[2021] FWCFB 2383

FAIR WORK COMMISSION

DECISION

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—Substantive claims
(AM2018/26)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE

MELBOURNE, 4 MAY 2021

4 yearly review of modern awards – Award stage – Group 4 Awards – substantive issues – Social, Community, Home Care and Disability Services Industry Award 2010 – Tranche 2.

Chapters		Paragraph
1	Background	[1]
2	Legislative framework	[32]
3	The Reports	[38]
3.1 The May 2020 Cortis Report	[38]
3.2 The Muurlink Report	[141]
3.3 The Stanford Report	[158]
3.4 The Macdonald Article	[187]
4	General findings on the evidence	[211]
5	Working arrangements	[229]
5.1 Overview	[229]
5.2 Minimum engagement claim	[242]
5.3 Broken shifts claims	[392]
5.4 Travel time claims	[557]
5.5 Variations to rosters claims	[590]
5.6 Remote response/recall to work overtime claims	[644]
5.7 Client cancellation claims	[739]
6	Clothing and equipment claims	[843]
7	Overtime for part-time and casuals workers claim	[904]
8	24-hour-care claim	[988]
9	Sleepover claim	[1085]
10	Mobile phone allowance claim	[1127]
11	Community language allowance claim	[1157]
12	Equal Remuneration Order issue	[1235]
13	Next steps	[1261]
ATTACHMENT A: Exhibit List
ATTACHMENT B: List of submissions
ATTACHMENT C: Submissions and evidence – Minimum engagement claim
ATTACHMENT D: Submissions and evidence – Broken shifts claims
ATTACHMENT E: Submissions and evidence – Travel time claims
ATTACHMENT F: Submissions and evidence – Variations to rosters claims
ATTACHMENT G: Submissions and evidence – Remote response/recall to work claims
ATTACHMENT H: Remote response clauses
ATTACHMENT I: Submissions and evidence – Client cancellations claims
ATTACHMENT J: Submissions and evidence – Clothing and equipment claims
ATTACHMENT K: Submissions and evidence – Overtime for part-time and casuals workers claim
ATTACHMENT L: Submissions and evidence – 24-hour-care claim
ATTACHMENT M: Submissions and evidence – Sleepover claim
ATTACHMENT N: Submissions and evidence – Mobile phone allowance claim
ATTACHMENT O: Submissions and evidence – Community language allowance claim
ATTACHMENT P: Draft determination

ABBREVIATIONS

ABI	Australian Business Industrial and the New South Wales Business Chamber, Aged and Community Services Australia and Leading Age Services Australia
Act	Fair Work Act 2009 (Cth)
AFEI	Australian Federation of Employers and Industries
Aged Care Award	Aged Care Award 2010
Aged Care Substantive Claims Decision	4 yearly review of modern awards – Award stage – Group 4 – Aged Care Award 2010 – Substantive claims [2019] FWCFB 5078
Ai Group	Australian Industry Group
AIRC	Australian Industrial Relations Commission
ASU	Australian Services Union
Award	Unless the context suggests otherwise, the SCHADS Award
Award Modernisation	The process of reviewing and rationalising awards in the national workplace relations system to create a system of modern awards in accordance with the Minister’s request.
Background Paper 1	Background Paper, 4 yearly review of modern awards – Award stage – Group 4 – Social, Community Home Care and Disability Services Industry Award 2010 – Substantive claims – Tranche 2, 6 January 2020
Background Paper 2	Background Paper 2, 4 yearly review of modern awards – Award stage – Group 4 – Social, Community Home Care and Disability Services Industry Award 2010 – Substantive claims – Tranche 2, 4 March 2020
Background Paper 3	Background Paper 3, 4 yearly review of modern awards – Award stage – Group 4 – Social, Community Home Care and Disability Services Industry Award 2010 – Substantive claims – Tranche 2, 4 March 2020
Business SA	South Australian Chamber of Commerce and Industry T/A Business SA
Commission	Fair Work Commission
ERO	Equal Remuneration Order
HSU	Health Services Union
Joint Union	ASU, HSU and UWU
NDIA	National Disability Insurance Authority
NDIS	National Disability Insurance Scheme
NDS	National Disability Services
NSW	New South Wales
Part-time and Casual Employment	4 yearly review of modern awards – Casual employment and Part-time employment [2017] FWCFB 3541
Part-time and Casual Employment Full Bench	The presiding Full Bench on 4 yearly review of modern awards – Casual employment and Part-time employment [2017] FWCFB 3541
Part-time and Casual Employment Common Issue Proceedings	AM2014/196 and AM2014/197
Penalty Rates Case	4 yearly review of modern awards – Penalty Rates [2017] FWCFB 1001
Report	Each of: The May 2020 Cortis Report (see section 3.1) The Muurlink Report (see section 3.2) The Stanford Report (see section 3.3) The Macdonald Article (see section 3.4)
Review	4 yearly review of modern awards
SACS	Social and community services
SCHADS Award	Social, Community, Home Care and Disability Services Industry Award 2010
September 2019 Decision	4 yearly review of modern awards–Group 4–Social, Community, Home Care and Disability Services Industry Award 2010–Substantive claims [2019] FWCFB 6067
Transitional Review	Review of all modern awards conducted by the Commission in accordance with the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).
Union	ASU, HSU and UWU
UWU	United Workers Union (formerly known as United Voice)

1. BACKGROUND

[1] The substantive claims in the Review in respect of the SCHADS Award have been dealt with in 2 groups: Tranche 1 and Tranche 2. This decision deals with the Tranche 2 claims.

[2] The following organisations have made or responded to claims in these proceedings:

• Australian Business Industrial, the New South Wales Business Chamber, Aged and Community Services Australia and Leading Age Services Australia (ABI)

• Australian Federation of Employers and Industries (AFEI)

• Australian Industry Group (Ai Group)

• Australian Services Union (ASU)

• South Australian Chamber of Commerce and Industry T/A Business SA (Business SA)

• National Disability Services (NDS)

• Health Services Union (HSU)

• United Workers Union (UWU).

[3] This decision is structured into the following chapters:

• Chapter 1 explains the background to the claims before us

• Chapter 2 sets out the legislative framework within which we must make our decision

• Chapter 3 deals with the expert reports that were filed in the proceedings

• Chapter 4 sets out the common findings we have made based on the evidence that is before us

• Chapters 5 to 11 deal with each of the claims before us which relate to:

• Minimum[491]m engagement

• broken shifts

• travel time

• variations to rosters

• remote response/recall to work

• client cancellations

• clothing and equipment

• overtime for part-time and casual workers

• 24-hour-care

• sleepover

• mobile phone allowance, and

• community language allowance

• Chapter 12 deals with the Equal Remuneration Order (ERO) and the provisional view expressed in matter AM2020/100, and

• Chapter 13 sets out the next steps in this matter.

[4] The SCHADS Award covers employers (and their employees in the classifications listed in Schedules B to E of the SCHADS Award) in the following sectors:

• crisis assistance and supported housing

• social and community services (including social work, recreational work, welfare work, youth work or community development work (including organisations which primarily engage in policy advocacy or representation on behalf of organisations carrying out such work) (SACS) and the provision of disability services including the provision of personal care and domestic and lifestyle support to a person with a disability in a community and/or residential setting including respite centre and day services)

• home care (the provision of personal care, domestic assistance or home maintenance to an aged person or a person with a disability in a private residence), and

• family day care (the operation of a family day care scheme for the provision of family day care services).

[5] The SCHADS Award includes 3 different minimum rates clauses for the different sectors:

• Clause 15 applies to employees working in the social and community services and the crisis assistance and supported housing sectors

• Clause 16 applies to employees working in the family day care sector, and

• Clause 17 applies to employees working in the home care sector.

[6] In this decision we refer to the social and community services sector as the SACS sector and employees in this sector as SACS employees.

1.1 THE TRANCHE 1 CLAIMS

[7] As mentioned above, this decision deals with the Tranche 2 claims but we begin with a short summary of the claims in Tranche 1. On 12 April 2019 a summary document was published in relation to Tranche 1 outlining the relevant procedural history, the claims being pursued and a summary of the submissions received.

[8] The following claims were dealt with in Tranche 1:

UWU claims:

• S44A – deletion of 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

• S57 – variation to public holidays clause.

ASU claims:

• S6 – provision of a Community language skills allowance.

HSU claims:

• S19 – first aid certificate renewal

• S43 – deletion of the 24-hour-care clause

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

[9] The Tranche 1 claims were heard on 15 – 17 April 2019.

[10] On 2 September 2019 we issued the September 2019 Decision which dealt with the nature of the Review, the SCHADS Award, the SCHADS sector, the National Disability Insurance Scheme (NDIS) and the Tranche 1 claims. In dealing with the Tranche 1 claims, we decided to:

• vary the rates of pay of casual employees who work overtime and on weekends and public holidays (subject to the views expressed therein about transitional arrangements)

• reject the first aid certificate renewal claim

• reject the UWU’s claim to vary the public holiday clause

• defer consideration of the ASU’s claim for a community language skills allowance

• set out a process for addressing the lack of clarity and other deficiencies in the 24-hour-care clause.

[11] On 18 October 2019 we issued a decision 1 (the October 2019 Decision) resolving the transitional arrangements in respect of the decision to vary the rates of pay for casuals working overtime and working on weekends and public holidays. We decided that the increases in overtime, weekend and public holiday rates for casuals would come into operation, in full, from 1 July 2020. A determination2 was issued on 21 October 2019 giving effect to the October 2019 Decision.

[12] In relation to the claim for a community language skills allowance, Deputy President Clancy published Background Document 1 on 4 December 2019 and directions were issued for the hearing of this claim with the Tranche 2 proceedings.

[13] In relation to the 24-hour-care clause a Report was published by Commissioner Lee on 14 November 2019 and this claim was the subject of submissions in the Tranche 2 proceedings.

1.2 THE TRANCHE 2 CLAIMS

[14] The Tranche 2 claims being pressed are:

ABI claims: 3

• Variation to the client cancellation provision

• Remote response work

• Variations to rosters. 4

ASU claims:

• Broken shift penalty rate

• Paid travel time

• Recall to work overtime away from the workplace.

