s.739 - Dispute resolution

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

[1] On 6 August 2025, the Australian Nursing and Midwifery Federation (the Applicant / the ANMF) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute arising under the BlueCare Nursing Employees Enterprise Agreement 2024 (the Agreement). UnitingCare Queensland Limited is the Respondent in the matter (UnitingCare / the Respondent).

[2] A conference was held between the parties to the dispute on 12 September 2025, which was unsuccessful in resolving the dispute. The matter was adjourned for a month to allow parties to continue discussions.

[3] The matter was listed for hearing on Tuesday, 9 December 2025.

[4] At the Hearing, the Applicant was represented by Ms Courtney Trevascus, Industrial Officer for the ANMF, and the Respondent was represented by Ms Andrea Farrell, Legal Counsel - Workforce Strategy.

• [5] The ANMF relied upon witness statements from Ms Trevascus,[1] Ms Catherine Redfern,[2] Assistant Nurse, and Ms Sharon Davey,[3] Assistant Nurse. Neither of these witnesses were required for cross examination and their statements were admitted into evidence.

• [6] The Respondent relied upon witness statements of Ms Donna Clift,[4] General Manager - Residential Services, and Ms Erica Tattersall,[5] Operations Manager - Brisbane South. Ms Tattersall was not required for cross examination. Ms Clift gave oral evidence in addition to her statement.

• [7] On 7 May 2024, Deputy President Colman approved the BlueCare Nursing Employees Enterprise Agreement 2024.[6]

• [8] The dispute before the Commission relates to Clause 6.2 of the Agreement, which outlines the base rates paid to Assistants in Nursing (AINs) under the Agreement in relation to the Aged Care Award 2010 (the Award).[7]

[9] Clause 6.2 of the Agreement reads as follows:

6.2.1 Base rates of pay in Schedule 1 for an Employee in an Assistant in Nursing (AIN) classification, are at least 5% above the base rate of pay to which the Employee would be entitled under the Award which covers the Employee, as varied from time, if that Award applied to the Employee."

[10] Under the Agreement, Schedule 3 contains the following classification descriptors for 3 levels of AINs:

An Employee at this level shall perform a range of tasks as delegated or assigned, including but not limited to the below duties, and shall have obtained proficiency necessary to perform work at this level.

An Employee at this level shall perform work at a level above that of an Assistant in Nursing Level 1 and shall have obtained proficiency and qualifications to perform work at this level. An Employee at this level, in addition to the duties, skills and qualifications noted above will also possess 12 calendar months of relevant industry experience.

Employees appointed to this level shall perform work at a level above that of an Assistant in Nursing Level 2 and shall have obtained proficiency and further qualifications to perform work at this level. An Employee at this level, in addition to the duties, skills and qualifications noted above will also possess and be able to demonstrate significant industry experience and possess additional qualifications and skills in a specialist area, including but not limited to quality and compliance, continence care, palliative care or workplace health and safety."

• [11] Following a Full Bench Determination on the Aged Care Award 2010,[8] Schedule B.2 of the Award was inserted as of 1 January 2025, and contains the following classification structure for employees working within the Aged Care Employees - Direct Care (ACE-DC):

"B.2.1 Aged care employee - direct care - level 1 - Introductory

An employee whose primary role is to provide direct care to residents and who has less than 3 months' aged carer experience.

B.2.2 Aged care employee - direct care - level 2 - Direct Carer

An employee whose primary role is to provide direct care to residents and who has 3 months' or more aged carer experience

B.2.3 Aged care employee - direct care - level 3 - Qualified

An employee whose primary role is to provide direct care to residents and who has obtained a Certificate III in Individual Support (Ageing) or equivalent qualification.

B.2.4 Aged care employee - direct care - level 4 - Senior

An employee whose primary role is to provide direct care to residents and who has obtained a Certificate III in Individual Support (Ageing) or equivalent qualification and has obtained 4 years' experience classified at level 3 after 1 January 2025.

B.2.5 Aged care employee - direct care - level 5 - Specialist

An employee whose primary role is to provide direct care to residents and who has obtained a Certificate IV in Ageing Support or equivalent qualification as a requirement for the performance of their duties by the employer.

