ST JOHN AMBULANCE WESTERN AUSTRALIA LTD PREVENTATIVE TRAINERS AND FACILITATORS ENTERPRISE AGREEMENT 2024

Application for approval of the St John Ambulance Western Australia Ltd Preventative Trainers and Facilitators Enterprise Agreement 2024 - whether the Independent Education Union of Australia has constitutional coverage - definition of a teacher - correct modern award for better off overall test - Independent Education Union of Australia does not have constitutional coverage and cannot be party to Agreement - correct award is Miscellaneous Award - genuine agreement - requirements for approval met subject to undertakings - Agreement approved.

[1] St John Western Australia Ltd has applied to the Fair Work Commission for approval of the St John Ambulance Western Australia Ltd Preventative Trainers and Facilitators Enterprise Agreement 2024. The application was made under s 185 of the Fair Work Act 2009 (Cth). The Agreement is a single enterprise agreement and covers employees in SJWA's Training and Equipment subdivision in Trainer and Facilitator classifications. The United Workers' Union and the Independent Education Union of Australia were bargaining representatives in the negotiations for the Agreement.

[2] In this matter, there are two issues I must determine.

[3] Firstly, whether the IEU has constitutional coverage over the SJWA employees covered by the Agreement. SJWA and the UWU say the IEU does not. The IEU holds the opposite view. There is no contest regarding the UWU's constitutional coverage.

[4] Secondly, what the appropriate modern award for the purposes of the Better Off Overall Test in s 186(2)(d) of the Act is. SJWA contends it is the Miscellaneous Award 2020. The UWU and the IEU say it is the Educational Services (Post-Secondary Education) Award 2020.

[5] I heard the matter on Tuesday 18 February 2025. I granted permission for Mr Andrew Pollock of Counsel to represent SJWA and Ms Bobbi Murphy of Counsel to represent the IEU.

[6] Having considered the evidence and submissions of the parties, I find that the IEU does not have constitutional coverage and cannot be a party to the Agreement. I also find that the relevant award is the Miscellaneous Award.

[7] The detailed reasons for my decision follow.

[8] SJWA called Ms Leanne Bott (SJWA Head of Training and Equipment), Ms Peta Marshall (SJWA Head of Training Design and Governance), Ms Carly Rees (SJWA Industrial Relations Manager) and Ms Paige O'Shea (SJWA Legal Counsel) to give evidence.

[9] The IEU called Ms Rebecca Collopy (IEU WA Branch Secretary), Ms Raechel Smith (IEU WA Branch Organiser) and Ms Eleanor Hill (IEU member and retired SJWA employee) to give evidence.

[10] The evidence of the witnesses was largely consistent, and I found no issues with the credibility of any witness. I found Ms Bott's evidence to be particularly persuasive in its detail and cogency. I found Ms Hill's evidence to have limited probative value given her experience with SJWA was limited to working as a volunteer ambulance officer and casual first aid trainer in remote areas of regional Western Australia.

[11] Where the parties differ is the significance to be placed on aspects of the evidence.

[12] It is not contested that SJWA is a not-for-profit incorporated entity that operates in Western Australia. The SJWA FY23/24 Annual Report states that SJWA's 'Principal Activities' as follows:[1]

The Group's principal activities throughout the financial year were the operation of West Australia's emergency ambulance service, the provision of First Aid training and products and primary health care. These principal activities form part of the wider Group operations that delivers 17 services to the people of WA through three Service Streams: Preventative, Community and Emergency. It is through these activities that St John WA is better positioned to serve humanity and build resilient communities through the relief of sickness, distress, suffering and danger.

[13] SJWA has five organisational streams: Emergency; Community; Preventative; People Services; and Enterprise Performance.[2]

[14] The Emergency stream covers SJWA's metropolitan and country ambulance services which has 1,018 full-time employees, 103 casual employees and 2,283 country ambulance volunteers.[3] It also covers the following services:[4]

• (a) Provision of critical care services on WA's rescue helicopters (22 full-time employees);

• (b) Special operations response services (10 full time employees and one part-time employee);

• (c) Operating the State Control Centre, where triple zero calls are received and dispatched (252 full time employees, 48 part-time employees, and seven casual employees);

• (d) The community transport service (13 full-time employees, five part-time employees, and 13 casual employees); and

• (e) The patient transport service, which provides non-emergency ambulance transport (277 full-time employees, 47 part-time employees, and 82 casual employees).

[15] The Emergency stream is SJWA's largest in terms of revenue (it generates approximately 83% of SJWA's total annual revenue) and employees (it holds approximately 55% of SJWA's total employees).[5]

[16] The second largest stream is Community stream which delivers community-related initiatives and services such as: event health services; general practice, dental and urgent care medical services; and industry medical services.[6] The Community stream generates approximately 12% of SJWA's total annual revenue and employs approximately 11% of SJWA's total workforce.

[17] The People stream contains SJWA's internal human resources and workplace relations people. The Enterprise Performance stream oversees SJWA's financial performance, digital property, supply chain, legal and governance management. These last two streams are more to do with SJWA's internal operations and is not 'outward facing' in the same way the Emergency, Community and Preventative streams are.

