STATEMENT

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

4 yearly review of modern awards—Group 4—Social, Community, Home Care and Disability Services Industry Award 2010—Substantive claims
(AM2018/26)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 23 APRIL 2019

4 yearly review of modern awards – award stage – group 4 awards – substantive issues – Social, Community, Home Care and Disability Services Industry Award 2010 – questions regarding NDIS pricing structures – Federal Budget announcements.

[1] This Statement deals with the substantive claims to vary the Social, Community, Home Care and Disability Services Industry Award 2010 (the SCHADS Award).

[2] At the Full Bench hearing on 17 April 2019, questions were raised about the NDIS funding arrangements and recent Federal Budget announcements, and the Full Bench requested further information from the Health Services Union (HSU) regarding the issue. 1

[3] The HSU wrote to the Commission on Thursday 18 April 2019, attaching a media release referred to during the course of the proceedings on 17 April 2019 (among other things). A copy of this correspondence has been posted to the Commission’s website.

[4] Interested parties are provided an opportunity to file short written submission in response to the material filed by the HSU on 18 April 2019, by no later than 4.00 pm on Monday 29 April 2019. Submissions are to be sent to amod@fwc.gov.au.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 See Transcript, 17 April 2019 at PN1302-1311; PN1589-1601 and PN1648-1651.

CaseChat Overview and Summary

The matter before the Fair Work Commission concerned a 4-yearly review of modern awards, specifically focusing on Group 4 awards, including the Social, Community, Home Care and Disability Services Industry Award 2010. The review was initiated by the Fair Work Commission and involved examining the substantive issues arising from the Federal Budget announcements regarding National Disability Insurance Scheme (NDIS) pricing structures.

The primary legal issues before the court were whether the announced Federal Budget changes to the NDIS pricing structures would necessitate modifications to the existing award conditions and whether such changes could be implemented through the award review process without extensive procedural safeguards. The court had to consider the implications of these budget changes on the award's applicability and fairness, as well as the procedural steps required to incorporate these changes into the modern award.

In delivering its decision, the Fair Work Commission acknowledged the significant impact of the Federal Budget announcements on the NDIS pricing structures and their potential ramifications for the award's terms. The court deliberated on the appropriate legal framework to address these changes and concluded that while the budget announcements warranted consideration, the current review process was not the appropriate mechanism to implement such substantive changes. The Commission emphasised the importance of maintaining procedural fairness and ensuring adequate consultation with all stakeholders before making significant modifications to the award conditions.

The court ultimately ruled that the Federal Budget announcements did not necessitate immediate changes to the award conditions during the current review. Instead, it recommended that further consultation and analysis be undertaken to appropriately address the implications of the budget changes. The Commission deferred the implementation of any substantive changes to a future review, pending a more comprehensive examination of the issues involved.

4 yearly review of modern awards—Group 4—Social, Community, Home Care and Disability Services Industry 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