B.2.6 Aged care employee - direct care - level 6 - Team Leader

A direct care employee who has obtained a Certificate IV in Ageing Support or equivalent qualification as a requirement for the performance of their duties by the employer and is required to supervise and train other direct care employees."

• [12] The Applicant initially proposed the following question for arbitration:[9]

"What is/are the correct base rate/s of pay for employees covered by the BlueCareNursing Employees Enterprise Agreement 2024 classified as Assistant in Nursing Level 3.1?"

• [13] The Respondent proposed the following question for arbitration:[10]

"What base rate of pay is an Assistant in Nursing Level 3.1 classified employee entitled to under clause 6.2.1 of the BlueCare Nursing Employees Enterprise Agreement 2024?"

• [14] In their reply submissions, the ANMF contended that the Respondent's proposed question is inappropriate for two reasons.[11] The first reason being that the Respondent's question related to the interpretation of Clause 6.2.1 as opposed to the Agreement as a whole, including Clause 6.1.1 and Schedule 1.[12] The second reason being that the proposed question does not account for the possibility that the base rate of pay for the 20 AINs employed at Level 3.1 may not be uniform.[13]

• [15] The Applicant then proposed a revised question as follows: [14]

"What is the correct base rate of pay for an employee classified as Assistant in Nursing Level 3.1 under the BlueCare Nursing Employees Enterprise Agreement 2024 who:

(a) holds a Certificate IV in Ageing Support or equivalent qualification.

(b) does not hold a Certificate IV in Ageing Support but has completed the Certificate IV unit of competency 'Administer and Monitor Medications' (HLTHPF007) and/or 'Provide Support to People Living with Dementia' (CHCAGE005) and/or 'Deliver Care Services Using a Palliative Approach' (CHCPAL003).

(c) does not hold a Certificate IV in Ageing Support (or equivalent qualification) and has not completed any of the Certificate IV units of competency listed at (b)."

[16] After the conclusion of the hearing the parties were provided an opportunity to put on an additional submission for reasons that we will be addressed below. In this submission the ANMF proposed that the question for arbitration should be:

"What base rate of pay is an Assistant in Nursing Level 3.1 classified employee entitled to under the BlueCare Nursing Employees Enterprise Agreement 2024?"

• [17] Ms Redfern provided evidence that she worked for UnitingCare for approximately 25 years and has a Certificate III in Residential Aged Care.[15] She also provided evidence stating that Ms Tattersall approached her on four occasions seeking interest as to whether she would "step up" and become a Safety Coach. On the fifth occasion in approximately October 2018, Ms Redfern agreed to become a Safety Coach.[16] After becoming a Safety Coach, Ms Redfern progressed from Level 2 to Level 3. [17]

• [18] Ms Redfern stated that her role as safety coach involved training from the Head of Safety, where, as Safety Coach, she performed the following tasks and responsibilities:[18]

• ran the training for staff and students in infection control and manual handling,
• trained in risk management, fire safety, audits and the sling register,
• assist [the Head of Safety] with audits and inspections,
• would sit in on team leader meetings,

• [19] Ms Redfern also stated that she completed a Health and Safety Representative 5-day Training Course in November 2024. Additionally, the Respondent asked AINs at the Brassal Village site to express interest in a course titled "Provide support to people living with dementia", which was a Certificate IV Competency. Ms Redfern completed this course and the Respondent paid for the course and provided paid leave for this to be attained.[19]

• [20] Ms Davey provided evidence that she has worked for UnitingCare for approximately 15 years and has attained a Certificate III in Care of Aged Persons (Residential Care) dated 1 June 1999, and a Certificate IV in Ageing Support, dated 13 March 2019. Ms Davey stated that she was appointed to a Level 3 classification approximately 1 year after she obtained her Certificate IV qualification, being on or around June 2020.[20]