2.2 The Preventative stream and Training and Equipment subdivision

[18] The Preventative stream has six subdivisions: Training and Equipment; Brand and Marketing; Customer Experience; Social Sustainability; Business Development and Innovation; and Training Design and Governance.[7]

[19] SJWA delivers accredited and non-accredited health and first aid training programs through the Training and Equipment subdivision. The Training Design and Governance subdivision designs and plans these training programs.[8] SJWA is a Registered Training Organisation that is regulated by the Australian Skills Quality Authority.[9]

[20] Ms Bott's evidence is that in the last financial year, the Training and Equipment subdivision generated $24,789,000,[10] or 4.5% of SJWA's total annual revenue.[11] Of that amount, $13,623,448 was generated through SJWA's training offerings. The remaining $11,165,552 came from the sale of equipment and equipment-related services.[12] This means the revenue generated through SJWA's training offering in the 2024 financial year was 2.58% of SJWA's total revenue.[13] In the 2023 financial year, that figure was 2.62%.[14]

[21] SJWA offers 11 accredited health and first aid courses.[15] SJWA also offers:

(a) three non-accredited health and first aid courses: First Aid for Mental Health; First Aid Essentials; and Tiny Tots;[16]

(b) first aid and general leadership training to children aged between 12 and 17 years old;[17]

(c) training for students from kindergarten to year 12 as part of its 'First Aid Focus Program';[18] and

(d) training for people who wish to volunteer with SJWA.[19]

[22] Accredited courses must meet ASQA guidelines. Participants who complete an accredited course receive a statement of attainment recognising completion of a recognised unit of competency. Accredited courses are primarily delivered by Trainers.[20]

[23] Non-accredited courses are designed by SJWA and do not need to comply with external regulations. Non-accredited courses are not assessed, and participants receive a certificate of attendance. These non-accredited courses are primarily delivered by Facilitators.[21]

[24] Ms Bott's evidence is that SJWA delivers training and education to the following groups of people:[22]

• (a) Members of the public who book directly with SJWA;

• (b) Corporate clients who require training to their workforces;

• (c) The Western Australian Police Force;

• (d) The Department of Fire and Emergency Services;

• (e) Community sporting groups;

• (f) Teachers and education workers;

• (g) School students.

[25] Ms Bott also provided the following statistics from the 2024 financial year:[23]

• (a) 90,218 people participated in SJWA accredited and non-accredited first aid training courses;

• (b) 78,146 completed accredited in-person first-aid training;

• (c) 12,072 completed non-accredited first-aid training;

• (d) 86,236 school children received first aid training through SJWA's First Aid Focus Program, delivered by SJWA Community Education Officers; and

• (e) 10,500 people completed free online courses.

[26] Of the people who completed an accredited or non-accredited course delivered by a SJWA trainer or facilitator in the 2024 financial year:[24]

• (a) 583 people were aged under 16 (who were all school students at the time);

• (b) 1,356 people were aged 16-17 (who were all school students at the time);

• (c) 77,817 people were over 17; and

• (d) 10,462 people were of unknown age.

[27] The Trainers and Facilitators in the Training and Equipment subdivision are currently covered by the St John Ambulance Western Australia Ltd. First Aid Trainers Enterprise Agreement 2021 and will be covered by the Agreement that is the subject of this application. There are currently 33 full-time and 111 casual trainers and facilitators.

[28] Ms Bott's evidence is that the Trainer and Facilitator roles involve the following:[25]

• A two-week onboarding process upon commencement, then delivering training courses under supervision.

• Performing operations duties with the Training Operations team at SJWA's Belmont head office or regional offices.

• Providing mentoring to other Trainers and Facilitators.

• Onboarding and inductions for new trainers and facilitators.

• Participating in community engagement events.

• Performing defibrillator demonstrations for clients who have purchased a defibrillator through the equipment division.

• Assisting in first aid demonstrations with SJWA First Aid Specialists completing SJWA workplace assessments.

• Assisting in content creation for SJWA training resources, marketing materials and media engagement when necessary.

• Assisting SJWA's other departments during staffing shortages.

• Participating in SJWA working groups.

• Completing annual trainer re-accreditation and professional development.

• Participating in validation activities by providing feedback and input into training programs.

[29] The differences between Trainers and Facilitators are as follows:

• Trainers are required to hold a Certificate IV in Training and Assessment whereas Facilitators are not.

• Trainers provide first aid training in accredited and non-accredited courses whereas Facilitators only deliver non-accredited courses.

• Both are responsible for marking attendance and delivering training designed by the Training Design and Governance subdivision. However, Trainers are also responsible for assessing participants' learning and marking participants' assessments at the end of the course.

• Trainers are required, in limited circumstances, to have relevant experience in a particular industry e.g. Trainers who deliver the Low Voltage Rescue and Provide CPR training course must have some knowledge/experience in the electrical industry.

3. Issue One: Does the IEU have constitutional coverage?

[30] The first issue is whether the IEU can be a party to the Agreement. There is no contest that at least one employee covered by the Agreement has enrolled with the IEU and the IEU participated in the bargaining process for the Agreement. However, the question is whether Facilitators or Trainers are eligible for membership under the IEU's eligibility rules.[26]

[31] The IEU's eligibility conditions are set out in Rule 2 of its rules. Relevant to this matter are Rules 2(d) and 2(e), which read as follows (emphasis added):

2 - CONSTITUTION

The Union shall consist of an unlimited number of persons howsoever described who are employed, usually employed or qualified to be and desirous of being employed or seeking to be employed in or in connection with the industry or industries, and/or occupation, and/or calling, and/or vocations, and/or industrial pursuits of:

(d) any persons (other than teachers, teacher-librarians, librarians, Principals and others exercising supervisory, counselling or advisory functions, or assistants, aides or helpers to them) employed to provide, or to assist in providing, educational instruction or employed in any other capacity in non-government schools or educational institutions;

(e) teachers in non-government pre-schools and/or centres in which Early Childhood Services are provided in New South Wales, the Australian Capital Territory and Queensland only (but excluding any teacher employed by any municipal or Shire Council in New South Wales), and teachers employed in or by any non-government social or community organization, or any non-government educational institution or body;

[32] The IEU submits that it can cover the SJWA Trainers and Facilitators by virtue of Rule 2(d). In the alternative, the IEU relies on Rule 2(e).

3.1 Rule 2(d): A disjunctive or conjunctive approach?

[33] Rule 2(d) can be interpreted with either a disjunctive or conjunctive reading.

[34] The disjunctive reading would construe Rule 2(d) so that it applies to two broad categories of employees:

• any person employed to provide or assist in providing educational instruction; or

• any person employed in any other capacity in non-government schools or educational institutions.

[35] The conjunctive reading would mean that Rule 2(d) effectively reads:

(a) employed to provide, or to assist in providing, education instruction or

(b) employed in any other capacity

in non-government schools or education institutions.'