HSU claims:

• Broken shifts

• Minimum engagements

• Travel

• Telephone allowance

• Uniform/damaged clothing allowance

• Cancellation

• Sleepover

• Overtime for part-time and casual workers beyond rostered hours/8 hours.

UWU claims:

• Broken shifts

• Travel time

• Variation to clothing and equipment allowance (uniforms)

• Variations to rosters clause

• Mobile phone allowance claim.

[15] On 26 September 2019 a Statement 5 was issued directing the parties to file a Court Book, by Friday 4 October 2019. The Court Book included draft determinations which were filed by:

• ABI on 2 April 2019

• ASU on 7 November 2018 and 2 July 2019

• HSU on 15 February 2019

• UWU on 3 October 2019.

[16] Following the filing of the Court Book, ABI filed an amended draft determination on 15 October 2019.

[17] The hearing of the evidence in respect of the Tranche 2 substantive claims took place in the period 14 – 18 October 2019. The following Transcripts of proceedings have been published:

• Monday 14 October 2019

• Tuesday 15 October 2019

• Wednesday 16 October 2019

• Thursday 17 October 2019

• Friday 18 October 2019.

[18] The exhibits tendered at the Tranche 2 Full Bench hearings are listed at Attachment A.

[19] Directions issued on 23 October 2019 required the parties to file submissions:

(i) setting out the claims they are pressing or opposing in the Tranche 2 proceedings;

(ii) identifying the parts of the Court Book, the exhibits and transcripts which are relevant to each claim;

(iii) identifying the submissions filed (and which parts of those submissions) they rely on in relation to the claims being considered in the Tranche 2 proceedings;

(iv) dealing with the evidence adduced during the proceedings on 15 – 18 October 2019, including by identifying the findings that they say should be made in light of the evidence and referring to the aspects of the evidence which is said to support those findings (by reference to particular paragraphs in exhibits and the Transcript);

(v) responding to the amended claims filed by ABI on 15 October 2019; and

(vi) responding to the ‘remote response’ claim filed by the ASU on 19 September 2019 and any written submissions filed in support of it.

[20] The following submissions were filed:

• UWU on 18 November 2019

• Ai Group on 18 November 2019 6

• HSU on 18 November 2019

• ABI on 19 November 2019

• NDS on 19 November 2019

• AFEI on 19 November 2019 and in reply to ASU and ABI on 19 November 2019

• ASU on 19 November 2019.

[21] On 3 December 2019 we published a Statement 7 vacating the hearing scheduled for the Tranche 2 claims on 5 and 6 December 2019, noting that:

‘Having considered the submissions filed we have formed the view that further written submissions are required. In particular we will be seeking final written submissions from each interested party addressing:

• the findings sought by other parties;

• whether they agree or contest those findings;

• their reasons (by reference to the evidence) for agreeing or contesting those findings; and

• any submissions in reply to the written submissions referred to at [4] above.

Provision will also need to be made for submissions in reply.’ 8

[22] Revised Directions (the December 2019 directions) were issued on 5 December 2019 as follows:

‘Interested parties are to file written submissions in respect of the following matters by 4:00 pm on Friday 7 February 2020:

(a) whether they agree with or contest the findings sought by other interested parties in the written submissions listed at paragraph [4] of the December 2019 Statement;

(b) in respect of any submissions made in accordance with paragraph (a) above; the reasons for agreeing with or contesting the findings sought, by reference to the evidence;

(d) responses to the questions posed in the Background Paper; and

(e) submissions in support of the parties preferred position on changes to the 24 hour clause as set out in the Report issued by Commissioner Lee on 14 November 2019 (Note: At [2019] FWCFB 6067, [104] we expressed the provisional view that a 24 hour clause be retained but that the existing clause does not provide a fair and relevant minimum safety net and required amendment).

Interested parties are to file any submissions in reply by 4:00 pm on Monday 24 February 2020.

Submissions are to be filed in Word format via email to [email protected].

The matter will be listed for hearing on Wednesday 11 March 2020 at 9:30 am.

Interested parties are granted liberty to apply to vary these directions.’

[23] On 6 January 2020, the Fair Work Commission (Commission) published Background Paper 1 to assist the parties in the preparation of the submissions for Tranche 2.

[24] Background Paper 1 set out the procedural history of the Tranche 2 proceedings, the claims being pressed in Tranche 2 as well as the submissions 9 and the findings sought by the parties in respect of those claims. Background Paper 1 also identified the general findings of the evidence sought by the parties.

[25] Background Paper 1 posed a series of questions to parties with an interest in these proceedings. The answers to the questions (and any identified errors in the document) were to be filed according to the timetable set out in the December 2019 directions.

[26] Submissions in response to the December 2019 directions were received from:

• ASU (7 February 2020)

• NDS (7 February 2020)

• Ai Group (10 February 2020)

• ABI (10 February 2020)

• Joint Union (10 February 2020)

• AFEI (11 February 2020).

[27] Submissions in reply were received from:

• Ai Group (26 February 2020)

• NDS (26 February 2020)

• AFEI (26 February 2020)

• ABI (26 February 2020)

• Joint Union (26 February 2020).

[28] The submissions received in response to the questions posed in Background Paper 1 are set out in Background Paper 2.

[29] The following submissions were received in response to Background Paper 2:

• ABI (11 March 2020)

• AFEI (11 March 2020)

• Joint Union (10 March 2020)

• Ai Group (11 March 2020)

• NDS (10 March 2020).

[30] Background Paper 3 dealt with the following claims:

• travel time claims from the ASU, HSU and UWU

• overtime for part-time and casual workers from the HSU

• the minimum engagements claim from the HSU

• community language skills allowance from the ASU, and

• the 24-hour-care clause matter.

[31] Attachment B sets out the list of submissions received in relation to the Tranche 2 proceedings.

2. LEGISLATIVE FRAMEWORK

[32] The September 2019 Decision deals with the nature of the Review at [7] to [21]. We adopt and apply those principles to this decision.

[33] We note here that the Commission may make a determination varying a modern award if the Commission is satisfied the determination is necessary to achieve the modern awards objective. The modern awards objective is in s.134 of the Fair Work Act 2009 (Cth) (the Act).

[34] It is not necessary to make a finding that the award fails to satisfy one or more of the s.134 considerations as a prerequisite to the variation of a modern award. 10 Generally speaking, the s.134 considerations do not set a particular standard against which a modern award can be evaluated; many of them may be characterised as broad social objectives.11 In giving effect to the modern awards objective the Commission is performing an evaluative function taking into account the matters in s.134(1)(a)–(h) and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance.

[35] What is ‘necessary’ to achieve the modern awards objective in a particular case is a value judgment, considering the s.134 considerations to the extent that they are relevant having regard to the context, including the circumstances pertaining to the particular modern award, the terms of any proposed variation and the submissions and evidence. 12

[36] Where an interested party applies for a variation to a modern award as part of the Review, the proper approach to the assessment of that application was described by a Full Court of the Federal Court in CFMEU v Anglo American Metallurgical Coal Pty Ltd (Anglo American) as follows: 13

‘[28] The terms of s 156(2)(a) require the Commission to review all modern awards every four years. That is the task upon which the Commission was engaged. The statutory task is, in this context, not limited to focusing upon any posited variation as necessary to achieve the modern awards objective, as it is under s 157(1)(a). Rather, it is a review of the modern award as a whole. The review is at large, to ensure that the modern awards objective is being met: that the award, together with the National Employment Standards, provides a fair and relevant minimum safety net of terms and conditions. This is to be achieved by s 138 – terms may and must be included only to the extent necessary to achieve such an objective.

[29] Viewing the statutory task in this way reveals that it is not necessary for the Commission to conclude that the award, or a term of it as it currently stands, does not meet the modern award objective. Rather, it is necessary for the Commission to review the award and, by reference to the matters in s 134(1) and any other consideration consistent with the purpose of the objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net.’

[37] In the same decision the Full Court also said: ‘...the task was not to address a jurisdictional fact about the need for change, but to review the award and evaluate whether the posited terms with a variation met the objective.’ 14

3. THE REPORTS

3.1 THE MAY 2020 CORTIS REPORT

[38] On 15 June 2020 the HSU, on behalf the Unions, filed correspondence 15 which attached a report by Dr Natasha Cortis and Dr Georgia van Toorn titled ‘Working in new disability markets: A survey of Australia’s disability workforce’ (the May 2020 Cortis Report). The Report is an updated version of the June 2017 report, ‘Working under the NDIS: Insights from a survey of employees in disability services’ which was set out at pages 3080-3128 of the Court Book.

[39] The admission of the May 2020 Cortis Report was opposed, as it was published after the oral hearing. We issued a Statement 16 referencing the HSU’s correspondence and listed the matter for mention. A mention was held on 9 July 2020 and the following parties attended:

• ABI

• AFEI

• Ai Group

• ASU

• HSU

• NDS.

[40] The transcript of the mention is available here.

[41] We subsequently decided to admit the May 2020 Cortis Report into evidence and issued Directions: 17

‘1. By 4pm Monday, 20 July 2020, the union parties are to file submissions setting out:

(i) the parts of the May 2020 Report on which they rely;

(ii) the findings sought on the basis of the parts of the May 2020 Report on which they rely; and

(iii) the claims to which the findings sought relate.

2. By 4pm Monday, 10 August 2020, the employer parties are to file:

(i) submissions and any evidentiary material in response to the submissions made by the unions pursuant to Direction 1;

(ii) any additional reports, data or other material by way of updating material already filed; and

(iii) a notification of whether they wish to cross-examine the authors of the May 2020 Report.

3. By 4pm Monday, 24 August 2020,the union parties are to file submissions in reply to the material filed by the employers pursuant to Direction 2.’

[42] The following submissions were filed in relation to the May 2020 Cortis Report:

• Joint Union (20 July 2020)

• AFEI (10 August 2020)

• Ai Group (13 August 2020)

• ABI (10 August 2020)

• NDS (10 August 2020).

[43] We begin by briefly summarising the May 2020 Cortis Report before turning to the submissions concerning the report.

[44] The May 2020 Cortis Report provides information about the workforce delivering services in the context of the NDIS. The information is based on a national online survey of 2,341 disability workers conducted during March 2020. The survey was co-designed by a research team in partnership with the HSU, ASU and UWU and was intended to capture disability workers’ perspectives about their work and working conditions and their experiences of delivering services and supports to people with a disability.