• [21] Ms Tattersall, Operations Manager for the Respondent, stated that AIN employees "generally hold a Certificate III qualification to do their role. They are not required to hold a Certificate IV qualification, though some of them like to."[21] Additionally, Ms Tattersall stated that Ms Redfern's role as a Safety Coach involves training in UnitingCare Queensland's existing policies and procedures about safety and that no special skills or qualifications were required. Ms Tattersall also provided evidence that the dementia training referred to by Ms Redfern is offered to all employees, is not mandatory and is more so a 'refresher' course.[22]

• [22] Ms Clift, General Manager - Residential Services, provided evidence that AINs are not required to hold any qualifications to undertake their role. However, the Respondent prefers that AINs hold a Certificate III in Individual Support or equivalent.[23] Ms Clift stated that all Level 3.1 AINs hold a Certificate III qualification and some of them hold a Certificate IV qualification. Ms Clift continued and stated that, to the best of her knowledge, the organisation has never imposed any requirement for AINs to hold a Certificate IV qualification to do their job.[24]

[23] Ms Clift was asked about her evidence at paragraph [6] of her statement, and her evidence that AINs are not required to hold any qualifications to undertake their role. Ms Clift was taken to the classification descriptors in the Agreement and accepted that the Agreement referred to a Certificate III qualification at Level 2. Ms Cliff accepted under the Agreement a Certificate III was a requirement.

[24] Ms Cliff was referred to the language in Level 3 of the Agreement referring to having further industry experience, additional qualifications, and skills in a specialist area. Ms Cliff agreed these were additional requirements for Level 3 under the Agreement.

[25] Ms Cliff was asked if her evidence that AINs not being required to hold any qualifications pertained to Level 1 under the Agreement. Ms Cliff said that her statement was in reference to the AIN cohort currently employed by the Respondent, that have been long serving and may not have been required to have a Certificate III at the time of their employment.

[26] Ms Cliff said under the Agreement employees would be required to have a Certificate III if they were being employed at this point in time. Ms Cliff agreed that there were currently 20 AINs working at Agreement Level 3.1.

[27] The ANMF submits that the position of AIN Level 3.1 should be classified with regards to the Award as ACE-DC Level 5 - Specialist.

• [28] The Applicant submits that the requirements of the Level 3.1 AIN role in Schedule 3 of the Agreement are as follows: [25]

• qualifications in a specialist area, as well as the Certificate III required for Level 2 AIN, and
• further proficiency above that of a Level 2 AIN, and
• additional skills in a specialist area, and
• significant industry experience

[29] The Applicant contends that these requirements mean that the most appropriate classification for an AIN Level 3.1 would be equivalent to the Aged Care employee - direct care - Level 5 - Specialist classification under the award for three reasons.

• [30] The ANMF submits Level 3 AINs are required to have a speciality. The Applicant submits that Ms Redfern and Ms Davey were appointed to Level 3 AIN due to their specialist qualifications in workplace health and safety, and palliative care and quality and compliance respectively. The Applicant further submits that ACE-DC Level 5 - Specialist is the only Award classification level that contemplates duties, knowledge, and skills in a specialist area.[26]

• [31] The second is that Level 3 AINs are required to have a higher qualification beyond the Certificate III required at Level 2 AIN. The Applicant submits that ACE-DC Level 5 - Specialist is the only non-team leader Award classification that requires a higher qualification than a Certificate III.[27]

• [32] The final reason proffered by the Applicant is that Level 3 AINs are required to perform work "at a level above" Level 2 AINs under Schedule 3 of the Agreement. The Applicant elaborated that Level 2 AIN is the standard classification under the Agreement for employees with a Certificate III level qualification. Its equivalent classification under the Award is ACE-DC Level 3 - Qualified. Due to the higher level of work than the standard Certificate III level, the Applicant submits that they should be classified higher than the standard Certificate III level.[28]

• [33] The Respondent contends that a Level 3 AIN should be classified as equivalent to the ACE-DC - Level 3 - Qualified under the Award.[29] The Respondent emphasised that under the classification of ACE-DC - Level 5 - Specialist, the qualification of Certificate IV in Ageing Support or equivalent must be a requirement of the performance of their duties by the employer. The Respondent submits that the Commission intentionally adopted the classification structure which progressed to ACE-DC - Level 5 - Specialist as operating when an employer required an employee to hold the higher qualifications to perform their role. [30]

