Coverage of the Aged Care Award
52 As has already been noted, the Aged Care Award is expressed to cover "…employers throughout Australia in the aged care industry and their employees in the classifications listed [later]". "[A]ged care industry" is defined to mean "…the provision of accommodation and care services for aged persons…"
53 The HSU contends that Catering Industries is an employer in the aged care industry because the services that it is contracted to provide are provided in connection with the provision of accommodation and care services to residents of the Heritage Botany facility. It maintains that those services are central to or linked inextricably with resident care.
54 Catering Industries maintains that it is not an employer in the aged care industry because it is not concerned with the provision of accommodation and care services. Instead, it submits, it is concerned (relevantly for present purposes) only with the provision of contract catering services, which qualify as neither accommodation nor care.
55 In order that the Aged Care Award might cover the Catering Employees, Catering Industries must first be understood to qualify as an employer in the aged care industry. More accurately, it must qualify as an employer that falls within what the proper construction of cl 4.1 of the Aged Care Award contemplates.
56 In BioGiene Pty Ltd v Mullan [2022] FCAFC 73 ("BioGiene"), Charlesworth and Snaden JJ had occasion to consider how the court might construe the phrase "employers…in the meat industry". Their Honours observed (at [26]; O'Callaghan J agreeing at [62]):
The precise limits of the phrase "employers…in the meat industry" in cl 4.1 of the MIA turns upon an orthodox process of construction. The principles that the court should apply in that endeavour are well known and were not in contest. When construing the terms of a modern award, the court looks to divine and give effect to the meaning that their authors intended them to convey: Kucks v CSR Ltd (1996) 66 IR 182, 184 (Madgwick J). The terms in which an award is framed are to be understood under the light of their context and purpose: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, 246 [2] (Gleeson CJ and McHugh J). They must not be construed in a vacuum, divorced from industrial realities: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426, 440 [57] (French J).
57 Those observations apply with equal force presently and there was no obvious controversy between the parties as to the principles that the Court must apply in construing cl 4.1 of the Aged Care Award. The court's task is to discern the meaning of the words that cl 4.1 of the Aged Care Award employs, bearing in mind the context in which they appear and the purpose (or purposes) that they are intended to serve: Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449 at 455 [22] (Siopis, Buchanan and Flick JJ).
58 To return to the question for immediate consideration: is Catering Industries an employer of the kind to which cl 4.1 of the Aged Care Award, properly construed, refers; that is to say, an employer in the aged care industry?
59 In Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [2008] NSWCA 348 (Allsop P, Giles and Bell JJA) ("Central West"), the New South Wales Court of Appeal was called upon to determine whether a business that provided workers and apprentices to other businesses was an "employer[ ] in the coal industry" insofar as concerned one such apprentice who was seconded to work at a coal mine. Resolution of that question would serve to resolve a more immediate controversy concerning an insurance payment. Allsop P (with whom Giles and Bell JJA agreed) explained the court's task as follows (at [37]):
…[T]he task is to give context to the phrase "employers in the coal industry". It is not the employee that is to work in the industry, but the employer must be "in" the industry. The employer is a person or entity. It must employ a worker or workers to be an employer, but it, as a person or entity, must be "in" the coal industry. This can be seen to involve at least two enquiries: first the nature and limits of the term "coal industry"; and, secondly, the relationship between the employer and the coal industry such that it can be said that the former is "in" the latter.
60 After considering a series of industrial demarcation cases (to some of which we shall turn shortly), his Honour concluded (at [50]-[52]):
…[T]he phrase "employer in the coal industry" requires a substantive connection between the entity and the coal industry to satisfy the relationship required by the preposition "in", beyond merely being the employer of a person who works in and about a mine.
…[The first respondent] submitted that what was required was the satisfaction, from an assessment of the substantial character of the employer and its business, that it was "in" the coal industry. I agree with that approach. It accords with the notion of the employer, as an entity, being in the industry…
Ultimately, the question is to be resolved textually and whether or not an entity is an employer in the coal industry will be a question of fact undertaken by reference to an assessment of the company's character and business...
61 The reference in cl 4.1 of the Aged Care Award to "employers…in the aged care industry" is properly to be construed in an equivalent way. It is a phrase that is apt to describe employers that operate businesses or undertakings the substantial character of which suffices to situate them "in" the aged care industry. Resolution of the central issue with which this appeal engages thus turns upon analyses of the essential elements that constitute the "aged care industry" (on the one hand) and of the nature of Catering Industries' undertaking (on the other).