[36] The IEU submits the disjunctive reading is the correct interpretation for the following reasons:

• (a) The ordinary meaning of 'or' is disjunctive. Unless the text indicates that 'or' should not be read in such a way, the appropriate approach is to give the word its natural and ordinary meaning.

• (b) The word 'employed' is used twice - first in relation to persons providing or assisting in providing educational instruction, and second in relation to persons employed in any capacity at non-governmental schools or educational institutions. This shows an intention to cover two separate categories of employees, since it would not be necessary to use the word 'employed' twice otherwise.

• (c) In the conjunctive reading, the words 'to provide, or to assist in providing, education instruction or employed in any other capacity' have no work to do - if the conjunctive reading was the correct reading, the rule could be simply expressed as 'any person employed in a non-governmental school or educational institution'. This is contrary to the interpretative requirement to give words their natural and ordinary meaning. It would also give the eligibility rule a narrower application than is available on its face, which is contrary to the principle that eligibility rules should be construed liberally.

[37] The IEU's position is that the SJWA Trainers and Facilitators are covered by the first limb in a disjunctive reading of Rule 2(d) as they are providing or assisting in providing educational instruction.

[38] SJWA submits that the conjunctive reading is the correct interpretation of Rule 2(d) for the following reasons.

[39] Firstly, a disjunctive construction of Rule 2(d) is overly broad and would have the unintended effect of increasing the IEU's constitutional coverage to persons employed to provide any kind of educational instruction, regardless of setting. This is because 'educational instruction' is not a term of art or have an industrial meaning. The ordinary meanings of 'educational' and 'instruction' are extremely broad, and educational instruction is a necessary part of many kinds of employment across all industries.

[40] SJWA says by way of example that the disjunctive reading of Rule 2(d) would apply to doctors responsible for instructing junior medical staff, tradespersons responsible for instructing apprentices, or professions such as golf coaches or surfing instructors.

[41] Secondly, a disjunctive construction of Rule 2(d) would undermine the rest of Rule 2. Given how wide the term 'educational instruction' is, a disjunctive reading would effectively give Rule 2(d) the breadth to cover large parts of the persons/types of employment contemplated by other provisions of Rule 2.

[42] By contrast, each of the subrules of Rule 2 link the nature or type of employment to the place or setting of that employment - being certain schools, secondary colleges, post-secondary colleges, educational institutions, pre-schools or childcare centres, correctional centres or the IEU itself.

[43] Thirdly, a disjunctive approach would not work with other parts of Rule 2. If a disjunctive approach were taken with Rule 2(c), it would give the IEU coverage over 'any person employed in any clerical capacity or administrative capacity' without qualification. This suggests that Rule 2(c) must have been intended to connect to the place or setting at which the person is employed. There is no apparent basis to adopt a different approach when construing Rule 2(d).

[44] Fourthly, Rules 2(i) to (ix) - which set out exclusions as to who may enrol for membership of the IEU - are instructive in how Rule 2(d) should be interpreted. The exclusions include persons employed in post-secondary colleges; universities; houses of religious and clerical formation; non-governmental schools or educational institutions; educational authorities; pre-schools and child-care centres.[27] This demonstrates that the IEU's eligibility rules, including Rule 2(d), have a link between the type of employment and the place or setting where that employment is undertaken.

[45] Fifthly, Rule 3 sets out the industry in or in connection with which the IEU is registered is the industry of non-government schools, educational institutions and teachers. SJWA submits that it is not an educational institution. Further, the term 'teacher' has an industrial meaning that does not encompass Trainers and Facilitators. This is dealt with further later in this Decision in relation to Rule 2(e).

[46] Sixthly, the conjunctive reading is supported by the history and purpose of the IEU Rules. In summary, the IEU is the successor to the Independent Teachers Federation of Australia, which itself was the amalgamation of state-based non-government teacher unions. As such, SJWA submits the IEU's industrial history supports a finding that Rule 2(d) must be construed with a tether to non-government schools and educational institutions.

[47] With regards to the IEU's arguments in support of the disjunctive reading of Rule 2(d), SJWA makes the following submissions:

(a) It is well-established that the word 'or' can have a conjunctive meaning where the context supports such a meaning.[28] This is particularly where the word 'and' would have an unintended restrictive effect.[29]

(b) That the word 'employed' is used twice is not compelling. If the second 'employed' were omitted, the rule would become ambiguous.

(c) Though the words 'employed in any other capacity in non-government schools or educational institutions' may have a broad application, that does not by itself warrant interpreting the words 'employed to provide, or to assist in providing educational instruction' as having an even broader application.

[48] The UWU also submits that the disjunctive reading of Rule 2(d) is the correct construction. The UWU points to the Macquarie Dictionary definition of 'or':

Conjunction[,] 1. a particle used: to connect words, phrases or clause representing alternatives. 2. To connect alternative terms for the same thing or different ways of expressing the same concept.

[49] The UWU submits that 'or' is used as a conjunction throughout Rule 2 to list the employment types it covers and the types of employers that the employee must be engaged by.

[50] Further, the disjunctive approach is impermissibly broad. Under the disjunctive construction, the IEU would have coverage of any employee who is employed to provide or assist in educational instruction. 'Educational instruction' is broader than 'teacher' and would potentially include on the job training, mentorship, or the education instruction provided by a manager to a subordinate or trainee.

[51] The UWU also echoes the submissions of SJWA in that the other eligibility conditions in Rule 2 confine the IEU's coverage to an educational context- non-government schools, colleges, post-secondary colleges, non-government pre-schools or education institutions.

[52] SJWA is clearly not a non-government school. 'Educational institution' does not have a previously defined industrial meaning, nor it is defined in the IEU's rules nor the Macquarie dictionary.

