In Health Services Union v Catering Industries (NSW) Pty Ltd [2023] FCAFC 82 (29 May 2023), the Full Court of the Federal Court (Katzmann, Snaden and Raper JJ) dismissed an appeal against a decision that catering employees working at an aged care facility were covered by the Hospitality Industry (General) Award 2020 (hospitality award) (at [6]-[7]).
In doing so, the court held that s48 of the Fair Work Act 2009 (Cth) (FW Act) operates so that the question of whether a modern award covers an employee is a question that falls to be determined by reference to the terms of the relevant modern award, not by reading modern awards together (at [46]).
The residential aged care facility in question is operated by Heritage Care Pty Ltd (at [8]). Heritage and the respondent (Catering Industries) entered into an arrangement where Catering Industries would provide catering and other services at the residential aged care facility (at [12]).
Catering Industries and the appellant (the HSU) were engaged in bargaining for an enterprise agreement under Pt 2-4 of the FW Act (at [4]).
Catering Industries engaged catering employees at the residential aged care facility in Sydney (at [4]). Catering Industries maintained that the catering employees were covered by the hospitality award. The HSU maintained that the catering employees were covered by the Aged Care Award 2010 (aged care award) (at [5]).
In relation to the aged care award, the decision focused on (among other things) cl 4.1, which states: “[t]his 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” (at [23]); and the definition of ‘aged care industry’ in cl 3.1, which includes: “… the provision of accommodation and care services for aged care persons in a hostel, nursing home, aged care independent living units, aged care services apartments, garden settlement, retirement village or any other residential accommodation facility” (at [24]).
In relation to the hospitality award, the decision focused on (among other things) the following parts of cl 4:
“4. Coverage … 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 …
4.4 However, this industry award does not cover any of the following: … (d) employers in the following industries or their employees: … (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) [emphasis removed]” (at [26]).
In the primary judgment, his Honour determined that the coverage of the hospitality award included caterers that provide catering services for, or within, an aged care facility. His Honour further held that the following text in cl 4.4(d)(xi) of the hospitality award: “(except where these services are provided for or within an aged care facility by employers otherwise covered by this award)” meant that the hospitality award covered – and the aged care award did not cover – the provision of catering services by Catering Industries (at [30]).
On appeal, it was held that the operation of s48 of the FW Act means that the question of whether the aged care award covers the catering employees is a question that falls to be determined by reference to the terms of the aged care award, as opposed to any other instrument.
The court did not accept that “coverage should be determined by reading modern awards together” (at [46]) and held that the primary judge had erred by concluding that cl 4.4(d)(xi) of the hospitality award operated to exclude coverage of the aged care award (at [49]).
The task of the Full Court of the Federal Court was to discern the meaning of the words in cl 4.1 of the aged care award, considering the context and purpose of those words (at [57]).
In particular, the court highlighted that its task was to consider whether catering industries was “in” the aged care industry. The court stated that, if the coverage provisions of the aged care award were expressed more broadly, namely to include coverage of employers that operate “in or in connection with” the aged care industry, then the outcome of the decision may change (at [93]).
The decision highlighted the difference “between being in an industry and providing services to an industry”. The court accepted that Catering Industries primarily provided services to the aged care industry at the time of hearing (at [92]). The court was also prepared to accept that the manner in which Catering Services provided food services at the residential aged care facility “should be understood as essential to and an integral component of the accommodation and care of … residents” (at [87]).
Despite this, the court did not accept that Catering Industries was in the service of the aged care industry, including because Catering Industries serviced clients in various industries and because the Catering Employees moved between client sites across these various industries (at [92]).
Catering Industries is not an employer in the aged care industry. The aged care award does not cover Catering Industries or the catering employees (at [94]).
Nadia Stojanova is a barrister at the Victorian Bar, ph 0480 254 662 or email nadia.stojanova@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.
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