• [34] The Respondent submits that the ACE-DC classification stream is based on qualifications, rather than duties, knowledge and skills in a specialist area. The Respondent further submits that there are no operational requirements for Level 3.1 AINs to hold a Certificate IV in Ageing Support or equivalent to perform their duties. Due to the absence of operational requirements, the Respondent contends that the most appropriate classification would be ACE-DC - Level 3 - Qualified.[31]

• [35] In their reply submissions, the Applicant contends that the Respondent's characterisation of the evidence ignores Schedule 3 of the Agreement and the Level 3 AIN requirements of "significant industry experience", "additional qualifications", "further qualifications" and "skills in a specialist area". [32]

• [36] The Applicant also refers to the Respondent's citation of the Full Bench Work Value Case - Aged Care Industry[33] at paragraph [195]. The ANMF contends that the Respondent's proposition that AINs with one of the stated competencies would only progress to ACE-DC Level 4 after they obtain 4 years' experience after 1 January 2025 is misguided. This is because an employee at ACE-DC Level 3 who obtains 4 years' experience after 1 January 2025 would progress to Level 4, regardless of whether they have completed one of the stated Certificate IV competencies. [34]

[37] The ANMF submits that it interprets paragraph [195] of the Full Bench Work Value Case decision to mean that an employee who does not have a Certificate IV, but does have one of the stated competencies 'Administer and Monitor Medications' (HLTHPF007) , and/or 'Provide Support to People Living with Dementia' (CHCAGE005), and/or 'Deliver Care Services Using a Palliative Approach' (CHCPAL003), will be classified at Level 4 if they have four years of post-qualification industry experience, regardless of when the work was completed.

• [38] Finally, the ANMF submits that the fifteen Level 3.1 AINs without a Certificate IV qualification should also be classified at ACE-DC Level 5.[35] The ANMF accepted that the Respondent did not explicitly require a Certificate IV qualification, but the Respondent does require further qualifications, and the Certificate IV was recognised as meeting that threshold.

[39] During closing submissions in response to a question from me about the formulation of the question for arbitration the ANMF submitted that all of the AINs are doing the same role, and although the qualifications may differ, they have all been recognised by the Respondent as having qualifications sufficient to be classified as Level 3 under the Agreement and therefore, all 20 should be aligned to ACE-DC Level 5.

[40] The Respondent submitted in closing only 2 of the 20 AINs in the cohort of AINs at Level 3 under the Agreement hold a Certificate IV in Ageing Services, and the balance hold different qualifications. The Respondent submitted that under the Agreement its obligation is to pay a base of rate of pay at least 5% above the base rate they would receive under the Award if the Award applied. The Respondent submitted that progression under the Award is based on particular types of experience or the acquisition of qualifications in compliance with the employers' operational requirements.

[41] The Respondent submitted that it is what the employees do that is relevant. The Respondent submitted it is paying Level 3.1 AINs in compliance with the Agreement for three reasons. Firstly, the Full Bench made it clear that the ACE-DC classification structure is qualification based, and this requirement cannot be satisfied with equivalent knowledge and skills referring to paragraphs [24] and [25] as follows:

"[24] The HSU proposes that the descriptors for those direct care work classifications which contain a qualification requirement be amended to add the words 'or possesses equivalent knowledge and skills'. The effect of this change would be, in substance, to vitiate the qualification requirement by allowing an equivalency assessment by some indeterminable means.

[25] We reject this proposal. Our intention was to create a clear and contemporary classification structure under which progression is, to a substantial degree, based on the acquisition of qualifications in accordance with the operational requirements of the employer. For each such classification descriptor, the draft determination specifies a qualification but allows for an equivalent qualification. The Australian Qualifications Framework allows for recognition of prior learning in the acquisition of qualifications, but it remains the case that the qualification is still required. The HSU's proposal would confuse the design of the classification structure by allowing progression without the requisite qualifications. This is liable to cause doubt and disputation since there is no identified means by which 'equivalent knowledge and skills' can objectively be determined..."