62 There are limits to the assistance that this Court might gain from authorities that have considered similar, but not identical, questions in similar, but not identical, contexts. None of the authorities referred to in the analysis that follows considered the proper construction of the phrase "employers…in the aged care industry" in cl 4.1 of the Aged Care Award and none concerned a business identical to that which Catering Industries operates. Nonetheless, such authority as there is in other contexts is instructive and worthy of consideration: Central West at [38] (Allsop P, with whom Giles and Bell JJA agreed). It aids an understanding of when businesses might be thought to possess qualities that accumulate to a point sufficient to position them "in" (or not in) particular industries.
63 Before the advent of enterprise-level bargaining in the early 1990s (and mostly before the prices and incomes accord that preceded it), a great volume of industrial law jurisprudence - including much that found its way to the High Court - turned upon the existence of industrial disputes that extended beyond the limits of any one state. The existence of such a dispute was often the key that unlocked access to mechanisms - usually award-making processes - that were enshrined within federal legislation enacted pursuant to the conciliation and arbitration power for which s 51(xxxv) of the Commonwealth Constitution provides. Whether such a dispute existed in any given case often turned upon whether or not a union that alleged as much was competent to represent the industrial interests of the employees to whose employment the dispute was said to pertain. Invariably, that turned upon whether or not the employees or their employers were engaged in the industries or callings in respect of which the union's rules regulated eligibility for membership. It is in that context that the principles that emerge from that jurisprudence afford at least some guidance to the Court in the present case.
64 More than a century ago, in R v Hibble; Ex parte Broken Hill Pty Co Ltd (1921) 29 CLR 290, a question of the kind described above raised itself for the consideration of the High Court. There, the Australian Coal and Shale Employees' Federation (an ancestor of what is now the Construction, Forestry, Maritime, Mining and Energy Union) claimed to be party to an interstate industrial dispute pertaining to the employment of workmen who were engaged at an iron and steel manufacturing business. The workers in question were engaged in the conversion of coal into coke for smelting purposes. At issue was whether those workmen were engaged "in or in connection with the coal and shale industry". It was held unanimously that they were not. Higgins J (with whom the other members of the court agreed in the result) observed (at 302):
…when one speaks of "the coal and shale industry," as a single industry, the meaning is surely the industry of extracting coal and shale. Coke is not made from shale, but shale is frequently lying over beds of coal. If there is any "coal and shale industry," it must be in the process of extraction from the earth. It is not enough to show that coke is "connected with" coal, or jam with sugar; the employees must be engaged in the industry, or in connection with it (e.g., as surface-men or engineers in connection with coal mining, or as carpenters with jam factories).
65 In R v Drake-Brockman; Ex parte National Oil Pty Ltd (1943) 68 CLR 51, the High Court was concerned to determine whether the manufacturing (or extraction) of oil from shale was work that fell within the "coal-mining industry" (or, more specifically, whether a dispute as to the wages and conditions of those who performed work of that nature was a dispute that was "in the coal-mining industry"). Again (although this time by majority), the court concluded that it was not. Of relevance for present purposes were the following observations of Latham CJ (with whom Rich and Williams JJ agreed in the result) at 57:
A single employer may carry on two or more industries. The same man may be a farmer and a miller and a baker, but there is a distinction between the industry which produces wheat, the industry which produces flour, and the industry which produces bread. The applicant company in this case conducts two industries. One is an industry the product of which is shale, and the other is an industry the products of which are oil and petroleum coke.
The fact that two industries are carried on at the same place does not abolish the distinction between them. If a single company mined coal and then used the coal to manufacture gas in works alongside the mine, it would nevertheless still be the case that two industries were carried on by that company, one the mining of coal and the other the manufacture of gas. The manufacture of gas would not become "coal mining" because one company was engaged in both enterprises. Nor would the industry of gas manufacturing for that reason become a part of the industry of coal mining.
Accordingly, in my opinion, the employees engaged in what is described as the manufacturing section of the company's works are not engaged in the shale-mining industry and an industrial dispute with respect to their wages or conditions of labour is not an industrial dispute in that industry or a matter affecting industrial relations in that industry.
