2024 WAIRC 00300
INTERPRETATION OF THE CRISIS ASSISTANCE, SUPPORTED HOUSING INDUSTRY – WESTERN AUSTRALIAN INTERIM AWARD 2011

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00300

CORAM
: SENIOR COMMISSIONER R COSENTINO

HEARD
:
THURSDAY, 28 MARCH 2024, WRITTEN SUBMISSIONS: THURSDAY, 23 MAY 2024, WEDNESDAY, 29 MAY 2024

DELIVERED : THURSDAY, 13 JUNE 2024

FILE NO. : APPL 76 OF 2023

BETWEEN
:
AGENCIES FOR SOUTH WEST ACCOMMODATION INC
Applicant

AND

WESTERN AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION OF EMPLOYEES, WUNGENING ABORIGINAL CORPORATION (FORMERLY ABORIGINAL ALCOHOL AND DRUG SERVICE (INC)), GOLDFIELDS WOMEN’S REFUGE ASSOCIATION, THE LUCY SAW CENTRE ASSOCIATION (ALSO KNOWN AS LUCY SAW WOMEN’S REFUGE), NARDINE WIMMIN’S REFUGE INC, PAT THOMAS HOUSE INC (FORMERLY PAT THOMAS MEMORIAL COMMUNITY HOUSE), ORANA HOUSE INC (ALSO KNOWN AS ORANA WOMEN’S REFUGE), SOUTH WEST REFUGE INC, INDIGO JUNCTION INCORPORATED, ZONTA HOUSE REFUGE ASSN INC
Respondents

CatchWords : Industrial Law (WA) – Application for interpretation of an award – Crisis Assistance, Supported Housing Industry – Western Australian Interim Award 2011 – s 46 – Whether the clause contained a drafting error – Whether the clause contained an ambiguous phrase – Meaning of phrase ‘specifically for’ - Whether phrase ‘specially for’ means exclusively for – Correct construction of phrase – Orders issued
Legislation : Industrial Relations Act 1979 (WA)
Labour Relations Reform Act 2002 (WA)
Supported Accommodation Assistance Act 1985 (Cth)
Supported Accommodation Assistance Act 1989 (Cth)
Supported Accommodation Assistance Bill 1989 (Cth)
Result : Declaration made
Award variedd
REPRESENTATION:

Counsel:
APPLICANT : MR S PACK OF COUNSEL, MS R FRANCIS OF COUNSEL
RESPONDENT : MR C FOGLIANI OF COUNSEL
Solicitors:
APPLICANT : MINTERELLISON
RESPONDENT : FOGLIANI LAWYERS

Case(s) referred to in reasons:
Australian Social Welfare Union and Anglicare Tasmania & Ors [1993] CthArbRp 215; (1993) 2 CAR 384
Charter Reinsurance Co Ltd v Fagan [1997] AC 313
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813
Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; 149 CLR 337
Director General, Department of Education v United Voice WA [2013] WASCA 287
Fedec v The Minister for Corrective Services [2017] WAIRC 828; (2017) 97 WAIG 1595
McCourt v Cranston [2012] WASCA 60
News Corporation Ltd v National Companies and Securities Commission [1984] FCA 446; 5 FCR 88
North West Beef Industries v Australian Meat Industry Employees (1984) 64 WAIG 2124
Quasar Resources Pty Ltd v APG Aus No 3 Pty Ltd [2023] WASCA 171
Re Harrison; Ex parte Hames [2015] WASC 247
Short v FW Hercus Pty Ltd [1993] FCA 72; 40 FCR 511
The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830; (2017) 97 WAIG 1689
The Federal Clerks’ Union of Australia Industrial Union of Workers, WA Branch v Cary (1977) 57 WAIG 585
The Shop, Distributive and Allied Employees' Association of Western Australia v Samuel Gance T/A Chemist Warehouse Perth [No 2] [2011] WASCA 76
United Voice WA v Director General, Department of Education [2013] WAIRC 00053; 93 WAIG 80
Western Australian Municipal, Administrative, Clerical and Services Union of Employees v Aboriginal Alcohol and Drug Services (AADS) Inc, Agencies for South West Accommodation Inc., Anglicare [2011] WAIRC 00229; (2011) WAIG 516
Case(s) also cited:
Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896
Nurses (South Australia) Award (Interpretation) Case (1981) 48 SAIR (Pt 1) 151
Pickard v. John Heine and Son Limited [1924] HCA 38; (1924) 35 CLR 1
Saraswati v The Queen (1991) 172 CLR 1

