[37] Notwithstanding this, the appellants contend that the Deputy President erred in not varying the Award because there was confusion and ambiguity in respect of clause 15.4(a). We disagree. Like the Deputy President, we consider that it is quite clear what the provision means. The appellants did not identify any reasonably arguable alternative interpretation of the provision that meant that a clarificatory amendment to the Award was required. The appellants did contend that one respondent, United Voice, had at first instance “advanced (or at least attempted ... to advance)” an alternative argument about the interpretation of clause 15.4(a). That is, with respect, not entirely correct. It is true that in its written submissions at first instance, United Voice contended that clause 15.4(a) “does not exclude a situation when no overtime is worked” 9. However, a perusal of the transcript of the hearing before the Deputy President demonstrates that, in the course of argument, United Voice’s representative conceded that there were no circumstances under the Award where a person could be required to work after their usual finishing time where that work would not constitute overtime.10 Counsel for ACS made no submission in response that this concession was incorrect or even arguably incorrect. That meant that, at the time the Deputy President reserved her decision, no party was contending that clause 15.4(a)(i) had any application to work performed after the usual finishing time apart from overtime work. The Deputy President was therefore correct to conclude that the provision was not subject to differing interpretations. The fact that Mr Liggins and Mr LeQuesne had received inquiries about the operation of the provision could not, without more, render that conclusion erroneous.

[38] To the extent that ACS’s application for this variation was made for the purpose of obtaining clarification as to the meaning and operation of clause 15.4(a)(i) in a way favourable to aged care employers’ interests, it seems to us that such a purpose was achieved by the Deputy President’s interpretation of the provision in the Decision. None of the respondents to the appeal took any issue with that interpretation, so that any issue that may have existed can now be regarded as entirely settled.

Variation 3

[39] Clause 28.2 of the Award defines what a shift worker is for the purpose of the NES. Such a definition in an award serves the function of identifying which employees covered by the Award are entitled to an extra week’s annual leave under s.87(1)(b) of the Act. Relevantly, clause 28.2 currently provides:

[40] The variation proposed by ACS was to replace clause 28.2(b) with the following:

[41] ACS’s case at first instance in support of this variation essentially involved two propositions: firstly, that clause 28.2 was ambiguous and uncertain because it did not define what “regularly rostered” meant, and secondly that the variation would ensure that the Award’s definition of “regularly rostered” remained “consistent with the long history of authorities at both Federal and State levels as to the concept of ‘regularly rostered’ for additional annual leave purposes”. 11 ACS again relied on evidence from Mr Liggins and Mr LeQuesne that they had received inquiries from aged care employers about what “regularly rostered” meant. Mr LeQuesne said that he advised such employers that “the concept of regularity is to be determined on a case by case basis, based upon what an individual employee works”, but said it was unclear to him whether such determinations are always right or wrong and that in the absence of guidance on the issue different people may have different opinions as to what regularly rostered meant.12

[42] The ACS variation was opposed not only by the three unions appearing at first instance, namely United Voice, the Health Services Union and the Australian Nursing Federation, now the Australian Nursing and Midwifery Federation (ANMF), but also by the Australian Federation of Employers and Industries (AFEI). In its submissions ANMF directed attention to two earlier decisions concerning clause 28.2 of the Award. In Aged Care Award 2010 13 (to which we have earlier referred in connection with variation 1) the Full Bench among other things rejected an application by South Australian aged care employers to change the definition of shiftworker for the purpose of clause 28.2, stating: “We are not persuaded that we should revisit the definition of shift worker contained in the award and nothing has been put to us to indicate a change in circumstances since the award was made.”

[43] EMA Consulting Pty Ltd on behalf of various South Australian aged care employers subsequently made an application under s.160 of the Act to vary clause 28.2 to remove alleged ambiguity and rectify error. At that time, clauses 28.2 (a) and (b) provided as follows:

[44] The application sought to vary clauses 28.2(a) and (b) to take their current form. At the hearing of the application, Mr LeQuesne appeared for the applicants, and the application was supported by the major aged care employer associations in the other States (including the Aged & Community Services Association of NSW & ACT Inc). Vice President Watson, who heard the application, decided that it should be granted. In his decision 14, his Honour said:

[45] ANMF submitted that in the light of those two decisions it was not appropriate to further vary clause 28.2.

[46] AFEI submitted that the effect of the variation if granted was that it would be sufficient to work one weekday shift a week outside of ordinary hours for 34 weeks a year to qualify for the extra week’s annual leave entitlement, and therefore that the variation would have the likely effect of making a significant portion of employees eligible for the entitlement and thus potentially significantly increase the costs of employers in the industry. 15

[47] The Deputy President’s reasons for rejecting the claimed variation were as follows:

[48] The appellants’ grounds of appeal as to the rejection of this were:

[49] The appellants did not elaborate upon these appeal grounds in its submissions in any substantial way. The argument in their written submissions was as follows:

[50] The appellants did not add anything to the above in their oral appeal submissions, but simply relied upon their written submissions.