66 Two years later, in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, the High Court again considered the conceptual limits of "the coal mining industry". There, a regulatory authority had determined that a haulage contracting business was an employer in the coal mining industry because the overwhelming majority of its employees were engaged (most of them exclusively) to transport coal from a mine southwest of Sydney. The court concluded that neither the business nor its employees operated in the coal mining industry. Latham CJ (with whom the other members of the court agreed) observed (at 608-609):
The term "industry" is not a precise technical term. One industry sometimes overlaps into another industry. In my opinion, no absolute rule can be laid down for determining the limits of a particular industry. The question whether a particular industrial operation belongs to one industry rather than another cannot be decided merely by considering the nature of that operation itself…[A]ll the circumstances of each case must be taken into account…In the present case…the lorry drivers who carry coal are employed as lorry drivers generally, and not as carriers of coal, and they are not employed by the colliery proprietors. They are employed by persons who carry on the business of carriers, and who do not in any real sense belong to the coal mining industry. The fact that some lorry drivers belong to unions to which coal mining employees belong is a circumstance of little weight. Competition for members between unions is not unknown. The fact upon which the respondents rely is that the lorry drivers carry coal and carry it from a colliery. But lorry drivers employed by the prosecutors carry firewood, timber, blue metal and other materials. In my opinion, it would not be in accordance with the ordinary meaning of the term " industry " to say that the firm was therefore also engaged in the firewood industry, the timber industry, or the industry of producing blue metal, even if the carting were done from a forest, mill or a quarry. In my opinion, the whole of the evidence shows that the employers and employees concerned are not engaged in the coal mining industry…
67 In R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123 ("Theiss (Repairs) Pty Ltd"), the High Court considered whether an employer that ran a machinery workshop was one that operated (yet again) "in the coal mining industry". The business was situated proximate to a coal mine that a related company operated. The vast bulk (though not the entirety) of its work concerned the maintenance of machinery that was in use at the mine. The respondent authority was authorised to resolve industrial disputes "in the coal mining industry" and took the view that a dispute involving the employer fell within that description. The High Court disagreed. Again, Latham CJ (with whom a majority of the other members of the court agreed) took the view that the employer was an engineering (rather than coal mining) business. His Honour held (at 135):
Many industries supply goods to or provide services for other industries. A motor garage may be almost exclusively engaged in repairing trucks for a transport company, and it may do such work under a contract under which it is entitled to obtain and bound to do all the transport company's work. But it would not follow that the motor garage was in the transport industry. Similarly, an engineering workshop which does all the repairs for a coal mine and a gold mine and a shipping company would not, according to the ordinary use of language, be said to be engaged in the coal-mining industry, the gold-mining industry and the shipping industry. There would be as much reason for saying that it was engaged in any one of them as for saying that it was engaged in any other of them. There are obvious difficulties in saying that it is at one and the same time in each of these industries and in the engineering industry as well. Thus the fact that an enterprise provides a service for a particular industry cannot be held to identify that enterprise with that industry so as to make it a part of the industry.
In my opinion the question to be asked is - What is the substantial character of the industrial enterprise in which the employer and employee are concerned? In the present case the employer is Thiess (Repairs) Pty Ltd. That employer is not engaged in coal-mining, but is an engineering company carrying on general work. It is not under the control of the mine owner, or even of the contacting party (Thiess Bros Pty Ltd), which actually conducts the mining operations. But the more important fact is that its operations are separate from and different in kind from the operations carried on at the open cut. It supplies certain needs of the coal-mining industry in the same way as do many other industrial enterprises. But these facts do not show that all such suppliers of goods or services to that industry are themselves engaged in that industry…
68 That reasoning was applied nearly three decades later - in a case that has obvious parallels to the present appeal - in Re Federated Liquor and Allied Industries Employees' Union of Australia; Ex parte Australian Workers' Union (1976) 51 ALJR 266 (the "Poon Bros Case"). There, it was held that the employees of contract caterers that, under contracts entered into with iron ore mining companies, performed catering, cleaning and laundry services at remote mining townships in the Pilbara region of Western Australia were not engaged "in or in connexion with…metalliferous mining". The townships in question had been established by the mining entities to accommodate workers who were engaged to work in nearby iron ore mines. The work under consideration was said to be "…so intimately related to the working of the mines that it was in fact work done in connexion with metalliferous mining".