Reasons for Decision

1 Agencies for South West Accommodation Inc (AccordWest) has asked the Commission to declare the true meaning of an exemption in the scope clause of the Crisis Assistance, Supported Housing Industry – Western Australian Interim Award 2011 (CASHI Award).
2 The CASHI Award’s scope is set out in cl 4.1. It adopts an industry coverage approach, with reference to the crisis assistance and supported housing industry. Clause 4.2 then sets out four exemptions from the scope.
3 The probed exemption is:
4.2 This award will not apply to those persons employed:
….
(3) in the provision of supported and/or related support services which are specifically for aged, infirm, physically, psychiatrically, or developmentally disabled persons or persons suffering from drug or alcohol addiction, or children under the aged of twelve years.
4 The questions AccordWest poses about the above exemption are:
1. Is the phrase “supported and/or related support services” properly read as “supported housing and/or related support services”?
2. Are services “specifically for… children under the aged [sic] of twelve years” within the meaning of cl 4.2(3) if they are provided to such children in their own right, as opposed to services which are provided to adults or older youths and then, only incidentally, to children under the age of twelve who are the dependents of those adults or older youths?
3. In the alternative to (ii) above, are services “specifically for… children under the aged [sic] of twelve years” within the meaning of cl 4.2(3) if they are predominantly provided to such children, even if they are not exclusively provided to such children?
4. To what extent must a person be employed in the provision of services identified in cl 4.2(3) to fall within the exclusion from the CASHI Award’s coverage? For example, is it sufficient that a not-insignificant component of their duties involves services identified in cl 4.2(3)?
5 The core issue is the breadth of the carve out. Does it mean that an employee engaged in crisis assistance and supported housing services for children both under 12 and over 12 years of age is included in the scope (narrow construction) or exempt from the scope (broad construction)?
6 AccordWest is one of 11 named parties to the CASHI Award. The Western Australian Municipal, Administrative, Clerical and Services Union of Employees (WASU) is the named union party. All of the named parties to the CASHI Award were served with AccordWest’s application. Only AccordWest and WASU (parties), participated in these proceedings.
Awards under the IR Act
7 The CASHI Award was made by order of Commissioner Mayman dated 24 March 2011: Western Australian Municipal, Administrative, Clerical and Services Union of Employees v Aboriginal Alcohol and Drug Services (AADS) Inc, Agencies for South West Accommodation Inc., Anglicare [2011] WAIRC 00229; (2011) 91 WAIG 516, exercising the Commission’s power in s 23(1) of the Industrial Relations Act 1979 (WA) (IR Act).
8 Although the CASHI Award’s title includes the word ‘Interim’ and the decision records the result as ‘Interim award issued’, the application which led to the CASHI Award being made was not proceeded by any other referral of an industrial matter to the Commission for a ‘new award’, such that the CASHI Award could properly be regarded as an interim award under s 36A(2). The application for the CASHI Award was the only relevant industrial matter referred.
9 At the time the CASHI Award was made, s 37(1) of the IR Act was in the following terms:
37. Effect, area and scope of awards
(1) An award has effect according to its terms, but unless and to the extent that those terms expressly provide otherwise it shall, subject to this section —
(a) extend to and bind —
(i) all employees employed in any calling mentioned therein in the industry or industries to which the award applies; and
(ii) all employers employing those employees; and
(b) operate throughout the State, other than in the areas to which section 3(1) applies.
10 Section 37 was, at the time, a common rule provision to the effect that an award shall bind employers and employees engaged in any industry to which the award applies. In effect, unless and to the extent that the award provides otherwise, the award becomes a common rule.
11 The IR Act contains a scheme restricting variations being made to the scope of awards, unless particular steps are taken to ensure those affected by such variations have an opportunity to be heard on them. As his Honour Kenneth Martin J observed in The Shop, Distributive and Allied Employees’ Association of Western Australia v Gance (t/a Chemist Warehouse Perth) (No 2) [2021] WASCA 76 at [188], the IR Act is protective, careful and cautious about permitting variations to the scope of award coverage ‘for very good reason’ namely that the expansion or contraction to scope has significant knock-on consequences:
Multiple rights, obligations and interests of persons both see and unseen stand to be affected by such changes. Accordingly, any change in award scope brought about by the Commission must first surmount some onerous gateway pre-requisites.
12 The present application is not one which seeks any variation to the CASHI Award’s scope. It is an application under section 46 which says:
46. Interpretation of awards and orders by Commission
(1) At any time while an award is in force under this Act the Commission may, on the application of any employer, organisation, or association bound by the award —
(a) declare the true interpretation of the award; and
(b) where that declaration so requires, by order vary any provision of the award for the purpose of remedying any defect in, or giving fuller effect to, the provision.
(2) A declaration under this section may be made in the Commission’s reasons for decision but must be made in the form of an order if, within 7 days of the handing down of the Commission’s reasons for decision, any organisation, association, or employer bound by the award so requests.
(3) Subject to this Act, a declaration made under this section is binding on all courts and all persons with respect to the matter the subject of the declaration.
(4) Section 35 does not apply to or in relation to this section unless an order is made under subsection (1)(b) or under subsection (2).
(5) In this section award includes an order, including a General Order, made by the Commission under any provision of this Act other than this section and an industrial agreement.
13 Because the clause which is the subject of these proceedings is a scope clause, the exercise of powers under s 46 should be approached cautiously, and perhaps conservatively. Any declaration that I make in these proceedings will be binding on all courts and all persons, including in the enforcement of the CASHI Award by or against persons who are not parties to the CASHI Award, nor parties to these proceedings.
Principles in s 46 applications
14 Her Honour Acting President Smith summarised the nature and purpose of s 46 in The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830; (2017) 97 WAIG 1689 at [100] (ARTBU):
From the authorities referred to above and the express provisions of s 46 and s 83 of the Act, the following principles emerge in respect of an award as defined in s 46(5):
(a) The power to interpret the true meaning of an award, pursuant to the power conferred by s 46, is to enable a determination of whether ambiguity arises and to resolve it, if it does.
(b) If a provision in question is capable in the ordinary sense of not having an ambiguous meaning, then consideration of the expressed or supposed intention of the provision does not fall to be considered under s 46.
(c) If a provision is found to be ambiguous, the Commission acting pursuant to s 46 can embark upon a factfinding exercise to determine the surrounding circumstances that existed when the award or industrial agreement was made. These surrounding circumstances can include ascertaining the object of the provision by:
(i) inquiring into the history of the award;
(ii) any established custom, practice or usage which led to the making of the award and any relevant established custom, usage and practice since the award was made.
(d) If ambiguity is found and after ascertaining the true meaning of the award and declaring its effect it is found the words in the provision in question are defective, in that the words do not put into effect or reflect that meaning or it is found that the words used require amendment to give fuller effect to the true meaning, the Commission is authorised to exercise arbitral power to amend the provision.
(e) The power to interpret an award or industrial agreement pursuant to s 46 of the Act is, except for the power to amend a provision in s 46(1)(b), merely declaratory and any declaration made cannot be made as an order to enforce a right.
(f) The determination of whether a particular employee has an entitlement pursuant to the provisions of an award is an enforcement matter in relation to which the Industrial Magistrate has exclusive jurisdiction to determine, pursuant to the power conferred by s 83 of the Act.
15 The relevant principles for construction of an award were set out in Re Harrison; Ex parte Hames [2015] WASC 247 at [50] and Fedec v The Minister for Corrective Services [2017] WAIRC 828; (2017) 97 WAIG 1595 at [21]-[23]. The primary task is to determine the objective intention of the parties as expressed in the test of the award, having regard to its context. The industrial context may be relevant to construction.
Facts giving rise to this application
16 Other than AccordWest, the employer parties to the CASHI Award are all organisations who operated refuges for women escaping family and domestic violence.
17 At the time the CASHI Award was made, AccordWest did not operate women’s refuge services as such, but it operated leased properties for youth crisis accommodation, adult crisis accommodation and adult transitional accommodation services. It also provided private tenancy support services, public tenancy support services and reintegration support services: Witness Statement of Michael Thomas King filed on 2 February 2024 (King Statement) at [5], [11]-[14].
18 For example, one of AccordWest’s crisis accommodation services operating when the CASHI Award was made was Bunyap House in Bunbury – a youth crisis accommodation service for teens and young adults up to 24 years of age, with a target group of 14 to 15 year old children: King Statement at [8]; Witness Statement of Kym Maree Singleton filed on 2 February 2024 (Singleton Statement) at [27]-[28].
19 At the same time, AccordWest also provided out of home care services for children under State guardianship orders. It operated Family Group Homes in the Peel/South Metropolitan area: Singleton Statement at [20]. Family Group Homes are homes where children who are in State care are placed on a transitional or semi-permanent basis (usually for two to up to five years), while other placement options are sought for them. A Family Group Home can accommodate up to four children in one house. This enabled siblings to be placed together in one home, which was the preferred approach: Singleton Statement at [11]-[12].
20 In Family Group Homes, children under 12 years of age were often accommodated with children who were over 12 years of age. Indeed, the age of the children was not a qualifier for a placement.
21 AccordWest employed youth workers who cared for the children in Family Group Homes on shifts covering 24 hours a day, seven days of the week. Their care involved supervision, school drop-offs and pick-ups, meal preparation, taking children to sporting and various appointments, and teaching simple life skills. The care was the same irrespective of the children’s age: Singleton Statement at [11]-[15].
22 At other points in time since the CASHI Award was made, AccordWest operated District Care Houses and Specialised Foster Care Services. District Care Houses were ‘primarily’ for children aged up to 12 years with low to moderate needs, although exceptionally children over that age were accommodated by agreement with the Department of Communities, and assessed on a case-by-case basis: Singelton Statement at [10].
23 Specialised Foster Care services involved one-on-one care to children with higher needs: Singleton Statement at [16]-[17].
24 The nature of AccordWest’s operations is such that it engages employees who work in the provision of the above services for children up to and over 12 years of age.
Issue 1: meaning of ‘supported and/or related support services’
25 AccordWest and WASU agree that the phrase ‘supported and/or related support services’ in cl 4.2(3) is nonsensical. The word ‘related’ has no meaning as there is nothing for it to attach to. It is apparent on its face that a word has been omitted from the phrase.
26 AccordWest says the omitted word is ‘housing’. WASU says the omitted word is ‘accommodation’. WASU did not press strongly for ‘accommodation’ over ‘housing’, conceding that it was unclear whether any practical difference resulted from one or the other word being added.
27 In any event, given there is a constructional choice, I must make it. In doing so, it is permissible to look to the industrial instrument’s origins and its pre-curser instruments. However, the first step should always be to look to the text of the instrument itself.
28 The parties accurately noted that cl 4.2(3) is identical to cl 5.2.2 of the federal Crisis Assistance, Supported Housing Industry – Western Australian Award 1997 (1997 Federal Award), including the clause’s erroneous omission of a word, and its erroneous reference to ‘aged’ instead of ‘age’.
29 It is uncontroversial that the purpose of the CASHI Award was to continue the terms and conditions of the 1997 Federal Award at the time when employers who were not constitutional corporations and their employees were transitioning from the federal industrial relations system to the state industrial relations system. This is apparent from the transcript of the proceedings before Commissioner Mayman of 11 March 2011 which resulted in the CASHI Award being made: Witness Statement of Simon Bibby filed on 2 February 2024 at Annexure SB1.
30 However, WASU say that I should look back to an even earlier pre-curser instrument, the Crisis Assistance, Supported Housing Award 1991 (1991 Federal Award), where a similar exclusion clause appears in clause 2.2(b) using the phrase ‘supported accommodation and/or related support services’. WASU observes that the use of the word ‘accommodation’ reflects the wording the Federal Parliament used in:
1. s 5 of; and
2. cls 6, 7, and 8 of the Schedule to the Supported Accommodation Assistance Act 1985 (Cth) (SAA Act).
31 These observations are accurate, although I note that by 1991, the phrase ‘supported housing’ was used in relation to the Supported Accommodation Assistance Program, for example in the Explanatory Memorandum to the Supported Accommodation Assistance Bill 1989 (Cth) and the title to the 1991 Federal Award.
32 So, while WASU’s observations are accurate, they are only a little instructive, and are not conclusive. I give them limited weight in the construction exercise, in the face of the words used in the CASHI Award itself.
33 The CASHI Award’s text is more instructive. It does not use ‘accommodation’ elsewhere in its text (other than the parties’ names). Both the title and scope clauses use the phrase ‘supported housing industry’.
34 On the basis of the CASHI Award’s text, I conclude that the missing word in cl 4.2(3) is ‘housing’.
35 I will make an order that the CASHI Award be varied accordingly to remedy the defect in the provision.
Issues 2 and 3: meaning of ‘…services which are specifically for …children under the aged [sic] of twelve years’
36 AccordWest’s position is that the phrase ‘specifically for’ is ambiguous on its face, and that it is therefore permissible to have regard to the history of the CASHI Award to resolve the ambiguity.
37 AccordWest says in the alternative, that I can have regard to the history of the CASHI Award to determine whether there is ambiguity.
38 It relies in this regard on the frequently cited extract about construction of awards from City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [53], where French J cites Short v FW Hercus Pty Ltd [1993] FCA 72; (1993) 40 FCR 511 at 518:

The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘… the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘… ideas that gave rise to an expression in a document from which it has been taken’ – Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).
39 WASU says there is no ambiguity. It says the meaning of services ‘specifically for children’ under the age of 12 years is plain, and that beyond the plain meaning, the question of whether a particular employee is employed in the relevant capacity is a matter of fact.
40 WASU says that the Full Bench and Industrial Appeal Court authority takes a different approach to that described by French J, whereby only if the provision in question is not capable in the ordinary sense of having an unambiguous meaning, can the Commission resort to extrinsic material. It relies on ARTBU at [83] and Olney J’s statement in North West Beef Industries v Australian Meat Industry Employees (1984) 64 WAIG 2124 at 2133:
If the contrary were the case every employer, union official and indeed each employee would need to have available to him the expressed views of the award making tribunal whether they be expressed before or after the making of the award in order to determine the intention of the tribunal whilst the award itself would be rendered meaningless.
41 I do not need to decide whether it is permissible for me to look at the history of the CASHI Award without first identifying ambiguity, because I have concluded that ambiguity is raised on the face of the exemption clause.
Is there ambiguity?
42 ‘Ambiguity’ is often used as shorthand for what Mason J famously said in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; 149 CLR 337:
The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. (emphasis added)
43 In McCourt v Cranston [2012] WASCA 60 at [24], Pullin JA, with whom Newnes JA agreed, suggested that Mason J’s whole expression might just mean ‘difficult to understand’:
Usually, the meaning of ‘ambiguous’ is taken to include ‘open to various interpretations’: see Macquarie Dictionary, but by using the phrase ‘ambiguous or susceptible of more than one meaning’ perhaps Mason J wished to emphasise that not only a contract open to more than one meaning would allow in evidence of surrounding circumstances but also one where the contract is merely ‘difficult to understand’. Once evidence of surrounding circumstances is allowed in, the restrictions on such evidence are clear. Evidence of subjective opinions are not admissible, nor is evidence of negotiations; the surrounding circumstances have to be objective facts and they have to be known to both parties.
44 In his article ‘The ambiguity of ‘ambiguity’ in the construction of contracts’ (2014) 38(2) Australian Bar Review 153 at 156, the Hon Kevin Lindgren AM QC respectfully agrees with this formulation of the ‘ambiguity threshold/gateway’: that it encompasses text which is for any reason doubtful and difficult to understand or uncertain, as well as that which is grammatically ambiguous.
45 While WASU says that ‘specifically’ has a plain meaning, that does not exclude the possibility of the text being uncertain, difficult to understand or susceptible of other meanings. In Quasar Resources Pty Ltd v APG Aus No 3 Pty Ltd [2023] WASCA 171, Lundberg J observed at [203] and following (citations omitted):
203. Where words in an agreement have a natural meaning, which is well understood, the process of interpreting the words may be a straightforward exercise. The task may be achieved through resort to dictionary definitions.
204. However, as Lord Hoffman observed in Charter Reinsurance Co Ltd v Fagan [[1997] AC 313], ‘in some cases the notion of words having a natural meaning is not a very helpful one’. His Lordship explained that, because ‘the meaning of words is so sensitive to syntax and context, the natural meaning of words in one sentence may be quite unnatural in another’.
205. The constructional choice between the competing meanings is not to be simplistically approached in an agreement such as this by resorting to dictionary definitions to identify a suitable meaning of the disputed phrase. The primacy afforded to the grammatical and ordinary meaning of words is tempered by the requirement that words are to be considered in the context in which they are used and by whom they are used…
206. The constructional issues generated by the fact that words may have more than one ordinary meaning or different shades of meaning or connotations that are imprecise in their factual ambit or application, are resolved by reference to the context and purpose in which the words are used. That is, the rights and liabilities of parties under a provision of a contract are determined objectively by reference to its text, context (the entire text of the contract) and purpose…
207. The primary judge accepted that reference may be made to dictionaries for guidance on the meaning of words. The process of construction, however, is concerned with the meaning of documents. In Investors Compensation Scheme Ltd v West Bromwich Building Society [[1998] 1 WLR 896], Lord Hoffman held as follows:
The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean.
46 In Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391, cited in the above extract, Lord Hoffman also said:
Thus a statement that words have a particular natural meaning may mean no more than that in many contexts they will have that meaning. In other contexts, their meaning will be different but no less natural.
47 So, context is key.
48 It is clear enough, that the phrase ‘specifically for’ means the services referred to must be intended to be provided to the categories of people listed in the exemption. It is also clear that the word ‘specifically’ in the phrase ‘specifically for’ has a limiting function. If all that was required was that the services be intended to be provided to those categories of people, the word ‘for’ could be used on its own.
49 The word ‘specifically’ is opposed to something acting ‘generally’ or ‘vaguely’: News Corporation Ltd v National Companies and Securities Commission [1984] FCA 446; (1984) 5 FCR 88.
50 But in what way is ‘specifically’ limiting?
51 WASU says that it means the services must be exclusively for the relevant category of people, so that services which capture the category, but are also for other people, fall outside the exemption.
52 In some contexts, ‘specifically’ might mean exclusively. Take the following sentence, for example:
Division 30 of the Income Tax Assessment Act contains 234 organisations that are specifically listed as holding Deductible Gift Recipient (DGR) status.
53 In this sentence, ‘specifically’ is used as an adverb, qualifying the verb ‘listed’. So, the ordinary meaning is exactly, or precisely. Depending on the context, ‘specifically’ might also mean exclusively, in that only those 234 organisations and no other organisations hold DGR status.
54 However, in the combination of words ‘specifically for’, ‘for’ is not a verb but is a preposition. ‘Specifically’ is not, therefore, an adverb, that can easily be equated with other adverbs with synonymous meanings. In combination with the word ‘for’, ‘specifically’ is more nuanced, and is capable of different shades of meaning, taken from context.
55 For instance, if I wrote a book on the topic of yoga, I could say:
1. I am writing a book specifically for people interested in the history of Kundalini yoga; or
2. I am writing a book specifically for Western Australian accredited yoga instructors; or
3. I am writing a book about yoga specifically for online publication.
56 In each instance, ‘specifically’ has a different role or a different meaning, taken from the context. In the first instance, ‘specifically’ indicates the content of the book with particularity. But the audience is identified only in a general sense, being an audience that it would be practically impossible to ascertain with certainty or exactness.
57 In the second sentence, the target audience is identified with some precision. It is theoretically possible to identify with exactness who the audience is, perhaps by reference to an accreditation register. On the other hand, the sentence conveys nothing of what the book is about beyond the topic of yoga.
58 In the third sentence, one possible meaning is that the book will only be published online. Here, ‘specifically’ could be equated with ‘exclusively’. However, it is also possible that it means that the book’s format and content is designed to be published online, but it does not exclude the possibility that a printed edition will follow.
59 Similarly, there are alternative ways the phrase ‘specifically for’ in the exemption clause can function as an indicator of limitation. It is directed at limiting who the supported housing and related services are provided to, but there are different degrees of exactness or precision in identifying the audience which the words might permit, ranging from ‘exclusively’ or ‘only’ those falling strictly within the descriptions, to those who have in the past, currently do or may in the future potentially fit the description. The text of the document itself neither suggests ‘exclusively’ as the only natural and ordinary meaning, nor does it eliminate other available constructional choices.
