Federal Court of Australia
Federal Court of Australia
Health Services Union v Catering Industries (NSW) Pty Ltd [2023] FCAFC 82 Appeal from: Health Services Union v Catering Industries (NSW) Pty Ltd [2022] FCA 754
File number: NSD 511 of 2022
Judgment of: KATZMANN, SNADEN AND RAPER JJ
Date of judgment: 29 May 2023
Catchwords: INDUSTRIAL LAW – appeal from decision of the Federal Court of Australia – whether employer covered by the Aged Care Award 2010 or Hospitality Industry General Award 2020 – declaratory relief sought – jurisdiction to grant declaratory relief – appropriateness of classifications under respective awards – where employer provides catering services to residential aged care facility – where parties engaged in bargaining for an enterprise agreement to be made under the Fair Work Act 2009 (Cth) – where dispute in relation to award coverage underscores application of "better off overall test" under that enactment – construction of coverage provisions in modern awards – meaning of employer "in the aged care industry"
Legislation: Aged Care Quality and Safety Commission Act 2018 (Cth) Fair Work (Registered Organisations) Act 2009 (Cth) Fair Work Act 2009 (Cth) pt 2-1, 2-3, 2-4, 2-8, ss 47, 48, 49, 52, 54, 57, 58, 143, 186, 193, 240, 562, 570 Federal Court of Australia Act 1976 (Cth) s 21 Workplace Relations Act 1996 (Cth) s 576C (repealed) Aged Care Quality and Safety Commission Rules 2018 (Cth) Aged Care Award 2010 cl 3, 4 Hospitality Industry General Award 2020 cl 4
Cases cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 BioGiene Pty Ltd v Mullan [2022] FCAFC 73 Bis Industries Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374 Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [2008] NSWCA 348 Coal Mining Industry (Long Service Leave Funding) Corporation v Hitachi Construction Machinery (Australia) Pty Ltd [2023] FCA 68 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Edwards v Santos Ltd (2011) 242 CLR 241 Health Services Union v Catering Industries (NSW) Pty Ltd [2022] FCA 754 Ibeneweka v Egbuna [1964] 1 WLR 219 Kuypers v Ashton Coal Operations Pty Ltd [2014] NSWSC 1276 Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2016) 270 FCR 513 R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123 R v Drake-Brockman; Ex parte National Oil Pty Ltd (1943) 68 CLR 51 R v Hibble; Ex parte Broken Hill Pty Co Ltd (1921) 29 CLR 290 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 R v Isaac; Ex parte Argyle Diamond Mines Pty Ltd (1985) 159 CLR 323 R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470 Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Australian Workers' Union (1976) 51 ALJR 266 Re Request from the Minister for Employment and Workplace Relations (2008) 177 IR 364 Sankey v Whitlam (1978) 142 CLR 1 Telstra Co Ltd v Australian Telecommunications Authority (1995) 133 ALR 417, 426-427 Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591
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