[53] The UWU submits that 'institution' in Rule 2(d) implies the employer exists primarily to fulfil that particular purpose - in this case, the provision of education. The UWU relies on the reasoning of White J in The National Institute of Dramatic Art v Chief Commissioner of State Revenue, which looked at the 'predominant and characteristic activity' when considering whether the NIDA was a school of college.[30]

[54] SJWA'S predominant purpose is the prevention and relief of suffering through the provision of health service. The UWU further submits that while SJWA offers educational services, they do not rise to the level of 'predominance' in SJWA's enterprise. SJWA's Annual Report FY22/23 and its Director's Report support this conclusion, as does the fact that the provision of first aid training is not SJWA's primary source of revenue.

In further support of the disjunctive support: the IEU

[55] The IEU makes the further submissions in reply to SJWA's and the UWU's arguments for the conjunctive approach:

• (a) The disjunctive reading would result in the IEU being able to apply to employees such as doctors instructing junior medical staff or tradespersons instructing apprentices - the words of the Rule 2(d) need to be looked at in context. The rule refers to persons employed to provide educational instruction. The examples cited by SJWA and the UWU are not employed to provide for this purpose.

• (b) A disjunctive interpretation would result in inconsistency with other parts of Rule 2 -given Rule 2(a) excludes government schools and the need for eligibility rules to be given a practical operation, it would not be the case that a disjunctive reading would result in the IEU being able to cover employees in government schools.

• (c) 'Educational instruction' is a very broad term and the disjunctive interpretation would lead to Rule 2(d) effectively undermining other eligibility rules - the sub-rules are directed to different situations. This means that while some degree of overlap may be present, that is not a valid reason to reject the disjunctive approach.

• (d) If a disjunctive approach were taken to other sub-rules, such as Rule 2(c), it would make that sub-rule unworkable - the same approach shouldn't be applied to Rule 2(c). Rule 2(d) uses the word 'employed' twice, whilst Rule 2(c) uses it once, which suggests that the entire phrase is to be read together.

• (e) Rule 2 has exclusions that refer to places or settings, so therefore all other parts of Rule 2(d) should be tethered to a place or setting - this an incorrect reading. The exclusions in Rule 2(v) are in reference to particular roles or occupations in non-government schools or educational institutions. It is therefore an exclusion by reference to occupation, not place or setting.

[56] The IEU also submits that it has coverage of Trainers and Facilitators under Rule 2(e), which relevantly provides that it can enrol, 'teachers employed in or by any non-government social or community organisation...'.

[57] The IEU submits that SJWA is a non-government social or community organisation and the Trainers and Facilitators are teachers.

[58] In support of this submission, the IEU relies on the following:

• (a) Trainers are required to have a Certificate IV in Training and Assessment;

• (b) Facilitators deliver non-accredited training in line with SJWA's requirements; and

• (c) the primary function of the Trainers and Facilitators is first aid training or instruction.

[59] SJWA submits that the language of Rule 2 delineates between providing 'educational instruction' and 'teaching'.[31] SJWA accepts that the primary function of the Trainers and Facilitators is to train and/or facilitate and that they are providing educational instruction. However, SJWA submits that the Trainers and Facilitators do not fall within the profession of teaching as it is industrially understood.[32]

[60] The UWU adopts SJWA's submissions with regards to Rule 2(e).

[61] The parties did not disagree on the relevant principles that apply to the construction of union eligibility rules. These can be summarised as follows:

(a) Union eligibility rules are to be construed objectively, with words given their ordinary meaning, having regard for the nature or the instrument and the purpose that it is intended to serve.[33]

(b) The nature of union eligibility rules means that should be interpreted liberally rather than narrowly or technically.[34]

(c) Interpreting the eligibility rules of a union and determining their application in a particular factual context is 'a legal question to be solved by legal considerations'.[35]

(d) In determining whether an employee falls within the scope of a vocational rule, the vocational rule is applied to the employee's 'primary function', rather than examining the employee's individual duties in isolation.[36] An employee's primary function is ascertained by examining what that employee does in the context of the employer's organisation of work.[37]

(e) If there is ambiguity in the words in eligibility rules, assistance may be sought in the words of the industry rule.[38]

(f) Words in an eligibility rule should not be read in isolation such as to give the rule a wide and indefinite scope of operation that is unlikely to have been intended.[39]

[62] What is clear from the above principles is that the task of interpreting a union's eligibility rules should be approached carefully, as the ramifications can be far reaching for the relevant union. With this mind, I make the below findings.

My findings on Rule 2(d): why the conjunctive construction is correct

[63] I accept that read ordinarily, the word 'or' can support a disjunctive or conjunctive reading. I also accept - as is often the case - that that there will be parts of union rules that may not be entirely internally consistent. Given that most union rules are the product of years of amalgamation between predecessor unions (sometimes with outdated or imprecise drafting), it is not unexpected that sometimes rules might read a little oddly when read as a whole.

[64] As was noted by the Full Court of the Federal Court in CSBP, a rule should be understood by considering it as a whole so that its parts may shed light on each other.[40] This is separate from cross-referencing the relevant eligibility rule with the union's Industry Rule as a construction aid.

[65] The IEU submitted that there should be no recourse to the IEU's Industry Rule in Rule 3 as Rule 2(d) is not ambiguous. I find that with or without the Industry Rule, the conjunctive reading of Rule 2(d) is the correct constructional choice.

[66] I largely agree with SJWA and the UWU's submissions as already canvassed in this Decision. At the heart of it, I find that the disjunctive construction of Rule 2(d) is not supported when Rule 2 is read as a whole, and is therefore impermissibly broad.

[67] Under the disjunctive reading, the IEU would have coverage over 'any persons...employed to provide, or to assist in providing, educational instruction', regardless of setting. I accept the IEU's contention that under the disjunctive approach the 'persons' would have to be employed to provide or assist in providing education instruction, which would exclude SJWA's and the UWU's examples of supervising doctors and apprentice masters. However, reading Rule 2(d) in the context of Rule 2 tells against a reading that effectively untethers the occupation (persons employed to provide or to assist in providing educational instruction) and the location or type of employer (non-government schools or education institutions) in Rule 2(d).

[68] An analysis of Rule 2 shows that that each subrule is to be read with a tether to a location or type of employer as follows:

• Rule 2(a): teachers, librarians, principals and supervisory occupations at non-government schools and colleges.