60 Ambiguity is apparent. It is this ambiguity that I must resolve.
Relevant Context: Agreement’s Text
61 The parties did not place reliance on any particular parts of the CASHI Award’s text in support of their contended for constructions. This is understandable. There is little clue from the text of the CASHI Award itself which assists to resolve the constructional quandary.
62 The default scope in cl 4.1 informs what the cl 4.2 exemptions are intended to do. If something is outside the scope as defined by cl 4.1, then there would be no need for cl 4.2 to create an exemption for it.
63 Clause 4.1 says:
4.1 This award shall apply throughout the state of Western Australia to the crisis assistance and supported housing industry and to:
(1) each employer therein; and
(2) each employee therein who is:
(a) eligible for membership of the Western Australian Municipal, Administrative, Clerical and Services Union of Employees; and
(b) employed in a classification to which this award applies.
64 The reference to eligibility for WASU membership is unrevealing. There is no suggestion that WASU’s eligibility rules, which cover social workers, would confine the scope in cl 4.1 in such a way as to inform the breadth or meaning of the exemptions in cl 4.2.
65 Nor do the classifications confine the CASHI Award’s scope in a way that informs the meaning of the exemptions. The classifications are set out in cl 13. They are described as ‘Community Services Worker’ levels and are defined by reference to indicative responsibilities, job requirements, organisational relationships and extent of authority.
66 Next, one might look to the other exemptions to see if these shed light on the intention of cl 4.2(3). Clause 4.2 provides:
4.2 This award will not apply to those persons employed:
(1) by a national system employer, as defined in the Fair Work Act 2009;
(2) in the industries or industrial pursuits of cleaners, security officers, caretakers, gardeners, laundry employees/or domestic work/domestic employees; nor
(3) in the provision of supported and/or related support services which are specifically for aged, infirm, physically, psychiatrically or developmentally disabled persons or persons suffering from drug or alcohol addiction, or children under the aged of twelve years.
(4) This award does not apply to a person who is in Holy Orders or is a member of a Religious institute unless it is so stated in a written contract of employment between the person and the employer.
67 Again, this context yields little of assistance. The reason for the carve-out contained in cl 4.2(1) is of a different nature to the balance of cl 4.2, being an exemption based on the legislative framework of the Fair Work Act 2009 (Cth).
68 The use of the word ‘nor’ only at the end of cl 4.2(2) is curious. But I don’t read anything meaningful into it.
69 Aspects of cl 4.2 that do indicate something of the intention of the drafters are:
1. cl 4.2(2)’s structure; and
2. the way cl 4.2(2) describes the exempt services.
70 As to structure, the clause contains four primary ‘or’ conjunctions: one for the type of service - supported housing or related support services, and three for the recipients of the service:
a. aged, infirm, physically, psychiatrically or developmentally disabled persons or
b. persons suffering from drug or alcohol addiction, or
c. children under the age of 12 years.
71 The clause also contains an ‘and’ conjunction with the three ‘or’ conjunctions for the recipients of the service.
72 This produces a total of nine possible combinations which fall within the exemption.
73 Within these nine exemptions, there are further conjunctions. Other than the children under 12 years category, each other category also contains a conjunctive ‘or’ so that three of the categories could be split into a list of five services captured and three categories could be split into two further categories.
74 The exemption’s breadth is not immediately apparent because of this use of conjunctions within the clause. The use of these conjunctions, rather than using 24 separate exemptions in a list, suggests the clause is intended to give guidance without being overly pedantic or strict in its application.
75 The way the services are described is also telling. The words ‘aged’, ‘infirm’, ‘disabled’ and ‘suffering from’ are all vague. The words used in these examples are such that a service can only be judged as meeting the description in a fairly generalised way. For example, it cannot have been the intention that a service meets the criteria if it provides supported housing to persons who are suffering from drug addiction because they have been using drugs for a period until now, but would not meet the criteria if it also provides supported housing to people who are in drug rehabilitation programs or dealing with withdrawal symptoms. It cannot have been intended that, in order to fall within the exemptions, the services need to meet a strict threshold test.
76 Similarly, the use of the word ‘aged’ does not permit application of a strict cut-off. Supported accommodation cannot be said to be for ‘aged’ by reference to the exact age of all residents, the average age of residents, nor the age of any one resident. Accordingly, it would make no sense to equate ‘specifically for’ with ‘exclusively for’. Services cannot be ‘exclusively for’ the aged, because ‘the aged’ is not a closed or defined category.
77 The structure and language of cl 4.2(2) indicates that the exemption is broad. It applies flexibly. The structure and language are inconsistent with ‘specifically’ being equated with ‘exclusively’.
Surrounding Circumstances: CASHI Award History
78 Both parties refer to the 1991 Federal Award as an early precursor to the CASHI Award. The 1991 Federal Award was made by a decision of Deputy President MacBean of the Australian Industrial Relations Commission (AIRC) under the IR Act in C20563 of 1991.
79 The 1991 Federal Award’s scope was expressed as follows:
2.1 This award shall apply to:
(a) the Australian Social Welfare Union; and
(b) employers listed in schedule A of this award.
in respect of persons eligible to join the ASWU (whether members or not) engaged by any said employer in a service the predominant function of which is the provision of supported accommodation and/or related support services.
(emphasis added)
80 The 1991 Federal Award contained the same exemptions that appear at cl 4.2(b) and (c) of the CASHI Award, and a further exemption for persons engaged as clerks and in clerical work: cl 2.2.
81 The employers listed in the 1991 Federal Award at Schedule A, under the heading ‘Western Australia’ were:
Armadale/Gosnells Women’s Refuge Inc.
Cockburn Youth Service
Goldfields Women’s Refuge Association
Great Southern Shelter Inc.
Headland: Women’s Refuge
Nardine Wimmins Refuge
Narrogin·Women’s Refuge
Orana House Inc.
South West Women's Refuge Inc.
Wanneroo Youth Accommodation Service Incorporated
Women’s Refuge Multicultural Service
Wonthella House Incorporated
Young Single Women's Refuge Inc.
82 While there are employers whose names indicate that their services are for ‘Youth’ there are no employers whose names indicate their services are for ‘children’.
83 AccordWest referred to a decision of Senior Deputy President Hancock of the AIRC in Australian Social Welfare Union and Anglicare Tasmania & Ors [1993] CthArbRp 215; (1993) 2 CAR 384 as relevant history related to the 1991 Federal Award. The decision dealt with several applications in C22760 of 1988 seeking orders that the AIRC refrain from further hearing and determining an industrial dispute initiated by the Australian Social Welfare Union’s service of a log of claims ‘in connection with supported accommodation and/or related support services, including services funded pursuant to the Supported Accommodation Assistance Programme’.
84 The applications for dismissal of the matter, or to refrain from hearing the matter, were made, mostly, on the grounds that the dispute or part of it had been dealt with or should be dealt with by a State industrial authority.
85 In dealing with the applications, and ultimately dismissing them so as to allow the making of a federal award, the Senior Deputy President considered:
1. whether supported accommodation (previously known as crisis assistance) was a distinct sector, severable from the remainder of the social welfare sector; and
2. whether it was desirable for supported accommodation to be the subject of national industrial regulation.
86 In the course of dealing with the first issue, the Senior Deputy President summarised the evidence concerning the nature of supported accommodation and the Commonwealth Government’s Supported Accommodation Assistance Program (SAAP).