[51] We do not consider that the appellants have demonstrated any error in that part of the Decision concerning the third variation sought by ACS. Clause 28.2 in its current form was the result of a determination made by Vice President Watson in 2010 to vary the Award 16 to remove ambiguity and correct error. In making that determination, his Honour was granting an application made by South Australian aged care employers and supported by the major aged care employer associations in the other States. In his decision17 Vice President Watson correctly identified the principal criterion for the formulation of the definition of shiftworker for the purpose of the additional week’s annual leave entitlement as being “the qualifying provisions of pre-existing award instruments”. In those circumstances, ACS needed to demonstrate to the Deputy President, firstly, that there were cogent reasons as to why the clause which substantially the same interests had advanced and obtained in 2010 to remove ambiguity and correct error was now said to be ambiguous and uncertain, and, secondly, that the new clause which was proposed was founded upon the qualifying provision in the award instruments which pre-existed the making of the Award.

[52] The slender evidentiary case brought by ACS to support its proposed variation did not in any real way address those matters. Contrary to the appellants’ submissions, we consider that the Deputy President was correct in finding that the ACS evidence, which we have earlier summarised, did not identify any real difficulty in the provision of advice to employers about the operation of the clause or any disputation about it. 18 Further, we consider that the Deputy President’s conclusion that there was insufficient evidence to support the variation was also correct.19 There was nothing put to the Deputy President to suggest that the proposed variation had any relationship to the qualifying provisions of the award instruments which pre-existed the making of the Award. There was no evidence about existing working practices in the aged care industry, including any identification of who currently received the extra week’s leave for working outside ordinary hours on weekdays. The AFEI analysis, which indicated that the variation would if granted have the effect of significantly expanding the proportion of employees who would be entitled to the extra week’s leave, was not responded to by ACS. We do not consider in the circumstances that it would have been open on ACS’s evidentiary case for its proposed variation to be made.

[53] For completeness, we also do not consider that the Deputy President’s reference to s.87(3) 20 constituted any appellable error. Section 87(3) of the Act contains the statutory qualification for the additional week’s leave under the NES for those employees who are award and agreement free. That statutory qualification uses the expression “regularly rostered”. That expression is not defined in the Act. We consider that the Deputy President’s reference to s.87(3) was a reasonable one insofar as the use of the expression “regularly rostered” in the Act itself tends to indicate that the expression is not inherently ambiguous, uncertain or confusing.

Conclusion

[54] The appellants have not demonstrated any arguable case of appellable error in the Decision. Accordingly we refuse permission to appeal.

140108_120928.jpg

VICE PRESIDENT

Appearances:

G. Boyce of counsel for Leading Age Services Australia NSW-ACT and others

W. Ash for United Voice

A. McCarthy for the Australian Nursing and Midwifery Federation

M. McLeay for the Health Services Union

Hearing details:

2013.

Sydney:

17 December.

 1   Aged & Community Services Australia; Aged & Community Services Association of NSW & ACT Inc; Aged & Community Services South Australia & Northern Territory Inc; Aged & Community Services Tasmania; Aged & Community Services Australia - Western Australia; Leading Age Services Australia; Leading Age Services Australia - NSW-ACT; Leading Age Services Australia - Queensland; Leading Age Services Australia - South Australia; Leading Age Services Australia - Tasmania; Leading Age Services Australia - Victoria; Leading Age Services Australia - Western Australia.

 2   [2013] FWC 5696

 3   [2009] AIRCFB 345, (2009) 181 IR 19

 4   Decision at [21]

 5   PR986359 (3 April 2009)

 6   [2010] FWAFB 2026

 7   [2008] AIRCFB 1198

 8   [2012] FWA 9420

 9   United Voice written submissions, paragraph 12, Appeal Book p.150

 10   Transcript PNs 138-154

 11   ACS written submissions, paragraphs 14-15 at Appeal Book pp.69-70

 12   Witness statement of Richard LeQuesne, 7 February 2013, paragraph 16 at Appeal Book p.72

 13  [2010] FWAFB 2026 at [82]-[83]

 14   [2010] FWA 3725

 15   AFEI written submissions paragraphs 8-9, Appeal Book p.138.

 16   PR997021

 17   [2010] FWA 3725 at [4]

 18   Decision at [36]

 19   Decision at [38]

 20   Decision at [37]

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