• Rule 2(b): persons engaged in a clerical or administrative capacity within the same terms as Rule 2(a).

• Rule 2(c): persons employed in a clerical or administrative capacity or as an advisor, supervisor or education officer by an authority responsible for a non-government school or group of non-government schools.

• Rule 2(e): teachers in non-government pre-schools, centres, social or community organisation or any non-government educational institution or body.

• Rule 2(f): employees and officials of the IEU.

• Rule 2(g): effectively confers the eligibility conditions in Rule 2 to independent contractors.

• Rule 2(h): persons employed in certain occupations at the Junee Correctional Centre.

[69] Except for Rule 2(f), which confers eligibility on the IEU staff and union officials, Rules 2(a) - (h) tether the eligibility condition with a location or type of employer, predominantly being non-government educational institutions or authorities that operate non-government educational institutions. Given this context of Rule 2 and the fact that 'or' can be read in a conjunctive sense, I find it hard to accept that Rule 2(d) does not operate in a similar way.

[70] Subrules 2(i)-(vii) sets out the people who are not eligible for membership of the IEU and each subrule refers to a location of type of employer (except for Rule 2(ix) (which excludes Principals and Deputy Principals from the IEU's coverage). This further supports the finding that Rule 2(d) must be read to have a connection between the type of employment and the location or type of employer.

[71] I find that reading Rule 2 as a whole is sufficient to find that the conjunctive construction of Rule 2(d) is correct. However, if I had doubt as to the correct meaning of Rule 2(d) due to ambiguity, I would follow the approach of the Full Court in CSBP in considering the IEU's Industry Rule. The IEU's Industry Rule sets out that the industry in or in connection with which the IEU is registered is the industry of non-government schools, education institutions and teachers, and the industry of education in the Northern Territory. This supports a finding that Rule 2(d) must be read with the connection to 'non-government schools or educational institutions'.

[72] Whilst union eligibility rules should be interpreted liberally rather than narrowly or technically, the disjunctive reading goes against the principle of reading words in isolation to give a rule a wide and indefinite scope of operation that is unlikely to have been intended. For these reasons, I find that the IEU does not have constitutional coverage of SJWA Trainers or Facilitators under Rule 2(d).

My findings on Rule 2(e): the SJWA Trainers and Facilitators are not teachers

[73] The parties did not make extensive submissions regarding Rule 2(e). The thrust of the parties' positions rested on the decision of IEU v Guide Dogs NSW/ACT.[41] Guide Dogs involved an application made by the IEU under s 229 of the Act in relation to members employed as Orientation and Mobility Specialists and Guide Dog Instructors by Guide Dogs NSW/ACT. The issue was whether the IEU could enrol the Specialists and Instructors under their Rule 2(e). In that case Vice President Catanzariti found that the Specialists and Instructors fell outside the remit of Rule 2(e).

[74] The parties acknowledge the authority of Guide Dogs, but unsurprisingly, disagree as to how it should be applied in this matter.

[75] Like the parties, I respectfully accept and adopt the Vice President's analysis of Rule 2(e) in Guide Dogs, which can be summarised as follows:

(a) The ordinary and objective meaning of the term 'teacher', as defined in the Macquarie Dictionary, is '[s]omeone who teaches or instructs, especially as a profession; instructor'.[42]

(b) The historical context of Rule 2(e) and the industrial understanding of the term 'teacher' is of particular relevance, especially given the term is undefined in the IEU's rules.[43]

(c) The IEU is the successor union to the Independent Teachers Federation of Australia, which is the grouping of various state-based non-government teacher unions. The High Court in Re Lee; Ex parte Harper noted that the membership of the ITF consists of persons employed in or in connexion with school teaching, except that it is confined to employee of non-government and independent schools including grammar schools.[44]

(d) The ITF - and the IEU as its successor - were concerned with the work of persons engaged in the profession of teaching. However, this is not to say that the IEU's coverage is limited to school teaching, indeed the language of Rule 2(e) tells against such construction.[45]

[76] Notably, the Vice President made the following finding at [42]:

Given the history of the IEU's formation as an organisation that was registered to cover school teachers in the non-government sector, and given the industrial understanding of the term teacher as found in the teaching Awards which applied to non-government schools in NSW, I find that the term "teachers", when construed liberally in the context of Rule 2(e), must not extend to any person who teaches or instructs in any non-government social or community organisation. This construction would be extremely wide such that it could potentially cover lawyers, doctors and any other person engaged in instruction and teaching in a non-government social or community organisation. I also find that the term teachers in Rule 2(e) is not confined to school teachers; however given the historical and industrial context detailed above, caution needs to be exercised in adopting an unreasonably wide definition such that a person is considered to be a teacher where teaching and instruction is not the primary function of their job. This is in my view should be the outer boundary of Rule 2(e)'s coverage of teachers in non-government social or community organisations (emphasis added).

[77] After examining the duties of the Specialists and Instructors, the Vice President found that they did not fall within the scope of Rule 2(e), finding at [50]:

Especially given my observations regarding the historical context of the IEU and the industrial understanding of the term teachers as being primarily concerned with school teaching, I have determined that to extend coverage under Rule 2(e) to the Relevant Employees would necessarily result in an interpretation that is extremely wide or indefinite as to be unlikely to have been intended by the Rules. The potential implication of such a construction would be far reaching. (emphasis added)

[78] There is no contest the SJWA is a non-government social or community organisation. I agree with the findings in Guide Dogs that the IEU's membership is not limited to school teaching and that a person does not have to be employed by a school to be considered a teacher. However, building on the analysis in Guide Dogs regarding the IEU's industrial history, I find that the way teachers are referred to in the IEU's rules as a whole supports a finding that a teacher is someone who is engaged in the profession of teaching for the following reasons.

[79] Firstly, I find that not everyone who educates or provides educational instruction is a teacher under the IEU's rules. Such a distinction can be seen in the following sub-rules:

• Rule 2(d), which describes persons (other than teachers) who employed to provide, or to assist in providing educational instruction;

• Rule 2(h), which provides eligibility to teachers and instructors; and

• Rule (vii), which excludes from the IEU's coverage persons employed in the teaching and/or training of certain children.