87 The Senior Deputy President explained the relevance of SAAP at 8-10:
(i) The Supported Accommodation Assistance Programme
The emergence of supported accommodation as an area of industrial concern, distinct from the remainder of the social welfare sector, stems from the advent of SAAP, which has both increased the size of the sector and affected its form as service providers have sought to qualify for funding.
SAAP began in 1985 as a joint Commonwealth-State scheme directed toward the support of non-governmental and local government providers. A Review of Crisis and Youth Accommodation, published in 1983, had recommended that existing crisis accommodation programs be replaced, the proposed instruments being a Crisis Accommodation Assistance Act and Commonwealth-State agreements committing governments jointly to contribute to the funding. In the event, the term ‘Supported’ was to replace ‘Crisis’. According to Ms C J Chesterman, who reviewed SAAP for federal and State governments in a report submitted in 1988 under the title Homes Away from Home, the change from ‘Crisis’ to ‘Supported’ ‘reflected the strong emphasis of those consulted on the need for a longer-term developmental approach to assisting homelessness’. The purpose of SAAP, as defined in the Commonwealth Supported Accommodation Assistance Act 1985, is ‘the provision by non-government organisations or local government, with financial assistance from the Commonwealth and the States, of a range of supported accommodation services and related support services, to assist men, women, young people and their dependents who are permanently homeless, or temporarily homeless as a result of crisis, and who need support to move toward independent living, where possible and appropriate’.
88 The Senior Deputy President noted that service providers who receive SAAP funds do not necessarily confine their activities to those which are SAAP-supported or eligible for SAAP support: at 13. He also observed the diversity of services which fall within the general class of supported accommodation, and the variations in the size, form and models of service providers: at 14.
89 The Senior Deputy President summarised his conclusions at 22:
The evidence leads me to conclude that there are similarities in the work performed within sub-sectors of supported accommodation, such as women’s refuges and youth services, but many fewer between the sub-sectors. There are both similarities and differences between the work performed within the sector and that performed outside it. Overall, it is impossible to discern the sector as a discrete area of work. The activities of workers in supported accommodation do not of themselves warrant its being separated out for industrial regulation different from that of the remainder of the social welfare industry. Any separation needs to be otherwise justified.
90 Despite this conclusion, and his expressed reservations about the consequences of separating supported accommodation from other sectors of social welfare, the Senior Deputy President dismissed the applications because the national character of SAAP, and so the supported accommodation sector, was such that federal industrial regulation was justified, and coherence was desirable: 59, 68, 69.
91 Relying on the decision of Senior Deputy President Hancock, AccordWest says at [58] of its written submissions:
Although no recorded decision of the final making of the [1991 Federal] Award has been located, it is apparent that it has in substance adopted the exclusion advanced by the ASWU [in the C22760 of 1988 proceedings] on the basis that the SAAP had created a coherent sub-industry. In other words, the exclusion appears intended to ensure only those services operating in the area defined by the SAAP are captured by the [1991 Federal] Award, which included children under 12 only to the extent they were dependents of those eligible for the SAAP. It did not include those services catering to children under 12 in their own right.
92 This conclusion does not accurately reflect the history or Senior Deputy President Hancock’s reasons. First, whether SAAP had created a coherent sub-industry was a matter of contention between the parties in the proceedings before the Senior Deputy President. Senior Deputy President Hancock was not persuaded that SAAP did create a coherent sub-industry.
93 Second, at the time the Senior Deputy President was deciding, SAAP’s scope did not refer to children under 12 years. The program was described as not providing services ‘exclusively for….children under 16 years’: see Australian Social Welfare Union and Anglicare Tasmania & Ors at 10.
94 Finally, and in any event, the proceedings before Senior Deputy President Hancock appear unrelated to the application before Deputy President MacBean which resulted in the 1991 Federal Award. As WASU points out, the award made by Deputy President MacBean did not apply to the respondents to the matter C22760 of 1988.
95 WASU nevertheless accepted that the 1991 Federal Award was ‘linked to’ the SAAP scheme as it existed at the time the award was made, and that the terminology used in the 1991 Federal Award reflects the terminology used in the SAA Act. This much is evident from the terminology used in the 1991 Federal Award’s scope clause, particularly its title and its reference to ‘supported accommodation’ in its scope clause. Self-evidently, the purpose of the 1991 Federal Award was to capture employees employed in supported accommodation and related services within SAAP’s scope, but not to capture the social welfare sector more generally.
96 Additionally, the 1991 Federal Award’s exemptions were designed for a scope clause that covered named employers, whose operations may have involved activities beyond supported accommodation services.
97 The 1997 Federal Award’s scope clause, cl 5.1, limited its coverage to:
… persons eligible to join the Australian, Municipal, Administrative, Clerical and Services Union (whether members or not) who are employed by the employers listed in Schedule A- Respondency.
98 Schedule A named 43 employers. One of the ‘named employers’ was Bunyap Inc, described at [17] of these reasons. Otherwise, there is no evidence before me as to the activities of the named employers. There is no reason to doubt they were employers who operated services with the predominant function of providing supported accommodation and/or related support services. Many have reference to supported accommodation, refuge or shelter in their title. Equally, they may have provided other services.
99 The 1997 Federal Award did not define its scope by express reference to the provision of supported accommodation or any other described services. It did list exemptions from its scope, being in substance the same as the exemptions in the 1991 Federal Award.
100 While the exemption clause of the CASHI Award was copied wholesale from the 1997 Federal Award, without any alterations, the main scope clause was not. As the CASHI Award was to operate as a common rule award in the state system, its scope cl 4.1 referred to the ‘crisis assistance and supported housing industry’ reflecting the 1997 Federal Award’s title.
101 I note that while the 1991 Federal Award and 1997 Federal Award both refer to ‘crisis assistance and supported housing’ in their titles, only the 1997 Federal Award refers to ‘crisis assistance and supported housing’ as an industry and neither define their scope by reference to an ‘industry’ expressed as such.
102 The intention in making the CASHI Award was to make a new common rule award, but with a scope capturing only the activities of the employers covered by the 1997 Federal Award within the 1997 Federal Award’s scope. In this context, the term ‘crisis assistance and supported housing industry’ as used in the scope clause of the CASHI Award means:
a. the sub-sector of the social welfare sector comprising employers whose predominant function is the provision of supported accommodation and/or related support services; and
b. where ‘supported accommodation and/or related support services’ has the same meaning that those terms have in the relevant legislation enabling SAAP funding.
103 To understand the purpose and meaning of the exemption, it is important to first understand what is within the CASHI Award’s scope cl 4.1, as described in the previous paragraph. For this, further context about SAAP is needed.
Industrial Context and the Surrounding Circumstances – Supported Accommodation Assistance Program
104 The SAA Act was enacted to give effect to funding agreements entered into between the Commonwealth and any State or States, such agreements being substantially in accordance with the form of the Schedule to the SAA Act (1985 Funding Agreement).
105 The 1985 Funding Agreement described SAAP as comprising the following sub-programs:
PART IV—PROGRAMS, SUB-PROGRAMS AND SERVICES