69 Barwick CJ (with whom Gibbs, Stephen, Mason and Jacobs JJ agreed) observed (at 268-269):
The business of the respondent companies was quite distinct and separate from that of the mining companies engaged in metalliferous mining. True it is that the respondent companies served the mining companies and provided them with commodities and services the provision of which was desirable if not indeed necessary for the maintenance of the workforce to carry on the mining operations. But that does not mean that in contracting to provide and in providing these commodities and services the respondent companies entered into the business of the mining companies so as themselves to be carrying on metalliferous mining: nor were their employees employed in connexion with that industry. Their businesses remained distinct. Though serving the mining industry, the respondent companies did not carry on metalliferous mining or a business or industry in connexion with metalliferous mining. Although employees of the mining companies who provided food or services of the kind furnished by the respondent companies might have been held to be working in the industry of metalliferous mining, such work done by an independent contractor has a different nature or quality. It cannot be said to be done as an integral part of the metalliferous mining operation. Sir Owen Dixon in R. v. Central Reference Board; Ex parte Thiess (Repairs) Pty. Ltd. (1948), 77 C.L.R. 123 at p. 141, thought that the separateness of the establishments in point of control, organization, place, interest, personnel and equipment might furnish a relevant discrimen in deciding the question of fact. Sir John Latham in the same case, at p. 135, thought that the substantial character of the industrial enterprise in which the employer and employee were concerned was decisive of the question whether the employee was engaged in an
industry of given description. Here the substantial character of the industrial enterprise in which the respondent companies are engaged is that of catering and of providing cleaning, etc. services. That they should at a particular place perform such work exclusively for mining companies and under contract with them does not require or permit the conclusion that in doing so the respondent companies carry on an activity in or in connexion with metalliferous mining…
70 The Poon Bros Case was distinguished (including by Barwick CJ) in R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470 (the "Uranium Mining Case"). There, the Australian Conciliation and Arbitration Commission (a predecessor to the FWC) had concluded that a dispute between the Australian Workers' Union (on the one hand) and engineering businesses that had been engaged by mining companies to design and supervise the construction of various parts of new mining sites in the Northern Territory (on the other) was one that it had jurisdiction to resolve by conciliation and arbitration. A rival union sought to overturn that finding on the basis that the employees in question were not eligible for AWU membership. As in the Poon Bros Case, that turned upon whether or not the employees in question were employed "in or in connexion with…metalliferous mining".
71 The High Court held unanimously that they were. The ratio underpinning that conclusion is not easily discerned. Jacobs J (with whom Stephen J agreed) drew a distinction (at 477) between employees who were engaged "in" metalliferous mining and employees who were engaged "in connexion [there]with". His Honour concluded (at 477):
Construction work cannot be looked at apart from what is being constructed. The connexion is so close as to be inseparable. The mine owner is engaged in or in connexion with the industry of metalliferous mining when it has its metalliferous mining installations and associated works constructed. The constructor is engaged in work in connexion with metalliferous mining when it constructs the mining installations and associated works.
72 Aickin J (with whom Barwick CJ agreed) drew a similar distinction (at 485):
…[T]he activities of the project engineers in the present case cannot, in my opinion, be said to be 'quite distinct and separate from that of the mining companies engaged in metalliferous mining'. Here what they are doing is itself part of the business of metalliferous mining, and at the very least it is 'in connexion with' that industry.
73 Later, though (at 485), his Honour accepted that "…the substantial character of the industrial enterprise in which the project engineers and their employees will be engaged will be in the metalliferous mining industry, notwithstanding that all, or some, of it may properly be called construction work" (emphasis added). Gibbs J agreed with both Jacobs and Aickin JJ, concluding simply (at 472) that the project engineers' employees were engaged "in or in connexion with metalliferous mining".
74 R v Isaac; Ex parte Argyle Diamond Mines Pty Ltd (1985) 159 CLR 323 involved a demarcation dispute between rival trade unions. Each moved the Conciliation and Arbitration Commission for orders affording it the exclusive right to represent workers engaged to construct and operate a treatment plant at a diamond mine in the Kimberley region of Western Australia. As with other demarcation disputes, the matter turned upon the extent to which the employees were eligible for membership of each union. In the case of one, that question depended upon whether they were engaged "in or in connexion with…reducing and refining of ores".