[45] Data on the survey respondents is set out in Chapter 2 of the May 2020 Cortis Report and in Tables A.2 to A.6 in Appendix A. In brief:

• 66% were female and that proportion was similar across disability service settings

• 39% were aged 55 or older (only 14% were aged 34 or under)

• 96% worked in roles involving direct work with disability service users or clients (direct work was commonly with people with intellectual or cognitive disabilities (87%), while 57% worked with people with physical or sensory disabilities and 49% worked with people with psychosocial or mental health disabilities)

• respondents commonly worked in shared supported accommodation, group home or respite facilities (75%), while 29% worked in community access/community participation settings, 20% worked in home care settings and 14% worked in day programs

• about two-thirds of those in supported accommodation settings said they ‘always’ worked with the same clients and 27% said they ‘mostly’ did. This differed across disability settings – in co-ordinated case management employment and advocacy settings only 26% said they ‘always’ worked with the same clients; for disability workers in home-based care and support settings and those in community and day program settings, 37% said they ‘always’ worked with the same clients and a further 53-54% said they ‘mostly’ did

• 17% ‘always’ worked on their own with clients, with no other worker present and a further 27% ‘mostly’ worked alone. This was higher among those in home-based care and support settings, and in co-ordinated and mental/allied health

• a large proportion were very experienced disability workers – a quarter had worked in disability services for 20 years or more and a further 29% had done so for 10-20 years

• most respondents (63%) worked for a charity or not-for-profit organisation, while 17% worked for a private, for-profit business and 12% for a government organisation.

[46] The survey was distributed via the Unions, with online survey links distributed to members working in disability services. Some 97% of respondents were union members. The authors acknowledge the limitations of engaging workers via their trade unions:

‘However, while engaging workers in research via their trade unions enables researchers to capture perspectives of staff who are dispersed across a range of organisations and workplaces, there are some limitations. In general, younger workers are less likely to be union members than older workers, as are those in smaller workplaces (Gilfillan and McGann, 2018). As such, union-based research samples may underrepresent workers who are newer to the industry and who are employed casually, and may over-represent those in larger, more established workplaces. Further, responses are likely to reflect conditions where union-negotiated enterprise agreements are in place, where better working conditions and safety protocols could be expected to result from a stronger union presence. Results should therefore be interpreted primarily as representations of the experiences and conditions of unionised workers and unionised workplaces, which tend to be better for workers than across the industry as a whole.

A further sampling issue to note is that workers who provide services in private homes and in the community are generally more difficult to engage in research compared with those in ‘fixed’ workplaces such as offices or residential facilities, as the former are with clients or moving between them and have limited time to spend participating in research or other non-client focused activities. As such, there are large numbers of workers in group home / supported accommodation settings among survey respondents, while home and community-based care and support workers, along with casual workers are underrepresented. To address these issues, responses for sub-groups of respondents have been examined through the report – including for disability support workers delivering services in supported accommodation settings, in home-based care and support settings, community-based or day program settings, and other settings. In addition, data is broken down for casual workers; workers who were newer to the industry or more experienced, among other subgroups. These breakdowns are reported where they help understand important differences among respondents.’ 18

[47] The survey findings are presented thematically, covering the following topics:

• working time 19

• staffing levels and service quality 20

• perceptions of the NDIS 21

• remuneration 22

• measures of job quality 23

• supervision and support 24

• skills qualification and training 25

• online platforms 26

• safety and reporting. 27

[48] The ‘key findings’ are set out in the Executive Summary to the May 2020 Cortis Report, some of which are reproduced below:

‘Unpaid work was common among full and part time workers and was considered essential for completing core service delivery tasks.

Workers in the sample worked an average of 33.8 paid hours and 2.6 unpaid hours in the previous week, across all their disability jobs. High proportions of workers in home-based care and support settings performed unpaid work, as did those in co-ordination, case management, employment and advocacy settings.

• Overall, two in five disability workers (41%) worked at least one unpaid hour in the last week.

• For every paid hour, disability workers donated an additional 4.6 minutes of unpaid time (equivalent to 36.8 minutes for an 8-hour day).

• Unpaid time constituted around 7% of total time worked in the previous week (36.4 hours, paid and unpaid)…

Many workers also reported instability in their paid work hours, including changes in shift times which workers were advised of at short notice. Half of respondents (50%) said they worry about rosters, 45% said their shifts change unexpectedly, and 29% said they were often called in to work at inconvenient times. Unstable working arrangements undermined the reliability of disability workers’ incomes, and their ability to plan their work and organise other aspects of their lives…

Many workers report they are not paid for travel costs or travel time between clients or to attend team meetings. In addition, workers incur costs in the course of doing disability work, including paying for things for clients with their own money, or paying for things they wouldn’t otherwise buy. Only 29% agreed that they are reimbursed fairly for expenses incurred on the job.’ 28

[49] No party sought to cross-examine the authors of the May 2020 Cortis Report.

[50] Ai Group contended that little, if any, weight should be attributed to the May 2020 Cortis Report for the reasons set out at paragraphs 4 to 14 of its submission. 29 In brief:

• the survey respondents are not a representative sample of employees covered by the Award and the responses do not permit conclusions to be reached about the workforce or sectors covered by the SCHADS Award. Further, it is not clear if the SCHADS Award applies to any of the respondents and if so, how many. Some survey respondents may be covered by enterprise agreements

• the survey results reflect no more than the perceptions of a group of employees. They do not establish, as a question of fact, that the arrangements, conditions or practices referred to are in fact in place or that the issues referred to in fact arise from their employment. Such perceptions are of limited if any probative value to the Commission’s assessment of whether the provisions proposed for inclusion in the Award by the Unions are necessary to ensure that the Award achieves the modern awards objective

• the survey respondents are not identified and they have not been called to give evidence. Similarly, their employers have not been identified. Accordingly, the respondent parties are unable to test the veracity of the survey respondents’ responses because they have not been called to give evidence. The survey responses are essentially in the nature of hearsay from unidentified employees that cannot be tested

• the extent to which the survey respondents’ responses relate to the operation of the SCHADS Award, if at all, cannot be discerned. Given that employees may have been covered by enterprise agreements, the terms and conditions applying to them by virtue of those enterprise agreements may have affected their responses, and

• the survey respondents were almost exclusively union members, and the Unions have for some time been advancing a sustained campaign for enhanced terms and conditions in the sectors covered by the SCHADS Award. The survey responses may have been coloured by such propaganda.

[51] AFEI made a submission in similar terms. 30 In addition, AFEI submitted that the survey respondents are not representative of the state distribution of the NDIS workforce.31 AFEI contended that no weight should be given to the May 2020 Cortis Report.

[52] Unlike Ai Group and AFEI, ABI did not advance a general submission to the effect that little weight should be attributed to the May 2020 Cortis Report but did challenge some of the specific findings advanced by the Unions based on the May 2020 Cortis Report. 32

[53] Similarly, as a general proposition, NDS did not take issue with the May 2020 Cortis Report ‘as a piece of research which provides insights into the experiences of the disability support workforce, and which should help to inform workforce strategy for disability service providers operating in the NDIS environment’. 33 But NDS did challenge the relevance of some of the specific findings sought by the Unions.

[54] In particular, NDS notes that some aspects of the May 2020 Cortis Report point to issues of award compliance and the Act already provides an enforcement mechanism. NDS also points to ‘a difficulty with relying on the report in support of proposals for variations to the modern award, because it is not possible to tell from the data which comments come from award or agreement covered employees’. 34 NDS provides an illustration of this difficulty by pointing to a survey respondent who refers to their sleepover allowance of $77 which is higher than the award allowance of $48.45 at the time the survey was conducted. NDS submits that the higher amount:

‘may reflect the allowance commonly payable in Victoria under enterprise agreements, but which operate on a different basis to the award. We have no way of knowing for certain what conditions apply to that respondent.’ 35

[55] There is considerable force in the general criticisms advanced by Ai Group, AFEI and NDS as to the representativeness of the survey upon which the May 2020 Cortis Report is based.

[56] The authors of the May 2020 Cortis Report respond to this criticism in the following terms:

‘As the survey was distributed primarily to HSU, ASU and UWU members, 97% of respondents were union members. While random sampling would be most representative, this is rarely practical in social care research. Recruiting a representative random sample is not realistic for disability workers, as there is no central dataset containing lists of all community service or disability workers, from which a random sample could be drawn. Recruiting workers via employers, while acceptable as a practical research strategy, would mean research participants would be drawn from a relatively narrow range of organisational contexts. While every approach has strengths and limitations, recruiting workers via their representative organisations is a common means of engaging workers as research participants, used in multiple studies to gather insight into the ways care work is performed and experienced (e.g. Baines and Armstrong, 2019; Trydegard, 2012; Meagher et al, 2019).’ 36

[57] We acknowledge that there are practical barriers to conducting a stratified random sample of disability workers. The absence of a central data set containing a list of all disability workers means that such an approach is virtually impossible. However, as the survey sample is not a stratified random sample of disability workers covered by the SCHADS Award in our view it is not appropriate to extrapolate the results to the workforce generally.

[58] Contrary to the submissions of Ai Group and AFEI we are not persuaded that the May 2020 Cortis Report should be given no weight. That said, we acknowledge the significant limitations in the data. The survey responses present the untested perceptions of a group of disability workers about a range of matters and it is unclear which of the respondents have their terms and conditions set by the SCHADS Award, as opposed to an enterprise agreement. As a collection of essentially anecdotal perceptions by a significant number of disability workers, the May 2020 Cortis Report has some, albeit limited, value.

[59] We now turn to the Joint Unions’ submissions. The findings sought by the Unions are grouped by claim.

