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

[2019] FWCFB 2324

[2019] FWCFB 2324

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, 8 APRIL 2019

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

[1] A number of substantive claims have been made to vary the Social, Community, Home Care and Disability Services Industry Award 2010 (the SCHADS Award) as part of the 4 yearly review of modern awards (the Review). This Statement deals with a number of issues relating to the substantive claims and the hearing dates which are currently listed for Friday 12 April 2019 with 15, 16, 17 and 18 April 2019 reserved (if necessary).

[2] On 3 April 2019 we issued a Statement 1 addressing correspondence that had been received from the Australian Industry Group (Ai Group) and Australian Business Industrial (ABI). In short, that correspondence dealt with issues around whether or not it would be appropriate to proceed with hearing all of the claims on 12 April 2019. The Statement also provided a list of claims which we considered could be progressed with the current hearing timetable. These matters were dealt with at a Mention before the President at 1.00 pm on 3 April 2019. A transcript of the Mention is available on the Commission’s website.

[3] The following parties attended the Mention:

•  United Voice;

•  Health Services Union (HSU);

•  Ai Group;

•  Australian Services Union (ASU);

•  ABI; and

•  National Disability Services (NDS).

[4] At the Mention 2 the President invited comments from interested parties as to why the claims listed in the Statement could not be heard at the hearing dates that are currently listed. At the conclusion of the Mention, union parties were asked to confirm witness availability and employer parties were asked to confirm which witnesses they sought to cross examine. Correspondence in relation to timetabling and witness availability was received from the ASU, HSU, Ai Group and ABI.

United Voice claims

[5] At the Mention, United Voice confirmed that the following claims could be heard on the currently listed dates:

•  S44A – deletion or variation to 24 hour care clause;

•  S40 – consequential variation to the sleepover clause (arising from the deletion of the 24 hour care clause (S44A));

•  S47 – variation to excursions clause;

•  S51 – variation to overtime clause; and

•  S57 – variation to public holidays clause.

[6] United Voice will not be leading any witness evidence in relation to the above claims.

HSU claims

[7] At the Mention, and in correspondence filed on 5 April 2019, the HSU advised that the following claims could be heard on the currently listed dates:

•  S19 – first aid certificate renewal;

•  S43 – deleting the 24 hours care clause; and

•  S48 – Saturday and Sunday work (casual employees receiving casual loading in addition to Saturday and Sunday rates).

[8] ABI advised the HSU that they wish to cross examine the following witnesses:

1. Mark Farthing

2. James Eddington

3. William Elrick

4. Robert Sheehy

[9] Ai Group advised they wish to cross examine Mark Farthing, and would require approximately 30 minutes for this cross examination.

[10] The HSU confirmed that all of their witnesses are available on Wednesday 17 April 2019, and that it would prefer that its claims be heard on that day. The HSU also request that William Elrick appear via videolink from Melbourne and James Eddington appear via videolink from Hobart.

ASU claims

[11] At the Mention, the ASU advised it is ready to proceed with hearing its claim S6 (community language skills) and will call four witnesses. The ASU advised it had withdrawn claim S7, which relates to coverage.

[12] In correspondence dated 5 April 2019 3 the ASU stated all four witnesses are available on the morning of Tuesday 16 April and that it would prefer to have its evidence heard at that time.

[13] Ai Group confirmed in correspondence dated 8 April 2019 that they intend to cross examine all four ASU witnesses and would require approximately 30 minutes for each. ABI confirmed that they wish to cross examine one ASU witness only, Ms Ruchita.

[14] In relation to the paid travel time claim, the ASU advised in their 5 April correspondence that they support United Voice’s paid travel time claim and they adopt the draft determination filed by United Voice on 1 April 2019. The paid travel time claim is listed as an outstanding claim at Attachment B to this Statement.

Next steps

[15] The listing for Friday 12 April 2019 is vacated.

[16] The matter will be heard at 10.00 am on Monday 15 April 2019, Tuesday 16 April 2019 and Wednesday 17 April 2019 in Sydney. A draft programme for the hearing dates is attached to this Statement (see Attachment A).

[17] Attachment B to this Statement sets out a list of claims that remain outstanding.

[18] Parties will be asked at the telephone Mention listed for 9.30 am Tuesday 9 April 2019 to comment on the draft programming for next week and the accuracy of the list of outstanding claims.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR706645>

Attachment A – Programme for hearing dates: 15–17 April 2019

Monday 15 April 2019

10.00 am

Procedural matters

10.30 am

Submissions relating to United Voice claims:

•  S44A – deletion or variation to 24 hour care clause;

•  S40 – consequential variation to the sleepover clause (arising from the deletion of the 24 hour care clause (S44A));

•  S47 – variation to excursions clause;

•  S51 – variation to overtime clause; and

•  S57 – variation to public holidays clause.

Tuesday 16 April 2019
ASU witnesses
Time	Witness name	Location	Cross examination
9.30 am	Ms Ruchita (VC)	Melbourne (via VC)	Ai Group ABI
10.30 am	Nadia Saleh	Sydney	Ai Group
11.00 am	Natalie Lang	Sydney	Ai Group
11.30 am	Lou Bacchiella	Sydney	Ai Group
ASU submissions
2.00 pm	Submissions relating to ASU claim S6: community language skills

Wednesday 17 April 2019
HSU witnesses
Time	Witness name	Location	Cross examination
9.30 am	Mark Farthing	Sydney	Ai Group ABI
10.30 am	Robert Sheehy	Sydney	ABI
11.00 am	James Eddington	Hobart (via VC)	ABI
11.30 am	William Elrick	Melbourne (via VC)	ABI
HSU submissions
2.00 pm	Submissions relating to HSU claims: •  S19 – first aid certificate renewal; •  S43 – deleting the 24 hours care clause; and •  S48 – Saturday and Sunday work (casual employees receiving casual loading in addition to Saturday and Sunday rates)

Attachment B – List of outstanding claims

United Voice claims:

S2 – variation to ensure the payment of travel time for home care workers

S2A – variation to the clothing and equipment allowance

S3 – variation to the rosters clause

S19A – paid travel time

S21 – variation to telephone allowance

S37 – Broken shifts

S49 – variation to correct a cross-referencing error

Minimum engagements

HSU claims:

S16 – Amendments to various classification criteria

S19 and S20A – Phone allowance, travel allowance and damaged clothing allowance

S22 – On call and recall allowance

S24 – Payment of wages

S28 and S32 – Variation to ordinary hours of work and rostering clauses

S29 – Variation to client cancellation provisions

S35 – Deletion or variation of broken shifts clause

S38 – Amendments to sleepover clause

S45 – Excursions (new entitlement to additional annual leave for employees engaged in excursions)

S50 – Variation to overtime clause

S54 – Variation to shift work clause

ASU claims:

S36 – Variation to broken shifts clause

ABI claims:

S5 – variation to include a ‘remote response payment’

S23 – On call allowance

S25 – ordinary hours of work

S29 – client cancellation

S53 – recall to work overtime

 1   Statement – [2019] FWCFB 2207.

 2   Transcript.

 3   Correspondence, 5 April 2019.