[80] If a 'teacher' meant anyone who provided educational instruction or training, there would be no distinction between teachers and those who are employed to provide education instruction; instructors; or people who provide training in the IEU's rules.

[81] Secondly, as 'teacher' is not defined in the IEU's rules, I find it is appropriate to have recourse to the Industry Rule and other parts of the IEU's rules. Rule 3 sets out the IEU is in (or connected with) the industry of non-government schools, educational institutions and teachers.

[82] 'Teacher' is also referred to in the IEU's objects, with the object in Rule 5(s) being the establishment and maintenance of 'one united Union of teachers in non-government schools and educational institutions throughout Australia', and Rule 5(t) setting the object of protecting and advancing the 'industrial and professional interests of teachers and other staff employed in non-government schools and educational institutions'. Again, teachers are linked with non-government schools and educational institutions.

[83] The common denominator between these references in the IEU rules is that teachers are connected to schools and educational institutions, which are bodies that are in the business of formal education. This is consistent with the above analysis that there is a distinction between being a teacher and someone who is engaged to provide educational instruction. This is also consistent with the findings in Guide Dogs that the industrial meaning of a 'teacher' is primarily concerned with school teaching, and that the IEU is concerned with the work of persons engaged in the profession of teaching.

[84] Based on the above, I find that being a teacher under the IEU's rules means more than providing educational instruction; a person must be in the profession of teaching.

[85] This does not mean that to be a teacher one must have a specific formal qualification, though that may be a relevant factor to be assessed. It also does not mean that a person must work for a school to be considered a teacher.

[86] I accept that the Trainers are required to have a Certificate IV in training and that both the Trainers and Facilitators deliver training (both accredited and non-accredited). I readily accept that they provide education instruction. However, based on the evidence before me and given my findings on the operation of Rule 2(e), I am not satisfied that they are in the profession of teaching, and therefore do not fall within the industrial meaning of a 'teacher'.

[87] Clause 4.1 of the Post-Secondary Education Award reads:

4.1 This industry award covers employers throughout Australia in the post-secondary educational services industry and their employees (other than trades, cleaning or maintenance staff) employed in the classifications listed in Schedule A - Classifications - Academic Teachers, Schedule B - Classifications - Teachers and Tutor/Instructors and Schedule C - Classifications - General Staff, to the exclusion of any other modern award.

[88] Clause 4.2 defines the 'Post-secondary educational services industry' as follows:

4.2 Post-secondary educational services industry means the provision of education and training to persons over the age of 16 years who have exited the school education system; and includes:

(a) vocational education and training (VET) teaching leading to qualifications recognised within the Australian Qualifications Framework (AQF);

(b) English Language Intensive Courses for Overseas Students (ELICOS) and Teaching English to Speakers of Other Languages (TESOL) teaching;

(c) Languages Other Than English (LOTE) teaching;

(d) English language, literacy and numeracy teaching;

(e) English language teaching in migrant education programmes;

(f) community and adult education teaching not leading to qualifications recognised by the AQF;

(g) undergraduate and postgraduate teaching leading to the conferring of accredited degrees or other higher education qualifications recognised within the AQF, except teaching in a university approved to operate in Australia;

(h) foundation studies programmes or bridging course teaching where the programme or course is preparatory to or articulates with programmes of teaching leading to higher education qualifications recognised within the AQF; and

(i) the employees of any student unions established for students in institutions providing post-secondary educational services.

The IEU and the UWU: SJWA is in the post-secondary educational services industry

[89] The UWU submits that in addition to SJWA's predominant purpose of providing emergency and non-emergency ambulance transport services, SJWA's enterprise has an additional substantial character that places it in the educational services industry. This is based on the following:

• (a) The size of SJWA's educational services: Educational services are SJWA's second largest revenue source after ambulance services. They are undertaken at large scale, delivering training to over 100,000 people in 2024, and at 91 training locations.

• (b) The educational services operate as a distinct subdivision or enterprise: They are in fact distinct enough to warrant their own enterprise agreement, rather than being included in other enterprise agreements that apply to SJWA's activities in communications, patient transport, ambulance, and administration.

• (c) The scope of the Post-Secondary Education Award: In addition to qualified teachers, the Award was intended to cover 'tutor/instructors, who may have no teaching qualifications but possess expertise which qualifies them to instruct students in a particular subject'.

[90] The UWU submits that the historical context of the Post-Secondary Education Award is of limited utility in construing its coverage. This is due to the proliferation of providers in the VET/TAFE, college and post-secondary school system in recent years. The UWU further submits that clause 4.2(a) and (f) of the Post-Secondary Education Award brings providers such as SJWA, that ordinarily sit outside the college and VET/TAFE system, within the coverage of the Post-Secondary Education Award.

[91] The IEU submits that Clause 4.2(f) of the Post-Secondary Education award should not be read in such a way that post-secondary education services only relate to education of training that is a successor to secondary education, is preparatory for employment, is vocational, or is 'formal' in some way. Further, that Clause 4.2(f) should be read in an expansive rather than narrow way.

[92] The IEU also submits the SJWA downplays the significance of its first aid training operations, which is one of its 'core businesses' and 'principal activities'.

SJWA: It is not in the post-secondary educational services industry

[93] SJWA's primary submission is that it is not an employer 'in' the post-secondary education industry as its substantial character is the provision of emergency ambulance services.

[94] In the alternative, SJWA submits that even if its Training and Equipment subdivision is itself a business with its own substantial character, that substantial character still does not place the Training and Equipment subdivision 'in' the post-secondary education industry. This is because SJWA offers its first aid training to the public at large; it does not offer first aid training exclusively to adults in post-secondary education, nor does it operate in the post-secondary schools, colleges, TAFE institutes and community education providers that comprise the post-secondary education industry.