7. For the purpose of this agreement, a State shall establish and administer a Supported Accommodation Assistance Program comprising the following sub-programs—
(a) a General Supported Accommodation Sub-program, being a sub-program for the provision by non-government organisations or local governments of supported accommodation and related support services for men, women and their dependants who are permanently homeless, or temporarily homeless as a result of crisis, and who need support to move towards independent living, where possible and appropriate;
(b) a Women’s Emergency Services Sub-program, being a sub-program for the provision by non-government organisations or local governments of supported accommodation and related support services for women and women with dependent children escaping from intolerable domestic circumstances or other crisis situations who need support to move towards independent living, where possible and appropriate; and
(c) a Youth Supported Accommodation Sub-program, being a sub-program for the provision by non-government organisations or local governments of supported accommodation and related support services for persons of not less than 12 years of age nor more than 25 years of age and their dependants who are homeless as a result of crisis and who need support to move towards more appropriate accommodation, including independent living where possible and appropriate.
(emphasis added)
106 The program established in 1985 was replaced in 1989 by the Supported Accommodation Assistance Act 1989 (Cth) (1989 SAA Act). The 1989 SAA Act again set out the funding agreement in the form of a Schedule to the Act (1989 Funding Agreement).
107 The 1989 Funding Agreement defined both ‘supported accommodation service’ and ‘related support services’ as ‘a service of the type provided for in clause 6 [covering the scope of the program]’: cl 3. Clause 6 ‘Scope of Program’ said:
Scope of Program
6 (1) The program shall:
(a) be focused on transitional support through a range of service models designed to be of varying duration, type and level of support for individuals who are homeless and in crisis;
(b) include a range of innovative accommodation and nonaccommodation service models (eligibility of services will be determined according to the eligibility of target groups rather than according to service models);
(c) include services designed to meet the needs of women and women with children who are homeless and/or in crisis as a result of domestic violence;
(d) include services designed to meet the needs of, and provide equitable access for, Aboriginal people and people from non Englishspeaking backgrounds; and
(e) include services for chronically homeless people.
6 (2) The program shall not:
(a) provide services with a specialist clinical or treatment focus such as those which may be required by people suffering psychiatric or other illness or from substance abuse;
(b) provide services exclusively for veterans, people leaving prisons, students, people with disabilities, children under 16 years, the frail aged or other groups as agreed jointly by Ministers;
(c) replace or duplicate services and assistance already provided by, or which are the responsibility of, other government programs or services such as substitute care;
(d) provide services whose primary focus is housing or housing information and referral services;
(e) provide services whose primary focus is on prevention of household breakdown or housing crisis; or
(f) provide services where assistance depends upon undergoing rehabilitation.
6 (3) For the purposes of paragraph 6 (2) (b) ‘exclusively’ means services available only to a particular group.
6 (4) A service which was funded under the former Supported Accommodation Assistance Program immediately prior to the commencement of this Agreement but which is not otherwise within the scope of the program:
(a) will be transferred to a more appropriate funding source where this is possible; or
(b) where it is not possible to transfer the service to a more appropriate funding source, the service will be deemed to be within the scope of the program for the purposes of being eligible to receive funds for indexation and program upgrading but will not be eligible to receive funds for new or expanded services unless such services are within the scope of the program.
Target Groups
6 (5) Program funds shall be allocated within the State on a needs basis and with reference to priorities identified in the Commonwealth/State plan and agreed by the Commonwealth and State Minister. The main groups to be targeted may include:
(a) young people;
(b) women and women with children who are homeless and/or in crisis as a result of domestic violence;
(c) families, including single parent families;
(d) single men; and
(e) single women.
(emphasis added)
108 The 1989 Funding Agreement defines ‘young people’ as not including persons under 16: cl 3.
109 Between 1985 and 1989:
a. the youth services which were the focus of the SAAP program had shifted from persons ‘not less than 12 years of age nor more than 25 years of age and their dependents who are homeless as a result of crisis’, to ‘young people’ meaning people over 16 years; and
b. exclusions were added to the 1989 Funding Agreement at cl 6(2).
110 The 1989 Funding Agreement’s exclusions are services that are provided ‘exclusively’ for ‘veterans, people leaving prisons, students, people with disabilities, children under 16 years, the frail aged or other groups as agreed jointly by Ministers’.
111 The words ‘supported accommodation’ in the 1991 Federal Award have the same meaning as ‘supported accommodation’ in the relevant SAAP legislation enabling SAAP funding. The 1989 SAAP Act is the legislation that was in operation when the 1991 Federal Award was made.
112 It follows that the reference in the 1991 Federal Award’s scope clause to ‘supported accommodation and/or related support services’ means services within the scope of cl 6(1) of the 1989 Funding Agreement but does not include services excluded from the program’s scope in cl 6(2).
113 Accordingly, services described in cl 6(2) of the 1989 Funding Agreement are not ‘supported accommodation’ services and they are not within the 1991 Federal Award’s scope, regardless of the scope exemptions. For instance, services which are exclusively for children under 16 years are not within the scope of the SAAP program, and therefore not within the 1991 Federal Award’s scope. Nor are services exclusively for veterans, people leaving prison, students, etc.
114 This is relevant to the construction of the exemption clause. The exemption clause cannot have been intended to exempt services which would not otherwise be within the award’s scope.
115 I deviate here to make some observations about ‘out of home care’ as part of the broader social welfare sector. AccordWest describes the services it provided for children as ‘out of home care’, not crisis accommodation, refuge, homeless accommodation nor supported accommodation. ‘Out of home care’ is distinct from ‘supported accommodation’ under SAAP.
116 The distinction is demonstrated by the Department of Families, ‘Housing, Community Services and Indigenous Affairs, ‘National Standards for Out of Home Care’, final report, dated July 2010. It describes what is ‘out of home care’ at [1.1]
While there are a range of definitions for Out of Home Care, the Australian Institute of Health and Welfare defines Out of Home Care as ‘alternative accommodation for children under 18 years of age who are unable to live with their parents, where the state or territory makes a financial payment or where a financial payment has been offered but declined’. The Australian Institute of Health and Welfare data does not include children and young people who are living in Out of Home Care outside the child protection system, such as placements made in disability services, medical or psychiatric services, juvenile justice facilities, overnight childcare services or supported accommodation assistance services.
The development of National Standards for Out of Home Care is a key action under the National Framework for Protecting Australia's Children 2009-2020, which was endorsed by the Council of Australian Governments on 3 April 2009.
117 Similarly, the Department of Families, Housing. Community Services and Indigenous Affairs, ‘An outline of National Standards for out-of-home care’, dated July 2011 describes at 3-4:
What is out-of-home care?
Out-of-home care provides alternative accommodation for children and young people who are unable to live with their parents. In most cases, children in out-of-home care are also on a care and protection order.
The Australian Institute of Health and Welfare (AIHW) characterises a number of different living arrangements as out-of-home care:
Foster care – where placement is in the home of a carer who is receiving a payment from a state or territory for caring for a child.
Relative or kinship care – where the caregiver is a family member or a person with a pre-existing relationship to the child.
Family group homes – where placement is in a residential building which is owned by the jurisdiction and which are typically run like family homes, have a limited number of children and are cared for around the clock by resident carers.