Minimum engagement, broken shifts and travel time claims

[60] The findings sought from the May 2020 Cortis Report in relation to the HSU’s minimum engagement claim, and the Unions’ broken shift and travel claims are:

1. Disability service employees work a significant amount of unpaid hours. 37

2. Common unpaid tasks performed include completing case notes and other forms of reporting, co-ordination and communication functions, and driving and travelling for work (not including travel to and from the first and last clients of the day). 38

3. Disability service employees are frequently not paid for travel between clients. 39

4. Disability service employees feel that they are not adequately compensated for travel and use of their own vehicle for work. 40

5. Disability service employees are under pressure to perform unpaid work in order to meet the needs of their clients. 41

6. A significant number of disability service employees, particularly home-based support workers, feel that they spend too long waiting between paid shifts. 42

7. The scheduling of discontinuous or broken shifts puts strain on disability service employees. 43

8. The capacity of employers to require employees to work broken shifts, and the lack of a minimum engagement, facilitates the use of unpaid hours and fragmentation of work schedules. 44

9. These practices undermine the quality and sustainability of work in the sector, and the optimism of workers over their careers. 45

10. The current SCHADS Award provisions in relation to minimum engagements, broken shifts and travel are not adequate to meet the challenges facing disability workers in maintaining healthy work-life balance. 46

[61] The Joint Unions’ submission identifies the following 8 parts of the May 2020 Cortis Report which are said to support the proposed findings.

(i) Section 3.1 and Table 3.1 – Paid and unpaid work hours (pages 22-23)

[62] The findings in relation to this topic are set out at page 22 and Table 3.1 on page 23 of the May 2020 Cortis Report, in particular:

• overall, workers in the sample worked an average of 33.8 paid hours and 2.6 unpaid hours

• for every paid hour of work, the disability workers donated an additional 4.6 minutes of unpaid time (equivalent to 36.8 minutes for an 8-hour day)

• unpaid work constituted around 7% of total time worked in the last week (36.4 hours, paid and unpaid).

(ii) Section 3.3 – Unpaid work time (pages 24-5)

[63] Section 3.3 of the May 2020 Cortis Report sets out several comments from survey participants describing how it is necessary for employees to work additional unpaid hours to ensure their clients were supported.

[64] The authors of the May 2020 Cortis Report observe that, ‘feeling unable to fit in all the tasks required by clients was a significant source of strain for workers, who felt conflict between their own need to be paid for their work and the need to ensure client needs were met’. 47

(iii) Section 3.4 and Figure 3.1 – Tasks performed during unpaid time (pages 25-26)

[65] Section 3.4 sets out which tasks survey participants reported they performed during unpaid time.

[66] In relation to the Unions’ travel time claim, as well as broken shifts and minimum engagement claims, Figure 3.1 shows that 43% of participants spent at least 1 hour of unpaid time driving or travelling for work, not including the first and last trip between home and work each day.

[67] The tasks the survey participants reported performing during unpaid time are summarised as follows:

• the most common task, reported by two thirds (67%) of the 960 workers who reported unpaid work time, was completing case notes, paper or online forms or other reporting, and

• the next most common tasks related to co-ordination and communication functions: communicating with colleagues or other service providers (reported by 58%), handover tasks (53%) and communicating with a supervisor (48%) 48

(iv) Section 3.5, especially 3.5.3 and Appendix Table A.10 – Perceptions of working time arrangements (pages 27-34 and 100-101)

[68] Sections 3.5.1 to 3.5.4 are concerned with issues of stability of working hours, unexpected changes in working hours, the structure and organisation of shifts, including its impacts on clients, anxiety about rosters and work-life balance.

[69] Section 3.5.3 is said to be relevant to the Unions’ broken shifts and travel time claims. One comment highlighted on page 31 reads:

‘The only thing I don’t like is split shifts. Especially when working at a group home. I feel I waste a lot of money on petrol on those days, as I commute to work, then drive home for the split, then drive back to work to start my afternoon split and then drive back home that night.’

[70] According to Figure 3.5 on page 31, 15% of all survey participants and 31% of home-based support workers agreed that they spend too long waiting between paid shifts.

(v) Section 5.5 – Further comments on the NDIS (page 48)

[71] Section 5.5 collates some comments from survey participants in relation to compensation for travel and costs of vehicle maintenance, depreciation and fuel:

‘Community-based support workers consistently raised the issue of having to use their own vehicle to transport clients, and not being compensated for the costs of maintenance, depreciation and fuel, under NDIS arrangements.

Staff uses their own cars to transport client must receive a higher amount of compensation because after 4 to 5 years we need to purchase another car due to the high number of kilometres.

I have to use my personal car to transport clients on a daily basis and are not adequately compensated for it.

Workers commented that they were required to use their own vehicle due to restrictions on funding for client travel. They noted that because clients are funded only for a specified number of kilometres, the costs incurred by additional (unfunded) travel are borne by staff.

I have sustained damage to my car, my petrol cost is out of control and my clients barely have enough funding to get by’ 49

(vi) Section 6.4 and Figure 6.5 – Payment for travel

[72] Section 6.4 discusses responses to specific questions in relation to work-related travel. Figure 6.5 shows that, of the survey participants who responded to the questions, less than a quarter agreed with the statements ‘I get paid for travel time between clients’ and ‘I get paid for my travel costs (e.g. vehicle allowance, petrol, insurance, tolls)’. 50

(vii) Section 6.1 and Figure 6.6 – Payment for team meetings

[73] Section 6.1 and Figure 6.6 observe that many disability workers reported not being paid to attend team meetings. 51

(viii) Section 7.3 – Career Prospects

[74] At page 59 the Report states:

‘a particularly interesting finding is how quickly new workers’ optimism dissipates through their careers. Indeed, the proportion of workers who agreed their prospects for advancement were good was 56% among those in their first year, however this slips to 38% among those with 1-2 years’ worth of experience, and falls further to 30% or less, among those with over 10 years of experience. This underlines potential retention difficulties, as the industry does not appear to be sustaining the optimism held by workers early in their careers.’ 52

[75] In response to the findings sought by the Unions, ABI submits:

‘Putting aside whether such findings can be made based on the material contained in the Report, we note that our clients have advanced alternate proposals in respect of minimum engagements, broken shifts and travel time. These alternate proposals are designed to address the concerns raised in the Report.’ 53

[76] We agree with ABI’s observation that the alternate proposals advanced in respect of minimum engagements, broken shifts and travel time are intended to address the concerns raised in the May 2020 Cortis Report. We return to these proposals later in our decision.

[77] Ai Group submits that the findings sought by the Unions at paragraphs 9(a), (d), (e), (f), (g), (h), (i) and (j) of the Joint Unions’ submission should not be made. 54

[78] Two things may be said about Ai Group’s submission. The first is that the objections to the proposed findings are not particularised; rather they are based on Ai Group’s general submission that the survey results should be accorded little weight. The second observation is that Ai Group does not oppose proposed findings (b) and (c), that is:

• paragraph 9(b): Common unpaid tasks performed include completing case notes and other forms of reporting, co-ordination and communication functions, and driving and travelling for work (not including travel to and from the first and last clients of the day), and

• paragraph 9(c): Disability service employees are frequently not paid for travel between clients.

[79] We are prepared to make the findings set out at paragraph 9(b) and (c) of the Joint Union submission. The finding that disability services workers are frequently not paid for travel between clients is relevant to our consideration of the travelling time claim.

[80] We are not persuaded that the May 2020 Cortis Report provides a sufficient evidentiary basis for the other findings sought. The concerns expressed by the survey respondents relied on in support of the findings proposed are often vague and general in character.

HSU’s overtime claims

[81] The findings sought in relation the HSU’s overtime claims are:

1. disability service employees, particularly those in home-based and community and day program settings, have high incidences of short working hours, such as 20 hours or less paid work per week. 55

2. for many employees, arrangement of hours of work in disability services are unpredictable, unstable and uncertain. 56

3. employees are regularly required to work additional hours above their contracted weekly or fortnightly hours. Some employees do not want to work additional hours but feel like they cannot say no. 57

4. a significant number of part-time as well as casual employees in disability services do not feel secure in their working arrangements. 58

5. under current award provisions there is little incentive for employers to review employees’ guaranteed hours.

[82] The Joint Unions’ submission identifies the following 3 parts of the May 2020 Cortis Report relevant to the above findings.

(i) Section 3.2 and Table 3.2 – Workers with few paid work hours (pages 23-24)

[83] Section 3.2 observes that: ‘[m]any survey respondents reported working substantially fewer paid hours than indicated in the mean and median hours shown above… Among all respondents, 11 per cent worked 20 hours or less (across all their jobs in disability)’. 59

[84] Table 3.2 shows that the settings with the highest incidences of short working hours are home-based settings and community and day program settings. For each of these, 18% of survey respondents said they worked 20 hours or less paid work per week.

[85] Comments from survey participants highlighted in this section include:

‘[I] need to be available for twice the amount of hours I actually work.

Due to inconsistency of hours, I work two jobs just to reach full time hours. Problem is both demand 25+ hours a week. One job is not enough, two jobs is too much.’ 60

(ii) Section 3.5, particularly 3.5.1, Figure 3.2 and Appendix Table A.10 and Table 3.2 – Stability of working hours (pages 27-34 and 100-101)

[86] Section 3.5.1 focuses on the prevalence of ‘unstable and uncertain hours’ in disability work. One comment from a survey participant highlighted in the report was: ‘My hours can vary from 7 to 45 hours per week’. 61 Other comments included:

‘I am a casual so until fairly recently I had no idea how many hours I would be working in the next week.

Inconsistent, sometimes not enough hours, sometimes too many hours, heavy workload during holidays times, expected to work non-stop, favouritism.’ 62

[87] Figure 3.2 shows that unpredictable hours are a feature of home-based care and support setting, as 46% of survey participants disagreed with the statement ‘I work the same number of hours each week’. 63

[88] Sections 3.5.2 and 3.5.4 are also said to be relevant:

‘While some workers were worried about receiving too few paid hours, others were asked to work more hours than they wanted, and felt guilty about letting down team members and clients when they needed to say no.

Constantly being asked to do extra shifts does not help my mental health, as you feel you are letting down the team and the people you support.’ 64

(iii) Section 7.2 – Security of work and working arrangements (pages 58 – 59)

[89] The May 2020 Cortis Report found that a ‘substantial minority’ of permanent workers surveyed disagreed with the statement ‘My working arrangements feel secure’. 65

[90] Ai Group opposes all the Joint Unions’ proposed findings but does not explain the basis of its objection.

[91] ABI does not object to the proposed findings at (a) and (b) of [81] above.