[95] A modern award will cover an employer of employee if the award is expressed to cover them. This 'expression' is generally found in the award's coverage and classification provisions.[46]

[96] Again, the parties did not disagree on the relevant approach to determining which modern award covers the Trainers and Facilitators. These can be summarised as follows:

(a) The approach to interpreting award provisions is to discern the objective meaning of the words used, considering the context in which they appear and the purpose they are intended to serve.[47]

(b) The enterprise of an employer can have more than one character and be in more than one industry.[48]

(c) Whether the enterprise of an employer is in a particular industry for the purpose of award coverage is a question of fact. This is determined by the 'substantial character' of the enterprise in which the employer and its employees are engaged in. Determining this 'substantial character' is done by reference to the trade or business of the employer and all its employees and requires a consideration of the employer's business as a whole.[49]

[97] The New South Wales Court of Appeal in Central West Group Apprentices Ltd v Coal Mines Insurance Ltd[50] examined the question of whether a business was an 'employer in the coal industry'. Allsop P (with Giles and Bell JJA agreed) explained the court's task as follows at [37] of the decision:

...[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.

[98] His Honour found that the phrase 'employer in the coal industry' required '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'.

[99] This approach was affirmed by the Full Court of the Federal Court in Health Services Union v Catering Industries (NSW) Pty Ltd,[51] with the Full Court finding at [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).

[100] The Full Court noted the limits on authorities that have considered similar, but not identical questions in similar, but not identical, contexts. However, the Full Court ultimately agreed that such authorities are still instructive and aid 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'.[52]

[101] In line with these authorities, in order to determine whether SJWA is an employer 'in the post-secondary educational services industry', I must assess the substantial character of SJWA and its business, and I must be satisfied there is a substantive connection between SJWA and the post-secondary educational services industry.

[102] With regards to the substantial character of SJWA and its business, I accept that SJWA's Training and Equipment subdivision offers training at a large scale and that a business can have more than one substantial character.

[103] However, when examining the evidence of what SJWA does, I find that whilst the Training and Equipment subdivision may train a large number of participants, it is only a small part of SJWA's operations. That is supported by Ms Bott's uncontested evidence is that there are currently approximately 144 Trainers and Facilitators. In contrast, the Emergency stream employs an approximate total of 2137 employees. Ms Bott's further uncontested evidence is that the Training and Equipment subdivision only generated 4.5% of SJWA's total annual revenue, with the training component generating an even smaller 2.58% for the 2024 financial year. Whilst numbers are not determinative of a business's substantial character, it is a factor to be considered.

[104] I also accept that SJWA's FY23/24 Annual Report states that the provision of first aid training is one of its 'core businesses'. However, I find that more weight is to be given to how SJWA operates in practice.

[105] In this case, I have given weight to the evidence of SJWA's training offering; how it operates in the context of SJWA's overall structure as a subdivision of one of SJWA's three outward-facing streams; the number of people who are trained; the operations of the Emergency and Community streams; and the small proportion of total annual revenue and employees that can be attributed to SJWA's Trainers and Facilitators. Considering these factors, I find that the substantial character of SJWA's business is the provision of health care through emergency patient transport and health services. I also find that SJWA's educational services provided by the Trainers and Facilitators do not comprise a secondary substantial character.

[106] The post-secondary educational services industry is the provision of education and training in certain circumstances. The breadth of those circumstances was contested by the parties. However, even if I were to accept a wide definition of interpretation of post-secondary educational services industry as per the UWU's and the IEU's submissions, SJWA is not in the industry of providing education and training; they are in the industry of providing health care through emergency patient transport and health services.

[107] It follows that the Miscellaneous Award is the appropriate award for the purpose of s 186(2)(d) of the Act. I now turn to consider the approval of the Agreement.

[108] The Agreement title on the Notice of Employee Representational Rights is 'St John Ambulance Western Australia Ltd First Aid Trainers Enterprise Agreement 2024' whilst the Agreement title in Clause 1 of the Agreement is 'St John Ambulance Western Australia Ltd Preventative Trainers and Facilitators Enterprise Agreement 2024'. Pursuant to s 188(5) of the Act, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical errors made in relation to the requirements set out in s 174(1A) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(5) of the Act.

[109] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[110] In compliance with s 190(4) of the Act, the bargaining representatives' views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by SJWA. The UWU confirmed at the hearing that they do not take issue with the undertakings provided.

[111] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

[112] I note that the following clause in the Agreement appears to be inconsistent with the National Employment Standards (the NES):

• (a) Clause 32.4 states that if it is not practical for the Employee to give prior notice of the absence, the Employee will notify SJWA by telephone of such absence at the first opportunity on the day of the absence. This appears to be inconsistent with s 107(2)(a) of the Act which provides that notice must be given to the employer as soon as practicable (which may be a time after the leave has started).

• (b) Clause 32.5(c) provides that the Employee must give notice in accordance with SJWA policies in relation to unpaid carers leave. It is unclear what these policies are and whether they are compliant with the NES and/or the Act.

• (c) Clause 32.6(a) provides the entitlement to compassionate leave but does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee's immediate family or household as per s 105(1)(b) of the Act or after the employee or the employee's spouse or de facto partner has a miscarriage as per s.105(1)(c) of the Act.

• (d) Clause 18.3 provides that severance pay in relation to redundancies is not payable where the employer finds suitable alternative employment; however, the provision is not subject to an application under s 120 of the Act.

• (e) Clause 16.3(c) provides that if an Employee fails to give SJWA the required notice or having given, or been given such notice, leaves before the notice expires, the Employee forfeits the entitlement to any monies owing to the Employee under the Agreement except to the extent that those monies exceed the ordinary salary for the remainder of the required period of notice. This may restrict an employee's entitlement to payment of NES entitlements upon termination of employment.

• (f) Clause 32.1(i) provides that on termination, if an Employee has taken more leave than they have accrued, the Employee shall be liable to pay the amount representing the difference including any leave loading paid. Further, it provides that the employer may deduct this amount from monies due to the Employee at the time of termination. This may restrict an employee's entitlement to payment of NES entitlements upon termination of employment.