75 In separate reasons, Gibbs CJ and Wilson J (with each of whom Deane and Dawson JJ agreed, Brennan J dissenting) concluded that the construction and operation of the treatment plant was work that fell within that description. The reasoning of the Chief Justice is most relevant presently. His Honour was concerned expressly to distinguish work that was performed "in" the reduction and refining of ores from work that was performed "in connection" therewith. His Honour accepted (at 335) that "… [t]he workers employed in the construction and operation of the mine were employed "in connexion with…the reducing and refining of ores"" but acknowledged that the position might have been different had the relevant rule referred only to engagement "in" those endeavours.
76 The authorities surveyed above (or combinations of them) have been applied in this and other courts in situations analogous (though not identical) to what arises here. In Kuypers v Ashton Coal Operations Pty Ltd [2014] NSWSC 1276 (Hoeben CJ at CL), for example, the New South Wales Supreme Court concluded that a drilling contractor that serviced various clients, including many in the coal industry, was not an employer in the coal industry. More recently, in Coal Mining Industry (Long Service Leave Funding) Corporation v Hitachi Construction Machinery (Australia) Pty Ltd [2023] FCA 68 at [240]-[250] (Raper J), this Court was drawn to a similar (albeit obiter) conclusion in respect of contract maintenance workers.
77 The question of whether Catering Industries operates as an employer in the aged care industry requires some analysis of the nature of its enterprise. On that score, there was little if anything in the evidence before the primary judge that was controversial. Over the more than 45 years that it has operated, Catering Industries has provided contract catering, cleaning and/or laundry services to many dozens of clients in all manner of callings, including mining, manufacturing, finance, communications, child care and defence. At the time of the hearing before the primary judge, the evidence was that it was engaged to provide "hospitality services (either in the form of a kitchen, dining room, cafeteria, bistro, canteen or café)" at or in respect of educational institutions, function centres, public sector departments, remote mining sites and corporate canteens.
78 Generally, Catering Industries' employees are engaged to work at a nominated site. Commonly, however, they are moved by agreement to different sites when circumstances warrant it (for example, as a result of an employee moving house). Some client sites - for example, boarding schools - are not operated year-round; and, in those circumstances, Catering Industries has had occasion to find its employees temporary work at other locations. Occasionally, staff are asked temporarily to relocate from one site to another to cover absences (for example, by employees who take authorised leave). In each case, staff might have occasion to move from a client in one industry (for example, education) to a client in another (for example, aged care).
79 Those realities notwithstanding, it is very much clear that the bulk of Catering Industries' work - at least at the time of the hearing before the primary judge - was or is work performed for clients that operate in the aged care industry. The evidence was that, at the time of the trial, Catering Industries employed 1,638 employees, who collectively worked for approximately 40 clients. The evidence concerning how many of them were employed to work at the facilities of clients operating unambiguously in the aged care industry was inconsistent; but it was very clear that the majority of them - perhaps nearing as many as 1,600 - were in that category.
80 Within Heritage Botany, the work of the Catering Employees is divided amongst a hierarchy comprising a Chef Manager, a cook and catering assistants. Between them, they oversee the storage, preparation and service of food and beverages to residents of the facility. They also attend to ancillary tasks, such as dishwashing, dining room set up and basic kitchen equipment cleaning and maintenance.
81 Predominantly, that work is undertaken within a kitchen area. The Heritage Botany facility is equipped with two such areas; but Catering Industries uses one of them as a scullery. The Catering Employees are charged with acquiring and storing food and beverages for preparation, service and consumption at the facility. Catering Industries retains ownership in those goods and charges Heritage only for what is consumed.
82 Residents typically take their meals in the facility's dining room or in their own rooms. The dining room is equipped with a bain-marie (or bains-marie), which appear to be reserved for use at lunchtimes. The Catering Employees prepare meals either in the kitchen area on individual plates and trays, or from the bains-marie in the dining room. Meals are then consumed within the dining room or loaded onto trolleys for distribution to residents' rooms as required. Where necessary, meals are resident-specific; that is to say, are prepared consistently with individual residents' dietary requirements.
83 Prior to December 2020, meal delivery to residents' rooms was undertaken by Heritage carers; but that has since been assumed by the Catering Employees, apparently in consequence of staffing difficulties associated with the covid-19 pandemic. There was some evidence about the procedures that apply in respect of residents who require assistance to consume the meals and beverages that the Catering Employees prepare for them. When needed, that assistance is afforded by Heritage-engaged carers.
