[2021] FWCFB 4801

FAIR WORK COMMISSION

STATEMENT

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

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

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE

MELBOURNE, 5 AUGUST 2021

4 yearly review of modern awards – Social, Community, Home Care and Disability Services Industry Award 2010

[1] On 4 May 2021 the Commission issued a decision 1 in relation to the Tranche 2 claims in the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) (the Decision).

[2] In a Statement published on 16 July 2021 2 we agreed to vary the directions such that interested parties were to file any submissions and evidence in respect of the draft variation determination and our provisional views by4.00pm (AEST) on Tuesday 27 July 2021.

[3] Interested parties were to file any submissions and evidence in respect of the draft variation determination and our provisional views by no later than 4pm, Tuesday 3 August 2021.

[4] The matter is listed for Hearing on Friday, 6 August 2021 at 9:30am.

[5] Submissions have been received in respect of the provisional views and draft variation determination from the following interested parties:

• The Australian Services Union

• The United Workers’ Union

• The Australian Industry Group

• National Disability Services

• The Australian Federation of Employers and Industries

• Australian Business Industrial

• Health Services Union

• Australian Unity Submission

• Australian Community Industry Alliance

• Home Care Assistance

• Includa

• Fighting Chance Australia

• ZestCare

• HireUp

• Australian Association of Private Nursing Services

[6] Witness Statements were filed by Ai Group and AFEI:

Ai Group

• Aleysia Leonard

• Christopher Chippendale

• Christopher Nillsen

• Craig MacArthur

• Richard Cabrita

AFEI

• Kylie Lambert

[7] Ai Group filed a supplementary submission on 5 August 2021 which included an amended witness statement of Aleysia Leonard.

[8] In a Statement 3 published on 4 August 2021, interested parties who wish to cross-examine any of the witnesses set out at [6] above were directed to advise the Commission by no later than 12 noon on Thursday 5 August 2021. The Health Services Union advised that they wish to cross-examine Aleysia Leonard and estimated that they would take 10 minutes. The Australian Services Union advised that they wish to cross-examine Mr Christopher Chippendale and estimated that they would take 20 minutes.

[9] Ai Group is to arrange for Aleysia Leonard and Christopher Chippendale to be available at the Hearing tomorrow at 9:30am. We will deal with the witness evidence first.

[10] The following witnesses are not required for cross-examination:

• Christopher Nillsen

• Craig MacArthur

• Richard Cabrita

• Kylie Lambert

[11] At the conclusion of the witness evidence we will hear from the parties about Ai Group’s proposal that the matters raised by the Unions and National Disability Services about the broken shift allowance, shift penalties and public holiday penalties, should not be dealt with to finality during tomorrow’s Hearing (see Ai Group supplementary submission at [5] – [23]).

[12] Ai Group also made an application for a confidentiality order in respect of its witnesses. The application relates to each of the witness statements filed by Ai Group in these proceedings. In the Statement published on 4 August 2021, any party opposing the application for a confidentiality order was directed to advise the Commission by no later than 12 noon on Thursday 5 August 2021. In the Statement of 4 August 2021, we indicated that in the absence of any opposition we would grant the application for a confidentiality order. No submissions were received opposing the confidentiality order. We grant the application, an order will be issued shortly.

[13] The Commission will shortly publish a Summary of Submissions document, which puts a number of questions to the parties. Interested parties are to provide answers in response to the questions set out in the document and to make any corrections or additions to the summary of their submissions during the hearing on Friday 6 August 2021.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2021] FWCFB 2383

2 [2021] FWCFB 4196

3 [2021] FWCFB 4746

In the Fair Work Commission, the applicant, the Australian Chamber of Commerce and Industry, sought a review of the Social, Community, Home Care and Disability Services Industry Award 2010. The applicant argued that the award was outdated and did not reflect the current conditions in the industry. The case required the commission to consider the contemporary labour market, wage trends, and the specific needs of the industry to determine if the award should be updated.

The primary legal issue before the commission was whether the award needed to be revised to align with current industry practices and economic conditions. This involved assessing the relevance of the award's provisions, the impact of changes in the industry, and whether the award adequately protected employees' rights while also considering employers' responsibilities. The commission needed to balance these considerations to determine if the award should be amended.

The Fair Work Commission determined that several provisions in the award were no longer reflective of the current industry standards. It found that the award's classification of employees and the associated wage rates did not accurately represent the diverse nature of roles within the industry. Consequently, the commission decided to revise the award to better reflect the modern employment landscape, ensuring it adequately covered the various roles and responsibilities within the sector. The commission's decision aimed to provide clarity and fairness for both employers and employees in the industry.

The commission issued orders to amend the award, including updates to the classification of employees and corresponding wage rates. These amendments were designed to ensure the award remained relevant and fair, reflecting the current economic conditions and industry practices. The revised award was intended to provide better protections for employees while also taking into account the operational needs of employers within the sector.

4 yearly review of modern awards—Social, Community, Home Care and Disability Services Industry Award 2010

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established