Residential care – where placement is in a residential building whose purpose is to provide placements for children and where there are paid staff. This category includes facilities where there are rostered staff and where staff are offsite.
Independent living – such as private boarding arrangements
Out-of-home care plays a significant role in shaping the lives and development of children and young people who experience it. Out-of-home care that is safe and stable can help children and young people recover from the experience of abuse and neglect.
Out-of-home care services are designed to provide a safe environment, contribute to improving developmental outcomes and assist in addressing issues that led to the out-of-home care placement.
118 Children who are provided with out of home care are not homeless, except perhaps if their parent(s) are homeless. They do not go into out of home care because they are homeless. Rather, they are removed from their homes for their safety, to be cared for under alternative care arrangements.
119 SAAP is not directed to out of home care services. Such services are not within SAAP’s scope as they are not a service of the type provided for in cl 6 of the 1989 Funding Agreement. Accordingly, out of home care services would not fall within the 1991 Federal Award scope’s description of services covered, that is, services the predominant function of which is the provision of supported accommodation and/or related support services.
120 On the other hand, youth accommodation services are within the SAAP scope. The Australian Human Rights Commission’s ‘National Inquiry into Youth Homelessness’ published in 1987 (AHCR Report), describes the Youth Supported Accommodation Program funded under SAAP program as designed ‘to assist the young person to stabilise his/her living pattern’: [15.1]. It refers to many of the funded services as ‘refuges’ and provides examples of young people becoming homeless as a result of conflict with their families, adolescent pregnancy or other events in their lives.
121 If out of home care services are outside SAAP and so not included in the 1991 Federal Award’s scope, what, then, is the purpose of the exemption clause?
122 If services that are exclusively for the frail, aged, children under 16 years and specialist clinical or treatment services such as those which may be required by people suffering from psychiatric illness or substance abuse are not within the scope of cl 4.1 because they are not ‘supported accommodation services’, then cl 4.2(c) must be intended to further extend the services which are exempt from the scope.
123 This explains why the exemption clause does not exactly replicate the words used in the exclusions under the 1989 Funding Agreement, which the parties and the AIRC are taken to have known at the time the 1991 Federal Award was made. Most notably, the exemption clause does not replicate the Funding Agreement’s use of the word ‘exclusively’. I must assume that the words that were settled upon in the award were deliberately chosen having close regard to the SAAP framework and scope. The exemptions are directed to services which might have otherwise fallen within the SAAP scope.
124 This is consistent with the textual indications of a broad construction. The exemption clause ought not be read strictly, or pedantically. Nor should ‘specifically for’ be equated with ‘exclusively for’. Its meaning is more like ‘targeted towards’, ‘suited to’, ‘aimed at’ or ‘focused on’.
125 AccordWest posed the question at [6(b)] of its written submissions:
Are services ‘specifically for… children under the aged [sic] of twelve years’ within the meaning of clause 4.2(3) if they are provided to such children in their own right, as opposed to services which are provided to adults or older youths and then, only incidentally, to children under the age of twelve who are the dependents of those adults or older youths? (Question 2).
126 The question is essentially inviting me to declare that the relevant exemption means supported accommodated and related support services provided to children under the age of 12 as such.
127 AccordWest poses the alternative question at [6(c)]:
… are services ‘specifically for… children under the aged [sic] of twelve years’ within the meaning of clause 4.2(3) if they are predominantly provided to such children, even if they are not exclusively provided to such children’? (Question 3).
128 This question is essentially inviting me to declare that the relevant exemption means supported accommodation and related support services provided predominantly to children under the age of 12.
129 Both questions proceed on the basis that out of home care services are ‘supported accommodation and related support services’. They are designed to deal with the perceived need to fit out of home care services within the exemption clause. They are therefore formulated narrowly to ensure that out of home care services are captured by the exemption, but services like women’s refuges are not. AccordWest’s formulations of the exemption are therefore stretched and unnatural.
130 On my analysis, the scope cl 4.1 is narrower than AccordWest have assumed. Out of home care services are not part of the crisis assistance and supported housing industry for the purpose of clause 4.1. Nor are they supported accommodation services for the purpose of clause 4.2(3).
131 Further, AccordWest’s formulation does not tackle the ambiguous phrase ‘specifically for’ in the full sense in which it is used in cl 4.2(3) because it focuses only on ‘children under the age of 12 years’.
132 The true meaning of the phrase ‘specifically for’ in cl 4.2(3) is that the services are targeted towards the group described. It does not mean the services are exclusively for the group described.
Question 4: ‘Employed in the provision of….’
133 AccordWest submits there is ambiguity in the exemption clause’s reference to persons ‘employed in the provision of’ the services listed. It says in its written submissions:
78. There is a spectrum of possible constructions as to the meaning of the second limb of the Exclusion Clause. At one extreme, this limb may mean that if the person’s role involves any amount of qualifying services, they are employed in the provision of such services, and therefore, they are excluded from the Award. At the other extreme, the person’s role must exclusively be in qualifying services for them to fall within the exception.
79. There is a further dimension in that the assessment may be undertaken by reference to a person’s full range of duties (i.e. considering that a youth worker is employed to provide services to children between 0 and 18), or the actual work carried out by them (i.e. considering that the youth worker has for the last month worked in a [Family Group Home] with children all over the age of twelve). The Exclusion Clause is silent as to the inquiry required.
134 AccordWest says that on its proper construction, the phrase operates by reference to an employee’s duties as an employee, not the actual work they do on a particular day or in a particular period, so that an employee whose duties are in the qualifying services are excluded, provided those duties are not an insignificant or trivial aspect of their employment.
135 AccordWest does not seek to justify its construction by reference to text, or relevant contextual considerations. Rather, it refers to the undesirable consequences of an alternative construction that results in a worker falling in and out of award coverage based on what they are doing on a particular day. This approach to the question is telling: it reveals that the quandary is not really about ambiguity or construction. Rather, the quandary is involved at the level of applying the text to a particular factual situation.
136 The words are unambiguous. This form of words, and the wider variation ‘in or in connection with,’ are common in award scope clauses. Whether a person is employed ‘in’ a particular industry, classification or activity depends not only on whether some of the work carried out by them is in the relevant industry or doing the particular activity, but also, on the degree to which that work forms part of the overall duties of the person concerned. The ‘major and substantial employment’ test described by Burt CH in The Federal Clerks’ Union of Australia Industrial Union of Workers, WA Branch v Cary (1977) 57 WAIG 585 is the well-used and often cited approach to answering whether an employee is employed in an activity, industry or classification described in an award. It is essentially a factual enquiry.
137 I agree, then, with WASU’s submission that this question does not seek a declaration as to the true meaning of cl 4.2(3) but instead asks how the clause should be applied. Whether a person falls within the exclusion clause is a question of fact and degree which must be assessed on a case-by-case basis.
Conclusion and Answers to Questions Posed
138 My answers to the questions posed by this application are:
1. Is the phrase ‘supported and/or related support services’ properly read as ‘supported housing and/or related support services’?
YES