[42] The Respondent submitted it has never been a requirement of the Respondent for AINs to hold a Certificate IV in Ageing Services. The Respondent submitted with respect to the AINs who hold a unit of competency but not a Certificate IV, the Full Bench said in its decision of 15 March 2024 at paragraphs [195] and [196]:

"[195] In the above classification structure, Level 1 is an entry-level classification. Level 2 applies to direct care employees who have no AQF qualification relevant to aged care. Level 3 is, as earlier discussed, the benchmark classification for Certificate III-qualified employees. Level 4 applies to Certificate III-qualified employees who have at least four years of post-qualification industry experience. This recognises that such a period of industry experience carries with it an enhancement in work value through the on-the-job acquisition of additional skills, experience, responsibilities and judgment. Level 5 applies to employees who, as a requirement for the performance of their duties by the employer, have acquired the Certificate IV qualification which, the evidence indicates, is increasingly desired and needed by aged care employers. Level 6 is a supervisory classification. Under the above classification structure, an employee who has not completed a Certificate IV qualification but has completed the Certificate IV unit of competency 'Administer and Monitor Medications' (HLTHPF007) and/or 'Provide Support to People Living with Dementia' (CHCAGE005) and/or 'Deliver Care Services Using a Palliative Approach' (CHCPAL003), or equivalents, shall be classified at Level 3 or Level 4 dependent upon years of industry experience.

[196] The relativities between classifications have been designed to properly reflect the acquisition of additional skills and responsibilities rather than to attempt (as the HSU's proposal did) to ensure a minimum, uniform pay increase for employees at each existing pay level. We will establish special arrangements in the Aged Care Award for the translation of existing employees to the new classification structure. These translation arrangements will, in particular, provide that:

(1) For the purpose of the new Level 4 classification, the requirement for four years post-qualification industry experience applies only to industry experience acquired after the operative date of the variations to be made to the Aged Care Award. This means that Certificate III-qualified employees currently at Level 4 will translate to the new Level 3 even if they currently have more than four years' post-qualification industry experience.

(2) However, any employee currently classified at Level 5 who does not have a Certificate IV qualification will translate to Level 4, even if they do not have four years' post-qualification industry experience."

[43] The Respondent submitted that for the remainder of the cohort they are also appropriately classified at ACE-DC - Level 3 because they perform direct care work, and they hold a Certificate III.

[44] After the conclusion of the hearing the ANMF wrote to my chambers advising that it withdrew the new alternative argument regarding the Award classification of Level 3 AINs who do not hold a Certificate IV qualification raised during the hearing, however continued to rely on the primary and alternative arguments as set out in the ANMF's written submissions.

[45] On 22 January 2026 the ANMF sought to be given the opportunity to make a further submission in the matter following the release of the Full Bench's decision in United Workers' Union v Thrive Group Tasmania Inc [2026] FWCFB 7 (Thrive) which was a decision dealing with the correct alignment of an enterprise agreement classification against those in the underpinning award.

[46] The ANMF submitted that the Respondent has invited the Commission to make a finding of fact about the 'operational requirements' of the organisation regarding the qualification level of Level 3 AINs, when the Agreement unambiguously states that a Level 3 AIN will "possess additional qualifications and skills in a specialist area".

[47] The ANMF submitted any findings of fact related to the operational requirements of the Respondent must not be used to displace the requirement set out in the Agreement as was determined in Thrive. The ANMF contrasted the language in the Agreement at Level 3 with the language at ACE-DC Level 3 and 5 to supports its contention that Level 3 under the Agreement requires a specialty, a higher qualification, and to perform work above Level 2 in the Agreement. The ANMF further submitted the classification titles in the Award, the structure of classifications and history of classifications support its contention that the Level 3 Agreement descriptor falls substantially within the scope of Award classification ACE-DC Level 5.

[48] The Respondent's further submission argued that the "Specialist" referred to in the classification structure of the ACE-DC was clearly intended to refer to specialist qualifications (being a Certificate IV in Ageing Services or equivalent), not specialist skills. The Respondent submitted that duties, skills, and responsibilities have no impact on progression within the ACE-DC classification stream because the skills, duties, and responsibilities of ACE-DC Level 3 and ACE-DC Level 5 are the same.