[92] In relation to the proposed finding at paragraph 25(c) of the Joint Unions’ submission, ABI submits that this finding appears to be advanced based on a single comment made by 1 survey respondent recorded at page 34 of the May 2020 Cortis Report, to the effect that ‘being asked to do extra shifts does not help [their] mental health’. ABI notes that it has been unable to find any reference in the May 2020 Cortis Report to employees being ‘required’ to work additional hours, or that employees ‘feel like they cannot say no’. On that basis it is submitted that there does not appear to be anything in the Report that would support this proposed finding. 66 We agree with ABI and do not propose to make the finding sought.

[93] We are prepared to make the findings proposed at paragraphs 25(a), (b) and (c) of the Joint Unions’ submission (see [81] above). In relation to the finding at paragraph 25(c) we agree with Ai Group’s observation that the SCHADS Award requires that agreement must be reached on engagement between an employer and part-time employee on a regular pattern of work 67 and that there is no award-derived obligation on part-time employees to work additional hours. Further, there is also no award-derived obligation on casual employees to work any hours of work offered to them. But the existence of these legal protections does not negate the validity of the perception of some survey respondents that they ‘feel like they cannot say no’.

[94] As to the proposed finding (at paragraph 25(d) of the Joint Unions’ submission) that ‘a significant number of part-time as well as casual employees in disability services do not feel secure in their working arrangements’, it seems to us that the finding proposed is not supported by the May 2020 Cortis Report. In support of the proposed finding the Unions refer to page 58 of the May 2020 Cortis Report and Figure 7.3. Figure 7.3 is reproduced below:

[95] We note that Figure 7.3 says nothing about part-time employees and, further, while 48% of casual employees disagreed (or strongly disagreed) with the proposition ‘My working arrangements feel secure’, most casual employees either agreed with the proposition, strongly agreed or were neutral. In any event it would not be unusual that a significant proportion of any group of casual employees may not feel secure in their working arrangements – such is the nature of casual employment. We do not propose to make the finding sought.

[96] In relation to proposed finding at paragraph (e) in [81] above, ABI notes that it has advanced a proposal to address the issue which is the subject of the complaint. 68 We agree and would also observe that the finding sought is more in the form of a submission and that the part of the May 2020 Cortis Report said to support the proposed finding is not identified. We do not propose to make the finding sought.

HSU’s sleepover claim

[97] The findings sought in relation the HSU’s sleepover claim are as follows:

1. Sleepover shifts can be a source of anxiety and burn out for disability service workers, who can find themselves unable to sleep during the shift. 69

2. The current clause does not provide sufficient protections to ensure employees have access to the basic requirements for a night’s sleep during a sleepover shift. 70

[98] The Joint Unions’ submission identifies the following 2 aspects of the May 2020 Cortis Report in support of the above findings.

(i) Section 3.5.3 – Organisation of working hours (page 32)

[99] On page 32, the May 2020 Cortis Report observes that:

‘A strong theme in the comments related to sleepover shifts. These were a particular challenge and matter of concern for workers in supported accommodation settings, with some workers pointing out that these shifts contributed to long hours for little pay, poor wellbeing and safety risks:

Sleepover shifts create extreme anxiety. I am unable to sleep due to anxiety and client behaviours. I then have to administer medication whilst tired. I then have to drive home after being awake for 24 hours. I have asked management if I can permanently drop my sleepover shifts. They have not allowed this and expect me to swap shifts or use my leave.

…

‘Not enough days off between shifts. E.g., work 10 days straight, 1 day off, back for 5 days straight. Burn out. Count sleep overs, when finish at 8am from this time on they count this as day off. When finishing night duty/active shift at 7am, from this time they count this as day off. Back for morning shift next day’ 71

(ii) Section 6.3 – Comments on pay

[100] It is submitted that further relevant observations and survey responses about sleepover shifts are found in section 6.3, such as the following:

‘The award needs to be changed for sleepover shifts. As it stands, we get a small allowance for being at work for 8 hrs, on call, usually limited sleep, always broken and disturbed sleep. I don’t believe there are any other healthcare sector workers that are expected to be at work for 8hrs for $77. I think if the general public knew this they would be shocked.’ 72

[101] Ai Group opposed proposed finding (b) on the basis that the May 2020 Cortis Report does not support the finding proposed.

[102] ABI submits that neither of the two proposed findings can be made based on the material contained in the Report:

‘The Report deals with the issue of sleepovers in only a cursory way. There does not appear to have been any specific question in the survey about sleepovers put to survey respondents. Rather, the Report appears to extract a small number of free-text comments from survey respondents at pages 32 and 52 of the Report, which appear to have arisen from survey questions about working hours and pay generally. There are brief comments from eight respondents extracted in the Report, from a sample size of more than 2000. This is hardly a sufficient basis for making generalised findings in industry-wide proceedings.

Further, when the eight comments are considered, the main thrust of the concerns articulated appear to be about inadequate rest between shifts, and pay. Only two of the eight comments appear to deal with the issue of anxiety or burn out. Another two deal with the issue of quality of sleep.

The first finding advanced (at paragraph 35(a) of the Unions’ submission) is based on a very small number of brief and generalised comments. We do not consider that the Report provides a proper basis for such a finding to be made.

The second proposed finding (at paragraph 35(b) of the Unions’ submission) is advanced without any reference to any part of the Report at all. There is simply no material in the Report at all for such a finding to be made’ 73

[103] We agree with ABI. In our view the May 2020 Cortis Report does not provide a sufficient basis for any findings relevant to the sleepover claim.

ASU’s recall to work overtime claim

[104] The findings sought in relation to the ASU’s recall to work overtime claim are:

1. Disability service employees work a significant amount of unpaid hours. 74

2. Common unpaid tasks performed include completing case notes and other forms of reporting, co-ordination and communication functions. 75

3. Short-staffing creates additional duties for supervisory and managerial staff who must respond to short notice requests for casual or on-call labour out of hours. 76

[105] The Joint Unions’ submission identifies the following 3 parts of the May 2020 Cortis Report in support of the findings sought.

[106] First, the tasks the survey participants reported performing during unpaid time are summarised on page 25 of the May 2020 Cortis Report as follows:

(i) the most common task, reported by two thirds (67%) of the 960 workers who reported unpaid work time, was completing case notes, paper or online forms or other reporting; and

(ii) the next most common task related to co-ordination and communication functions: communicating with colleagues or other service providers (reported by 58%), handover tasks (53%) and communicating with a supervisor (48%).

[107] Second, the May 2020 Cortis Report highlights the following observation about workloads:

‘Something needs to be seriously done about House Supervisor and Operations managers workload. There is a silent expectation of working long hours and from home after you have completed your full days work.’ 77

[108] Third, the reliance by some services on-call or casual staff is said to create a burden on supervisory and managerial staff. The Report observes that:

‘Another survey participant pointed out that while on-call or agency staff were engaged to fill gaps, this was not necessarily effective in alleviating workloads for other team members:

We are dramatically understaffed (5 vacant lines) and shifts are filled mostly by on-call staff. These staff usually come in, do the minimum and leave. Often important paperwork is not done (meds etc) which requires chasing up.’ 78

[109] Ai Group challenges proposed finding (a), but beyond its general submission does not particularise the basis of its objection.

[110] ABI challenges the findings sought based on relevance, submitting:

‘It is difficult to understand how such findings would militate towards granting the ASU claim. There are competing claims before the Commission seeking to address the issue of employees being required to remotely perform work outside of their normal working hours. The findings advanced do not support the ASU claim any more than they support our clients’ claim in respect of a remote response payment regime.’ 79

[111] It seems to us that the proposed findings seek to advance the propositions that disability services employees work a significant number of unpaid hours, and that short-staffing creates challenges for supervisory and managerial staff. We are not persuaded that a sufficient link has been established between the proposed findings and the claims before us.

UWU’s roster claims

[112] The findings sought in relation UWU’s roster claims are:

1. Many workers reported instability in their paid work hours, including changes in shift times which workers were advised of at short notice. 80

2. Unstable working arrangements undermined the reliability of disability workers’ incomes, and their ability to plan their work and organise other aspects of their lives. 81

[113] The Joint Unions’ submission identifies the following 2 parts of the May 2020 Cortis Report in support of the above findings.

(i) Section 3.5.2 and Figures 3.3 and 3.4 – Unexpected changes in working hours (pages 29-30)

[114] Section 3.5.2 observes that 45% of respondents agreed or strongly agreed with the statement ‘My shifts can change unexpectedly’. Higher proportions of workers in home-based care settings and community and day program settings agreed with the statement (65% and 58% respectively), compared with 41% of those in group homes or other supported accommodation settings. 82 These unexpected changes in shifts underpinned substantial financial insecurity.83

[115] Comments from survey participants highlighted in this section are as follows:

‘Our rosters are a nightmare – changed, swapped, taken off, added on, without asking us.

I am unable to plan my free time. I get very stressed when my roster changes overnight without consultation.’ 84

(ii) Section 3.5, particularly section 3.5.4, Figure 3.6 and Appendix Table A.10– Stability of working hours (pages 27-34 and 100-101)

[116] Section 3.5.4 focuses on the impacts of ‘working time arrangements’ in disability work. One comment from a survey participant highlighted in the report was:

‘Rosters are a huge problem. We receive our ‘rosters’ the day before (on the Sunday). However, these are highly subject to change throughout the week. This means that participants are put in groups together who should not be in groups together (i.e. participants who trigger each others’ sensitivities). It also leads to miscommunication and confusion among staff, which in turn negatively impacts clients.’ 85

[117] Figure 3.6 shows, 50% of respondents agreed or strongly agreed with the statement ‘I worry about rosters’. 86 Figure 3.6 is set out below:

Figure 3.6 Proportion who agreed or strongly agreed ‘I worry about rosters’ and ‘I am often called in to work at inconvenient times’^

^Note: Full data, including the proportions who disagreed or were neutral, and the number of respondents on each item, is in Appendix Table A.

[118] Some of the comments in Section 3.5.4 are:

‘It is put up less than a week in advance and only one week at a time. I would prefer a fortnightly roster and at least 2 weeks in advance. Sometimes shifts change and it is impossible to make plans.

My roster affects me by having to continuously monitor changes to an agreed permanent roster by my organisation, thus causing anxiety and stress as management do not honour their agreement with me.’ 87

[119] Ai Group challenges proposed finding (b) but beyond its general submission does not particularise the basis of its objection.

