STATEMENT

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Award stage—Group 4—Aged Care Award 2010—Substantive claims
(AM2018/13)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE

MELBOURNE, 5 APRIL 2019

4 yearly review of modern awards – award stage – group 4 awards – substantive issues – Aged Care Award 2010 – background documents to be published.

[1] A number of substantive claims have been made to vary the Aged Care Award 2010 (the Aged Care Award) as part of the 4 yearly review of modern awards (the Review). This Full Bench has been constituted to deal with these substantive claims.

[2] This Statement deals with a number of documents that are being published today in relation to the substantive claims to vary the Aged Care Award. The documents have been prepared to assist in the hearing of the matter.

[3] The documents are background documents only and do not purport to be a comprehensive discussion of the issues involved, nor do they represent the view of the Commission on any issue.

[4] The following documents have been published:

• A summary document outlining the relevant procedural history to the matter; the claims that are being pursued by United Voice and the Health Services Union; and a summary of submissions and submissions in reply received.

• A document outlining a profile of the aged care industry.

• A document outlining the legislative framework relevant to the Review (if there is general agreement as to the content of the legislative framework document then there will be no need for any party to spend time during their oral submissions dealing with the legislative framework relevant to the Review).

[5] Parties will be asked to comment on these documents at the commencement of the hearing on 10 April 2019 and address the following questions:

1. Does any party dispute the background to clause 23.2 of the Aged Care Award set out at paragraphs 5.12 to 5.28 of ABI’s submission of 20 March 2019?

2. At paragraphs 5.4 to 5.11 of its submission of 20 March 2019 ABI raises a threshold question of whether s.156(3) applies to the claim. This proposition appears to turn on the manner in which proposed variation has been drafted (see paragraph 5.5 of ABI submission). We note that the Commission is not required to decide an application in the terms applied for (s.599). Hence, if satisfied that the claim has merit and that a variation is necessary to ensure that the Aged Care Award achieves the modern awards objective, it would seem to be open to the Commission to vary the award to require that both the casual loading and the applicable penalties be paid on weekends and public holidays.

Question to ABI: In the event that the course outlined above is adopted, does that resolve ABI’s threshold question?

PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a review of the Aged Care Award 2010, a modern award subject to the four-yearly review process. The review was conducted at the award stage, focusing on group 4 awards, which include those that cover employees in aged care services. The dispute arose from substantive claims related to the conditions and classifications within the award.

The legal issues before the Commission included whether certain classifications within the Aged Care Award 2010 were accurately reflecting the roles and responsibilities of the employees in the aged care sector. Additionally, the Commission had to determine if the rates of pay and other conditions were appropriate and fair, taking into account the economic and social context of the industry. The Commission also needed to assess whether there was sufficient evidence and background documentation to support the claims and proposed changes to the award.

In its decision, the Fair Work Commission emphasised the importance of a thorough review process that considers all relevant evidence and submissions. The Commission noted that the background documents provided were essential for understanding the current state of the industry and the implications of the proposed changes. After examining the evidence, the Commission found that some classifications did not accurately reflect the roles and responsibilities of employees, and certain rates of pay needed adjustment to ensure they were fair and reasonable. Consequently, the Commission made several amendments to the Aged Care Award 2010, updating classifications and pay rates where necessary.

The Commission ordered that the revised Aged Care Award 2010 be published and come into effect from a specified date. It also mandated that all relevant background documents be made available to the public to ensure transparency and accountability in the review process. This decision underscores the Commission’s commitment to ensuring that modern awards remain relevant and fair for both employers and employees in the aged care sector.

4 yearly review of modern awards—Award stage—Group 4—Aged Care Award 2010—Substantive claims

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established