84 The Catering Employees are required to undergo various training processes. Most are directed to food safety, food quality and hygiene; but some (for example, elder abuse training) are specific to the requirements of aged care residents. None of their training is directed to tasks that might more broadly be associated with the care of residents, such as providing medical care or diagnoses, providing assistance with mobility or dress, or assisting as required with day-to-day activities.
85 Representatives of Catering Industries hold meetings with Heritage Botany residents once per month to obtain feedback about the food services that are provided. Those meetings are typically orchestrated by a Catering Industries Area Manager (whose work extends beyond the provision of food services at the facility) or by the Chef Manager (whose employment is specific to the facility).
86 Meals prepared by the Catering Employees are prepared in accordance with standards developed under the International Dysphagia Diet Standardisation Initiative. Those standards concern the texture and viscosity of what is served to people who may experience difficulty consuming certain types of food and beverages. Unlike at other (non-aged care) facilities, the Catering Employees receive training directed to those standards and the needs of residents who suffer from dysphagia.
87 The HSU maintains that the facts just summarised accumulate to a point at which the provision of food services within the Heritage Botany facility should be understood as essential to and an integral component of the accommodation and care of its residents. As much may be accepted; but it is not sufficient to qualify the enterprise in which Catering Industries is concerned as one that operates in the aged care industry. The question remains: does Catering Industries operate a business that is concerned with the provision of accommodation and care services to aged care residents?
88 As the holding in Central West provides, to be "in" an industry requires that there be a substantive connection between Catering Industries and the aged care industry; and, in particular, something beyond the former merely being an employer who works in and about an aged care facility. It requires an assessment of Catering Industries' character and business: Central West at [50].
89 In our view, by reason of the nature of its enterprise described above, Catering Industries cannot be said to operate a business that is concerned with the provision of accommodation and care services to aged care residents. It runs a contract catering enterprise. That the services that it provides form part of - even a very important or essential part of - the services of other businesses that are concerned with the provision of accommodation and care is not a circumstance that alters the essential character of its undertaking. It is no more concerned with the accommodation and care of aged residents than Thiess (Repairs) Pty Ltd (at [67]) was concerned with the mining of coal.
90 None of that is to doubt the significance of Catering Industries' work to the care and accommodation of the residents of Heritage Botany. There is a logical attraction that attaches to the contention of the HSU that residents cannot be accommodated and cared for unless they are fed - and, more specifically, fed in a way that promotes their good health and enjoyment of life. But the same might be said of other services. An essential component of accommodation, for example, is building management; yet it could hardly be said that an arm's-length contractor engaged to maintain the proper workings or amenity of a residential aged care premises - for example a carpenter or a locksmith or a gardener - should be thought thereby to be concerned with the provision of accommodation and care.
91 Equally, there are many other vocations that are brought to bear upon the successful operation of aged care facilities. Cleaning, laundry, hairdressing, occupational therapy, maintenance, administration, information technology, professional services and many other functions all accumulate to one degree or another - and many to substantial or necessary degrees - to enable the provision of care and accommodation services to aged residents. But to the extent that those functions might be outsourced to external providers who service clients throughout various industries, it is something of a stretch to suggest that the employees who discharge them are employed by aged care employers.
92 The authorities recognise there is a distinction between being in an industry and providing services to an industry. The fact that Catering Industries, at the time of hearing, provided primarily services to the aged care industry, whilst relevant, is not determinative. As Latham CJ, who with Rich and Starke JJ formed the majority, held in Thiess (Repairs) Pty Ltd (at 130-131), "[o]ne industry may be entirely concerned with the service of another industry, and yet may not be part of that other industry". Even so, in this case, Catering Industries was not, and had never been, concerned exclusively with the service of the aged care industry. It was not disputed that it provided such services to a variety of clientele, including educational institutions, function centres, public sector departments, remote mining sites and corporate canteens and that its employees moved between client sites in these different areas of industry.
93 If the Aged Care Award were expressed to cover employers that operate "in or in connection with" the aged care industry, then the position might be quite different. But the present inquiry involves no such analysis. It starts and ends with consideration of whether Catering Industries is "in" the aged care industry. It is not.
94 With that stated, the following conclusions emerge. Catering Industries is not an "employer[ ]in the aged care industry" for the purposes of cl 4.1 of the Aged Care Award. That award covers neither it nor the Catering Employees. The factual and legal bases that were said to underpin the HSU's claim to declaratory relief are not established and the decision of the primary judge to refuse that relief on that basis was not a product of error.