[120] ABI submits that the findings proposed are:

‘rather general in nature, and there appears to be limited material in the Report upon which findings can be made about how much notice is given to workers where shift changes occur. For example, there does not appear to have been any specific question in the survey about shifts changing at short notice, or on less than 7 days’ notice. Rather, the relevant statement upon which comment was sought appeared to be ‘My shifts can change unexpectedly’. 88

[121] We acknowledge that proposed finding (b) is a direct quote from the Executive Summary in the May 2020 Cortis Report (at page 7). But this proposition appears to be based on an observation by 1 worker in a community setting (see page 30 of the May 2020 Cortis Report). This does not provide a reasonable foundation for the finding sought.

[122] Figure 3.3 summarises the survey responses to the proposition that ‘My shifts can change unexpectedly’. Figure 3.3 is reproduced below.

[123] Based on the data set out in Figure 3.3 we are prepared to find that many of the workers surveyed reported instability in their paid work hours, including changes in shift times which workers were advised of at short notice.

Additional Employer material

[124] In accordance with item 2(ii) of the Directions issued on 10 July 2020 (see [41]above), the employer parties filed the following additional material, which are said to be updated versions of material already filed in the proceedings:

• ABI (StewartBrown – Aged Care Financial Performance Survey, Aged Care Sector Report, Six Months ended 31 December 2019; and StewartBrown – Aged Care Financial Performance Survey, Sector Report, Nine months ended 31 March 2020) (the StewartBrown December 2019 and 31 March 2020 Reports)

• NDS (NDS Workforce Census – Summary of the December 2019 results (NDS Workforce Census).

[125] No party objected to the reports filed by ABI and NDS being admitted into evidence.

[126] AFEI filed a report entitled ‘COAG Disability Reform Council NDIS Quarterly Report, 31 March 2020’. AFEI did not contend the report was an update of material previously filed. No party opposed the report being filed and admitted into evidence.

[127] The Unions made no submissions in reply to the material filed by the employers pursuant to item 2 of the Direction issued on 10 July 2020. We will admit the additional material into evidence, and we have taken it into account.

[128] In relation to the report filed by AFEI – ‘COAG Disability Reform Council NDS Quarterly Report 31 March 2020’ – AFEI relied on that report to make good its submission that the survey respondents in the May 2020 Cortis Report are not representative of the NDIS workforce. No specific findings were sought by AFEI based on the 31 March 2020 COAG Report.

[129] We propose to make some brief observations about the ABI and NDS material.

[130] In relation to the StewartBrown 31 December 2019 and 31 March 2020 Reports, ABI notes:

‘We are aware that these reports were filed in separate proceedings in the Commission relating to Pandemic Leave and that a statement of Mr Grant Corderoy, of StewartBrown was filed in those proceedings. That statement can be found here. We consider that the statement may be useful in these proceedings and also note that Mr Corderoy was cross-examined in relation to that statement in those proceedings which similarly could be of use to the Commission in these proceedings.’ 89

[131] The Transcript of Mr Corderoy’s cross-examination in the Pandemic Leave proceedings is available here. As we have mentioned the Unions did not file reply submissions and no objection was taken to the proposition that we consider Mr Corderoy’s statement 90 and cross-examination; and we propose to do so.

[132] Mr Corderoy is the lead manager in relation to the StewartBrown survey. The survey is subscription based and designed for each participant organisation to compare and benchmark their operating performance at residential aged care homes and home care programs through a number of financial and non-financial measures. 91

[133] In the Paid Pandemic Leave decision 92 the Full Bench noted that the response rate to the survey is ‘above 43% of all residential aged care homes nationally and above 40% of all home care package programs’.93 In the course of his cross-examination in the Paid Pandemic Leave proceedings Mr Corderoy stated that 85% of survey providers are not-for-profit providers and 15% are for-profit providers.94

[134] ABI did not seek any specific findings based on the StewartBrown December 2019 and 31 March 2020 Reports but did seek the following finding in respect of the home care sector, based on the earlier 2018 StewartBrown Report:

‘Reports show that while revenue has been increasing in the sector, the revenue levels of HCP providers are so low that they border on being unsustainable (taking into account the money providers are required to spend in relation to technology, staff recruitment, retention and growth).’ 95

[135] The finding sought by ABI is broadly expressed (e.g. the proposition that the revenue levels ‘border on being unsustainable’) and ABI has not identified the aspects of the StewartBrown survey results which are said to support the finding sought. Indeed, our review of the most recent report – the StewartBrown 31 March 2020 Report – reveals a more nuanced picture in respect of the in-home care sector and does not support the finding sought by ABI.

[136] In respect of home care packages, the StewartBrown 31 March 2020 Report reveals a decrease in revenue per client per day (the average for survey participants decreased by 5.69%); but average operating profit per client increased due to reduced costs, particularly staff costs and resulting staffing hours. 96

[137] The StewartBrown 31 March 2020 Report highlights the issues associated with unspent funds as the most significant issue facing the sector:

‘The biggest single issue in relation to Home Care Packages remains in relation to the level of Unspent Funds. This level has kept rising each quarter, and now averages $8,250 per client (care recipient). In aggregate, this represents in excess of $1 million of funding that is not being utilised.

This continued growth in Unspent Funds, and many probable instances of their use for capital-related expenditure for care recipients (probably for a short-term benefit in many instances) is not sustainable. The recently announce changes to the subsidy payment arrangements (being in arrears rather than in advance) and the potential further reforms for providers to be reimbursed for actual services provided rather than for the funding package by care recipient will largely address the unspent funds concerns in this regard.

The cash flow implications to providers of the proposed reforms need to be considered and monitored. We understand that it is proposed that the current unspent funds will only be remitted back to the Government over a reasonable time period, and this should ease much of the initial cash flow concerns.

In-home care requires the redistribution of unused funds which are not being fully utilised in addition to the ongoing issue of more funding packages to meet consumer need. Service revenue must improve (driven by unit price increases) to ensure that staffing hours per care recipient also increase to meet the ongoing care needs.’ 97

[138] It seems to us that the StewartBrown 31 March 2020 Report supports a finding that the issue of unspent funds and the externally imposed unit prices are the most significant challenges facing the in-home care sector.

[139] As to the NDS Workforce Census, the updated data confirms the general characteristics of the workforce in relation to the significant incidence of casual and part-time employment:

‘There appears to be a small but significant trend towards permanent employment and away from casual employment, particularly in the states where NDIS has had the longest history and is relatively mature.

There has been a clear shift towards permanent employment in this six-month period. At 60% engaged permanently overall, the permanently engaged workforce is at its highest level since data collection started in 2015.

The shift was particularly noticeable in workforces in New South Wales and Victoria, where the early roll out of the NDIS means that demand for services has had time to settle. By contrast the proportion of permanent roles fell in Queensland, Tasmania and Western Australia.

There is also an increase in average hours of work per week per worker, although the trend is not consistent across states.’ 98

[140] We accept NDS’ characterisation of the NDS Workforce Census document.

3.2 THE MUURLINK REPORT

[141] The ASU sought to rely on a report prepared by Dr Olav Muurlink, titled ‘Predictability and control in working schedules’ (the Muurlink Report). 99 The circumstances in which the Muurlink Report is before us are a little unusual. No witness statement was filed and Dr Muurlink did not give evidence in these proceedings.

[142] Dr Muurlink’s report was filed in the Part-time and Casual Employment Common Issue Proceedings on 14 July 2016. The ASU relies on it in these proceedings pursuant to Item 4 of an Aide Memoire dated 22 December 2015. The Aide Memoire permitted the parties to the review of the SCHADS Award to rely on any material filed in the Part-time and Casual Employment Common Issue Proceedings that is relevant to the SCHADS Award in support of variations to be pursued in the SCHADS Award proceedings.

[143] ABI tendered and relied on the cross-examination of Dr Muurlink on 15 July 2016 in the Part-time and Casual Employment Common Issue Proceedings. 100

[144] The Muurlink Report is essentially a literature review of scholarly work on ‘unpredictable patterns of work and the effect of a roster on workers’ well-being’ and ‘on the impact of lack of control over patterns of work on workers’ well-being’ with an emphasis on material that is specific to the types of workers covered by several health care sector Awards, including the SCHADS Award. 101

[145] In his evidence in chief in the Part-time and Casual Employment Common Issue Proceedings Dr Muurlink summarised his conclusions:

‘Unpredictable and variable work conditions probably impact on human health with a psychological or physical in two ways which are connected but can be distinguished experimentally. So these two characteristics are the issue of control, sense of control and actual control, and the issue of change and variability. You can have control with low change in variability and these two can – they’re generally co-variant but they can be separated out. They have very significant impacts on human health, both psychological and physical.’ 102

[146] The ASU relies on the Muurlink Report in respect of its claims for a broken shift penalty rate, paid travel time, and recall to work away from the workplace/remote response. 103

[147] The ASU also sought to rely on the Muurlink Report in respect of its responses to the ABI claims 104 in relation to roster variations,¹⁰⁵ and client cancellation.¹⁰⁶

[148] The ASU submitted we should make the following findings based on, among other things, the Muurlink Report:

1. Work in disability services is becoming increasingly precarious. 107

2. Breaking shifts causes significant negative impacts on employees’ health and well-being. 108

3. Employees in the social and community sector are regularly recalled to work overtime without returning to a workplace (i.e. their employer’s premises or a client’s home). This work is conducted by use of electronic means of communication (telephones, laptop computers, etc.). 109

[149] Similarly, the HSU submitted:

‘In his review of the literature, Dr Muurlink explains how the unpredictable nature of work (a reality for both casual and part-time workers under this Award) has clear implications for the ability of workers to maintain work-life balance 110. Where work has a regular and predictable “beat”, the worker may synchronise their health behaviours with work; for example, establish regular family meal times or exercise routines and schedule doctors’ appointments or other self-care activities. Unpredictability of work presents challenges to health, both:

a. structural challenges (the reduced ability to engage in positive health behaviours or reduced access to services); and

b. physical and psychological challenges (the reduced sense of control, and reduced rhythmicity/increased change).