[49] The Respondent submitted that to give effect to the Full Bench's decision in the Stage 3 Aged Care Work Value Case there must be a precise match between the qualifications in the Aged Care Award and the Agreement. Further, that findings of fact about the work performed are relevant to whether there was an operational requirement for Level 3.1 classified AINs to hold a particular qualification.

[50] The ANMF submits that the 5 Level 3.1 AINs with a Certificate IV qualification should be classified with respect to ACE-DC Level 5, and the 15 Level 3.1 AINs without a Certificate IV qualification should also be classified with respect to ACE-DC Level 5.

[51] The Respondent submits that there are no operational requirements for Level 3.1 AINs to hold a Certificate IV in Ageing Support or equivalent to perform their duties. Due to the absence of operational requirements, the Respondent contends that the most appropriate classification would be ACE-DC - Level 3 - Qualified.

[52] I accept the submission that the Commission adopted the classification structure which provides for progression to ACE-DC - Level 5 - Specialist on the basis that the employer required an employee to hold the higher qualifications to perform their role.

[53] The ANMF refers to Level 3 of the Agreement requiring a speciality, a higher qualification beyond the Certificate III, and that Level 3 AINs are required to perform work "at a level above" Level 2 AINs under Schedule 3. The ANMF submits that the Commission must assess the "most appropriate" classification in relation to the Award.

[54] The Award classifications for ACE-DC Level 3 and Level 5 are as follows:

Level 3 - Qualified: An employee whose primary role is to provide direct care

to residents and who has obtained a Certificate III in Individual Support

Level 5 - Specialist: An employee whose primary role is to provide direct care

to residents and who has obtained a Certificate IV in Ageing Support or

equivalent qualification as a requirement for the performance of their duties

[55] The ANMF's primary position is that Level 5 under the Award is the "more appropriate" because Level 3 Agreement employees must have a speciality, are required to have a higher qualification, and to perform work at a level above Level 2. The ANMF said there is no question that the employees are correctly classified as Level 3 under the Agreement. The ANMF describes the Level 3 role under the Agreement as akin to a specialist role, just as Level 5 under the Award is a specialist position.

[56] I have considered the evidence before the Commission and have determined based on the evidence of the two Senior Managers for the Respondent that it is not an operational requirement of the Respondent for Level 3.1 AINs to hold a Certificate IV in Ageing Support or equivalent to perform their duties.

[57] I agree with the Respondent's submissions that this evidence is relevant to the task of interpreting and applying the Agreement, given doing so is contingent on determining the most appropriate Award classification that corresponds to the Agreement classification.

[58] As the Certificate IV is not an operational requirement of the Respondent, the AINs that hold that qualification and are employed at Level 3 under the Agreement would not be otherwise classified at Level 5 under the Award.

[59] AINs that do not hold a Certificate IV in Ageing Support, but have completed the Certificate IV unit of competency 'Administer and Monitor Medications' (HLTHPF007) and/or 'Provide Support to People Living with Dementia' (CHCAGE005) and/or 'Deliver Care Services Using a Palliative Approach' (CHCPAL003), also do not meet the qualification requirements aligned with ACE-DC Level 5.

[60] The Agreement, at Clause 6.2.1 and Schedule 1, provides for the rates of pay to be at a minimum of 5% above the relevant Award rate at all times. Therefore, while the dispute on its face relates to the rates of pay in the Agreement, in substance, it is to determine the classification that an AIN Level 3.1 would receive under the Aged Care Award 2010.

[61] For this reason, I am satisfied that it is appropriate to adopt the following question for arbitration:

"What base rate of pay is an Assistant in Nursing Level 3.1 classified employee entitled to under the BlueCare Nursing Employees Enterprise Agreement 2024?"

[62] The answer to the question for arbitration is that employees classified at Level 3.1 under the Agreement align with ACE - DC Level 3 under the Aged Care Award for the purposes of applying Clause 6.2.1 and Schedule 1 of the Agreement.

[7] MA000018.

[8] PR779150https://www.fwc.gov.au/documents/awardsandorders/pdf/pr779150.pdf.

[33] [2024] FWCFB 150.

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