2. Are services ‘specifically for… children under the aged [sic] of twelve years’ within the meaning of clause 4.2(3) if they are provided to such children in their own right, as opposed to services which are provided to adults or older youths and then, only incidentally, to children under the age of twelve who are the dependents of those adults or older youths?
I do not equate the words ‘specifically for…. children under the aged of twelve years’ with ‘provided to children under the age of twelve years in their own right’.
On its correct construction, the phrase ‘specifically for’ in clause 4.2(3) means ‘targeted at.’ The phrase does not mean ‘exclusively for.’

3. In the alternative to Question 2, are services ‘specifically for… children under the aged [sic] of twelve years’ within the meaning of clause 4.2(3) if they are predominantly provided to such children, even if they are not exclusively provided to such children’?
I do not equate the words ‘specifically for…. children under the aged of twelve years’ with ‘provided predominantly to children under the age of twelve years’.
On its correct construction, the phrase ‘specifically for’ in clause 4.2(3) means ‘targeted at’. The phrase does not mean ‘exclusively for.’

4. To what extent must a person be employed in the provision of services identified in clause 4.2(3) to fall within the exclusion from the Award’s coverage? For example, is it sufficient that a not-insignificant component of their duties involves services identified in clause 4.2(3)?
Whether a person is employed in the provision of supported housing and/or related support services is a matter of fact and degree which must be assessed on a case-by-case basis.
139 An order will issue varying clause 4.2(3) of the CASHI Award to give effect to the answer to question 1 above. I will make a declaration in accordance with the answers to questions 2 and 3 in the form of an order if any party requests me to do so within seven days of these reasons being handed down.