The latter category of challenges, whilst less tangible, are no less significant. A worker’s sense of control is one of the most critical psychological variables in determining health responses to stressors such as work conditions. 111 In a study of a large Hungarian dataset, a perceived absence of control at work was the second strongest work-related predictor of premature death from cardio-vascular disease and the most powerful predictor of female ischaemic heart disease mortality. Dr Muurlink notes the same author reports a connection between sense of control and well-being.112 Similar findings appeared in an Australian study of nurses,113 a group of workers with obvious parallels to the workers covered by the Award.

A further relevant observation in Dr Muurlink’s review is the potential for a compounding adverse impact when an absence of job security/underemployment is combined with irregular work. 114

The above features represent a real problem for the attraction and retention of appropriately skilled workers to the industry.’ 115

[150] ABI submits that in circumstances where Dr Muurlink was not a witness in the proceedings, the Commission should not readily make findings based solely on his literature review. 116 ABI made the following observations about the Muurlink Report:117

1. The Report is generic in nature rather than involving any specific analysis of the SCHADS industry.

2. Most of the Report relates to studies and data from jurisdictions outside of Australia.

3. The transcript of cross-examination demonstrates that the Report mischaracterised or exaggerated the findings of certain studies or data. Notably, Dr Muurlink also seemed to ‘cherry pick’ certain studies that seemed to ‘fit his thesis’, while overlooking or paying scant regard to better, larger, more statistically sound studies where the findings of such studies did not fit his narrative.

[151] Similarly, Ai Group submit the Muurlink Report can be afforded little weight because it is a review of scholarly work that concerns workforces in a range of nations across several industries and regulatory schemes. 118 Ai Group submits that Dr Muurlink made the following concessions during his cross-examination in the Part-time and Casual Employment Common Issue Proceedings:119

1. The Report does not include any consideration of the reasons for the asserted trend towards ‘greater variety’ in working patterns. To that extent, it does not consider countervailing considerations such as operational requirements that cause employers to schedule work in a way that results in greater variety in working patterns. 120

2. The Report does not include a consideration of the industrial context in which the claims being considered were advanced, including the Award. 121

3. Several of the studies relied upon relate to other industries. 122

4. Some of the studies relied upon concerned specific circumstances such as work performed on weekends, 123 fathers working more than 40 hours a week124 and shiftwork.125

5. The vast majority of the studies relied upon are international studies; particularly concerning Scandinavia. 126

6. The industrial conditions prevailing in those countries are ‘potentially’ and relevantly different. 127

7. The unemployment rate in those countries may affect an employee’s sense or perception of their control in a workplace. 128

[152] Ai Group submits the above concessions undermine the relevance of the Muurlink Report and further, it is unclear if the Muurlink Report concerns the work covered by the SCHADS Award or the regulatory scheme that it operates under. 129

[153] In a joint submission dated 26 February 2020, the Unions submit the Muurlink Report is probative and should be given ‘significant weight’ by the Commission. 130

[154] There is considerable force in the ABI and Ai Group critique of the Muurlink Report. In the Report, Dr Muurlink proffers several opinions based on a review of the relevant literature. In the course of his cross-examination in the Part-time and Casual Employment Common Issue Proceedings Dr Muurlink acknowledged that of the 120 or so papers and studies reviewed, the ‘vast bulk’ were international, particularly Scandinavian, studies and that there was a disproportionate focus on the health and care sector, biased heavily towards the top end of the sector (e.g. doctors, surgeons etc). 131 Dr Muurlink also acknowledged that he didn’t know much about the NDIS,132 had not looked at the SCHADS Award133 and did not consider the relevant industrial relations context in his review of the literature.134 However, contrary to ABI’s submission, we would not go so far as to suggest that Dr Muurlink had ‘cherry picked’ the studies to ‘fit his thesis’.

[155] While the direct relevance of the Muurlink Report to the claims before us is somewhat limited, we accept the general proposition that working irregular or unsystematic hours can have a negative effect on physical and psychological health. We also accept, again as a general proposition, that a worker’s sense of control at work is connected to worker well-being.

[156] Beyond these general propositions we are not persuaded that the Muurlink Report provides a sufficiently cogent base for the various other findings proposed by the ASU and HSU. Two examples illustrate this point. Two of the findings sought by the ASU, based on the Muurlink Report, are:

1. Breaking shifts causes significant negative impacts on employees’ health and well-being.

2. Employees in the social and community sector are regularly recalled to work overtime without returning to a workplace (i.e. their employer’s premises or a client’s home). This work is carried out by use of electronic means of communication (telephones, laptop computers, etc.).

571 ABI Submission, 12 July 2019 at para 12.4.

572 NDS Submission, 16 July 2019 at para 64.

573 See SCHADS Award, clause 25.5(d).

574 Ai Group Submission, 10 February 2020 at para 166.

575 Mr Shanahan gave evidence that Coffs Coast Health & Community Care Pty Ltd experience client cancellations on a ‘regular basis’ (Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 20); Mr Harvey gave evidence that ConnectAbility experiences client cancellation events on a ‘daily basis’ (Exhibit ABI7 – Witness Statement of Scott Harvey, 2 July 2019 at para 32); Ms Ryan gave evidence that Community Care Options experiences client cancellations on ‘at least a daily basis’ (Exhibit ABI6 – Witness Statement of Deborah Ryan, 12 July 2019 at para 46); Ms Wang gave evidence that CASS Care Limited experiences client cancellations on a ‘regular basis’ (Exhibit ABI9 – Witness Statement of Joyce Wang, 12 July 2019 at para 35); Mr Wright gave evidence that HammondCare experiences client cancellations on a ‘frequent basis’ (Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at para 25).

576 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 22; Exhibit ABI7 – Witness Statement of Scott Harvey, 2 July 2019 at para 37; Exhibit ABI6 – Witness Statement of Deborah Ryan, 12 July 2019 at para 48; Exhibit ABI9 – Witness Statement of Joyce Wang, 12 July 2019 at para 37; Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at para 27; Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 at para 42.

577 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 24.

578 Exhibit ABI7 – Witness Statement of Scott Harvey, 2 July 2019 at para 36.

579 Exhibit ABI6 – Witness Statement of Deborah Ryan, 12 July 2019 at para 47.

580 Exhibit ABI9 – Witness Statement of Joyce Wang, 12 July 2019 at paras 39 - 40.

581 Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at para 29.

582 Exhibit ABI9 – Witness Statement of Joyce Wang, 12 July 2019 at para 35.

583 Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at paras 25 – 26.

584 Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 at paras 40 – 41.

585 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 23; Exhibit ABI7 – Witness Statement of Scott Harvey, 2 July 2019 at paras 39 - 43; Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at para 38.

586 Exhibit ABI7 – Witness Statement of Scott Harvey, 2 July 2019 at paras 39 - 42; Exhibit ABI6 – Witness Statement of Deborah Ryan, 12 July 2019 at para 50.

587 Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 10; Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at paras 13 - 16. However, as Ai Group submits, the evidence does not substantiate the proposition that it is common for employer generally to cancel rostered shifts of part-time employees, without payment, under clause 25.5(f) of the Award.

588 Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 10; Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at paras 13 - 16; Transcript, 15 October 2019, cross-examination of Belinda Sinclair at PN745.

589 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 21.

590 Transcript, 18 October 2019, cross-examination of Deborah Ryan at PN3031-PN3032; Exhibit HSU15 - Same Day Cancellation Log (subject to confidentiality order); also, this is the logical conclusion from considering the interaction of cancellations clauses within service agreements (see Exhibit HSU19 - Baptist Care Commonwealth Home Support Programme (CHSP) pro-forma Service Agreement; Exhibit HSU20 - Baptist Care Home Care Agreement (Level 1) with the terms of clause 25.5(f) of the Award.

591 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 27; Transcript, 17 October 2019, cross-examination of Jeffrey Wright at PN2651; Transcript, 18 October 2019 cross-examination of Wendy Mason at PN3321.

592 Transcript, 17 October 2019, cross-examination of Darren Mathewson at PN2421-PN2424; Transcript, 18 October 2019, cross-examination of Deborah Ryan at PN3020-PN3029, PN3075-PN3080; Exhibit HSU16 - Community Care Options Home Care Agreement Template; Transcript, 18 October 2019, cross-examination of Wendy Mason at PN3237-PN3249; Exhibit HSU19 - Baptist Care Commonwealth Home Support Programme (CHSP) pro-forma Service Agreement; Exhibit HSU20 - Baptist Care Home Care Agreement.

593 Transcript, 18 October 2019, cross-examination of Graham Shanahan at PN2891-2897; cross-examination of Deborah Ryan at PN3020-PN3029, PN3075-PN3080; Exhibit HSU15 - Same Day Cancellation Log (subject to confidentiality order); Exhibit HSU16 - Community Care Options Home Care Agreement Template; Transcript, 18 October 2019, cross-examination of Wendy Mason at PN3237-PN3249; Exhibit HSU19 - Baptist Care Commonwealth Home Support Programme (CHSP) pro-forma Service Agreement; Exhibit HSU20 - Baptist Care Home Care Agreement. Note: Mr Wright provided evidence that cancellation fees cannot be charged under the CHSP however later admitted that this understanding was based on what he had heard from ‘operations people who are in that space within the organisation’ (see Transcript, 17 October 2019, cross-examination of Jeffrey Wright at PN2645-PN2651, PN2702-PN2706). His evidence on this issue should not be preferred, as it is hearsay evidence that directly contradicts other evidence in this matter including that of Mr Shanahan (PN2894), Ms Mason (PN3239) and the terms of the Baptist Care Commonwealth Home Support Programme (CHSP) pro-forma Service Agreement. Similarly, Ms Wang provided evidence that if a client cancelled the service, CASS would not be able to recover income as the clients held the funding, but this evidence is also hearsay, and should not be preferred as she admitted funding arrangements were not her responsibility, and her evidence was based on “what I have heard from” work colleagues (PN3611-PN3616).

594 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 27; Transcript, 17 October 2019, cross-examination of Jeffrey Wright at PN2651; Transcript, 18 October 2019, cross-examination of Wendy Mason at PN3321.

595 Transcript, 18 October 2019, cross-examination of Graham Shanahan at PN2891-PN2897; cross-examination of Wendy Mason at PN3273-PN3274.