• (g) Clause 32.2(f) provides that on termination of employment, SJWA may deduct and retain from any outstanding monies the amount in relation to personal/carer's leave taken but not accrued. This may restrict an employee's entitlement to payment of NES entitlements upon termination of employment.

• (h) Clause 32.8 does not specifically state that casuals may have an accrued entitlement to long service leave. Further, clause 32.8(q) appears to provide a lesser entitlement than the entitlement provided by the Long Service Leave Act 1958 (WA) prescribes.

• (i) Clause 32.14(g) provides that approval of family and domestic violence leave pursuant to this clause will be at the discretion of SJWA, taking into consideration the Employee's particular circumstances with regard to family or domestic violence. Sections 106A-107 of the Act do not provide for the discretion of an employer, but rather the evidence requirements are to satisfy a reasonable person that the leave is taken for the purpose specified in s 106B(1)(b), and the requirement specified in s 106B(1)(c) is met.

[113] However, SJWA has provided undertakings to address these issues. Noting these undertakings, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[114] The UWU, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the UWU is covered by the Agreement.

[115] The Agreement was approved on 19 June 2025 and, in accordance with s 54, will operate from 26 June 2025. The nominal expiry date of the Agreement is 26 April 2027.

A Pollock of Counsel, instructed by Kingston Reid for the Applicant.

E Orman and R James for the United Workers' Union.

B Murphy of Counsel, for the Independent Workers' Union of Australia.

[1] Supplementary Witness Statement of Leanne Bott, Digital Court Book (DCB) 338.

[2] First Witness Statement of Leanne Bott, DCB (n 1) 232 [16].

[10] Supplementary Witness Statement of Leanne Bott, DCB (n 1) 324 [35].

[11] First Witness Statement of Leanne Bott, DCB (n 1) 236 [30].

[12] Supplementary Witness Statement of Leanne Bott, DCB (n 1) 324 [36].

[15] Witness Statement of Peta Marshall, DCB (n 1) 311 [21]; Provide First Aid; Provide CPR; Low Voltage Rescue; Provide First Aid in an education and care setting; Advanced Provide First Aid; Provide First Aid in remote or isolated site; Provide advanced resuscitation and oxygen therapy; Occupational First Aid; Manual Handling for Patient Care; Certificate III in Basic Health Care; and Certificate IV in Health Care.

[16] Witness Statement of Peta Marshall, DCB (n 1) 311 [22].

[17] First Witness Statement of Leanne Bott, DCB (n 1) 324 [34].

[18] Witness Statement of Peta Marshall, DCB (n 1) 312 [23]; First Witness Statement of Leanne Bott, DCB (n 1) 236-7 [34].

[19] First Witness Statement of Leanne Bott, DCB (n 1) 236-7 [34].

[26] Regional Express Holdings Limited v Australasian Federation of Air Pilots [2017] HCA 55; (2017) 262 CLR 456 [45]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Elecnor Australia Pty Ltd [2025] FCA 156 [169] (Wigney J).

[28] Commissioner of Taxation v Industrial Equity Ltd (2000) FCA 420; 98 FCR 573 [19] (Hill, Heerey and Hely JJ).

[29] R F Brown & Co Ltd v T and J Harrison (1927) 43 TLR 633 639, applied in King Eeducational Service Pty Ltd v Chief Executive Officer of the Australian Skills Quality Authority (No 3) [2021] FCA 692 [78] (Wheelahan J).

[30] See Trinity College Gawler Inc. v Commissioner of State Taxation [2023] SASC 178 [263]-[278] for summary of case law in that context. In each instance, the terms 'school' or 'college' have been viewed in context, rather than adopting a term of art.

[31] Transcript of Proceedings, Application by St John Western Australia Ltd (Fair Work Commission, AG2024/4702, Lim C, 18 February 2025) PN977.

[33] R v Willians; ex parte Australian Building, Construction Employees' and Builders Labourers' Federation [1982] HCA 68; (1982) 153 CLR 402 408 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); R v Isaac; Ex parte Transport Workers' Union of Australia [1985] HCA 80; (1985) 159 CLR 323 340 (Wilson J).

[34] R v Cohen; Ex parte Motor Accidents Insurance Board [1979] HCA 46; (1979) 141 CLR 577 587 (Mason J); Co-operative Bulk Handling Ltd v Waterside Workers' Federation of Australia [1980] FCA 141; (1980) 49 FLR 355 361-2; Australian Manufacturing Workers' Union v Resmed Limited [2014] FWCFB 3501 [34](2).

[35] R v Aird; ex parte Australian Workers' Union [1973] HCA 53; (1973) 129 CLR 654 659 (Barwick CJ); Re Australian Workers' Union; Ex parte Construction Forestry Mining and Energy Union [2002] FCAFC 150; (2002) 120 FCR 527 [44] (Gray and Moore JJ).

[36] Federated Engine Drivers & Firemen's Union v Mt Newman Mining Co Pty Ltd (1977) 57 WAIG 794 794 (Burt CJ).

[37] Joyce v Christofferson (1990) 26 FCR 261 279 (Gray J), approved in Construction, Forestry, Mining and Energy Union v CSBP Limited [2012] FCAFC 48, 212 IR 206 (CSBP) at [44]-[46].

[38] R v Gough; ex parte Municipal Officers' Association [1975] HCA 30; (1975) 133 CLR 59 69 (Gibbs, Stephen, Mason and Jacobs JJ).

[41] [2018] FWC 6444.

[44] Ibid [38], citing Re Lee; Ex parte Harper [1986] HCA 30; (1986) 65 ALR 577.

[46] Fair Work Act 2009 (Cth) s 48(1).

[47] Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; (2014) 245 IR 449 [22] (Siopis, Buchanan, and Flick JJ).

[48] Re G.J.E Pty Ltd [2013] FWCFB 1705 [18] (Acton SDP, Smith DP, Ryan C).

[50] [2008] NSWCA 348 (Allsop P, Giles and Bell JJA).

[51] [2023] FCAFC 82 (Katzmann, Snaden and Raper JJ).

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