596 NDS Submission, 2 July 2019 at paras 30 – 31.

597 ABI Submission, 10 February 2020 at para 49.

598 NDIS Price Guide 2019-20, 1 December 2019, p 18.

599 ABI Submission, 2 July 2019 at para 5.3.

600 ABI Submission, 12 October 2019 at paras 2.24 – 2.25.

601 ABI Submission, 12 October 2019 at para 2.9.

602 NDS Submission, 7 February 2020, p 13.

603 ABI Submission, 12 October 2019 at paras 2.31 – 2.32

604 UWU Submission, 13 September 2020 at para 37.

605 UWU Submission, 13 September 2020 at para 38.

606 ASU Submission, 16 September 2019 at para 34.

607 ABI Submission, 12 October 2019 at para 2.22.

608 HSU Amended Draft Determination, 15 February 2019.

609 HSU Submission, 15 February 2019 at para 61.

610 Ibid.

611 Ibid at para 62.

612 ABI Submission, 12 July 2019 at para 10.8.

613 ABI Submission, 26 February 2020 at para 90.

614 Joint Union Submission, 10 February 2020 at para 27.

615 Ai Group submission, 26 February 2020 at para 149.

616 AFEI Submission, 23 July 2019 at para 154.

617 AFEI Submission, 23 July 2019 at paras 149 – 152.

618 Business SA Submission, 15 July 2019 at paras 6 – 7.

619 Business SA Submission, 15 July 2019 at para 9.

620 Exhibit HSU27 – Witness Statement of Pamela Wilcock, 15 February 2019 at para 11; Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019 at para 36.

621 Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019.

622 Exhibit HSU27 – Witness Statement of Pamela Wilcock, 15 February 2019.

623 Exhibit HSU26 - Witness Statement of Robert Sheehy, 15 February 2019.

624 Exhibit HSU26 - Witness Statement of Robert Sheehy, 15 February 2019 at para 14.

625 Exhibit HSU26 - Witness Statement of Robert Sheehy, 15 February 2019 at para 15.

626 Exhibit HSU26 - Witness Statement of Robert Sheehy, 15 February 2019 at para 16.

627 Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019 at paras 33 – 34.

628 Exhibit HSU27 – Witness Statement of Pamela Wilcock, 15 February 2019 at paras 12 - 14.

629 Exhibit HSU3 - Witness Statement of William Elrick, 14 February 2019 at paras 38 – 39, 41 – 44.

630 ABI Submission, 19 November 2019 at paras 9.8 – 9.9.

631 Exhibit HSU3 - Witness Statement of William Elrick, 14 February 2019 at para 39.

632 Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019 at para 18.

633 Exhibit HSU26 - Witness Statement of Robert Sheehy, 15 February 2019 at para 14.

634 Exhibit HSU3 - Witness Statement of William Elrick, 14 February 2019 at para 41.

635 Exhibit HSU3 - Witness Statement of William Elrick, 14 February 2019 at para 42.

636 Exhibit HSU27 – Witness Statement of Pamela Wilcock, 15 February 2019 at para 13.

637 Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019 at para 33.

638 AFEI Submission, 11 February 2020 at 2-62.

639 AFEI Submission, 11 February 2020 at 2-63.

640 NDS Submission, 7 February 2020 at para 3.4.

641 Exhibit HSU3 - Witness Statement of William Elrick, 14 February 2019 at para 39.

642 Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019 at para 34.

643 Transcript, 17 October 2019, PN2580-PN2581.

644 Exhibit HSU3 - Witness Statement of William Elrick, 14 February 2019 at para 38.

645 Business SA submission, 12 July 2019, at para 11.

646 Joint Union Submission, 10 February 2020 at para 242.

647 AFEI Submission, 11 February 2020 at 2-65.

648 ABI Submission, 10 February 2020, p 62.

649 NDS Submission, 7 February 2020, p 12.

650 UWU Submission, 15 February 2019 at para 58.

651 UWU Submission, 15 February 2019 at paras 54 – 55.

652 UWU Submission, 15 February 2019 at para 59.

653 ABI Submission, 12 July 2019 at para 10.11.

654 ABI Submission, 19 November 2019 at paras 9.13 – 9.14.

655 Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019, at para 18.

656 Ibid at [19].

657 Ibid.

658 Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019.

659 Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019, at paras 18 – 21; Transcript, 15 October 2019 at PN628-PN641.

660 (1995) 62 IR 48.

661 Ibid, p 72.

662 H0008 Dec 1533/97 M Print P7500.

663 Award Modernisation [2009] AIRCFB 826.

664 Award Modernisation [2009] AIRCFB 826 at [136].

665 Part-time and Casual Employment Case at [637].

666 Part-time and Casual Employment Case at [637].

667 Ibid at [641].

668 PR598488.

669 HSU Amended Draft Determination, 15 February 2019.

670 HSU Submission, 18 November 2019 at para 105.

671 HSU Submission, 15 February 2019 at para 45.

672 HSU Submission, 18 November 2019 at paras 105–106.

673 HSU Submission, 15 February 2019 at para 46.

674 HSU Submission, 15 February 2019 at para 47.

675 HSU Submission, 18 November 2019 at paras 105–106.

676 HSU Submission, 18 November 2019 at 107 – 113.

677 Exhibit HSU4 - Witness Statement of Heather Waddell, 15 February 2019 at para 27.

678 Exhibit HSU29 – Witness Statement of Bernie Lobert, 15 February 2019 at para 21.

679 Exhibit HSU27 – Witness Statement of Pamela Wilcock, 15 February 2019 at para 10.

680 Exhibit HSU28 - Witness Statement of Thelma Thames, 15 February 2019 at paras 6 – 7.

681 Exhibit ASU2 – Witness Statement of Robert Steiner, 15 October 2019 at para 17.

682 Exhibit HSU31 – Witness Statement of Scott Quinn, 3 October 2019 at para 43.

683 ABI Submission, 10 February 2020 at para 62.

684 Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019 at para 27.

685 Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019 at para 7.

686 See ALDI Foods Pty Ltd v TWU (2012) 227 IR 120; Premier Pet Pty Ltd trading as Bay Fish v Brown (No 2) [2013] FCA 167; and Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875.

687 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 at [173].

688 Exhibit HSU28 – Witness Statement of Thelma Thames, 15 February 2019 at para 6.

689 Exhibit ASU2 – Witness Statement of Robert Steiner, 15 October 2019 at para 14; Exhibit HSU31 – Witness Statement of Scott Quinn, 3 October 2019 at para 27.

690 SCHADS Award, clause 25.6.

691 Exhibit ABI9 – Witness Statement of Joyce Wang, 12 July 2019 at paras 46 - 48; Transcript, 18 October 2019, cross-examination of Joyce Wang at PN3572 – PN 3605; Transcript, 17 October 2019, cross-examination of Jeffery Wright at PN2652 – PN2658; Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at para 35.

692 Transcript, 18 October 2019, cross-examination of Joyce Wang at PN3605; Transcript, 17 October 2019, cross-examination of Jeffery Wright at PN2659 - PN2667.

693 SCHADS Award, clause 25.1.

694 SCHADS Award, clause 28.1(b)(ii)-(iii).

695 SCHADS Award, clause 25.6(c).

696 Transcript, 18 October 2019, cross-examination of Joyce Wang, PN3605; Transcript, 17 October 2019, cross-examination of Jeffery Wright, PN2659 - PN2667.

697 Transcript, 18 October 2019 at PN3600-PN3605.

698 Transcript, 17 October 2019 at PN2659-PN2667.

699 ABI Submission, 19 November 2019 at 7.7.

700 AFEI Submission, 19 November 2019 at A-3; Ai Group Submission, 18 November 2019 at 7; ABI Submission, 19 November 2019 at 7.9.

701 AFEI Submission, 19 November 2019 at A-4.

702 ABI Submission, 19 November 2019 at 7.10.

703 Exhibit ABI6 - Witness Statement of Deborah Ryan, 12 July 2019 at paras 21, 55 – 57.

704 Exhibit ABI9 – Witness Statement of Joyce Wang, 12 July 2019 at paras 45 – 48.

705 Transcript, 18 October 2019 at PN3578-PN3584.

706 Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at paras 14, 34 – 35. Also see Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 30, Exhibit ABI7 – Witness Statement of Scott Harvey, 2 July 2019 at 50; Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 at para 52.

707 Exhibit HSU28 – Witness Statement of Thelma Thames, 15 February 2019 at para 9.

708 Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at para 17.

709 Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 11. See also Transcript, 17 October 2019, cross-examination of Jeffrey Wright at PN2659.

710 Transcript, 17 October 2019 at PN2727.

711 Transcript, 18 October 2019 at PN3603.

712 Transcript, 15 October 2019 at PN612-PN613.

713 NDIS Price Guide 2019-20, 1 July 2019, CB2796.

714 HSU Submission, 18 November 2019 at para 105.

715 Ibid.

716 NDS Submission, 7 February 2020 at para 22.

717 For example, Exhibit ABI9 – Witness Statement of Joyce Wang, 12 July 2019 at para 49; Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 at para 53; Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at para 37; Exhibit HSU28 - Witness Statement of Thelma Thames, 15 February 2019 at para 9; Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 11; Transcript, 17 October 2019 at PN2659, PN2663-PN2664.

718 Joint union submission, 10 February 2020 at para 19.

719 Part-time and Casual Employment Case at [637].

720 NDIS Price Guide 2019-20, 1 July 2019, CB2796.

721 ABI Submission, 12 July 2019 at 8.26.

722 For example: The Presbyterian Aged Care, NSWNMA and HSU NSW Enterprise Agreement 2017-2020; BaptistCare NSW & ACT Aged Care Enterprise Agreement 2017; McLean Care Ltd (NSW), NSWNMA and HSU NSW Enterprise Agreement 2017-2020; The Lutheran Aged Care Albury NSWNMA and HSU NSW Enterprise Agreement 2017-2020; Diocese of Lismore Care Services, NSWNMA and HSU NSW Enterprise Agreement 2017-2020.

723 AM2018/26 - Information note - Review of part-time hours clauses in Enterprise Agreements.

724 4 yearly review of modern awards – Annual leave [2015] FWCFB 3406.

725 4 yearly review of modern awards – Annual leave [2015] FWCFB 3406 at [242] – [267].

726 [2013] FWCFB 1635 at [229].

727 UWU Draft determination, 7 November 2018.

728 HSU Draft determination, 9 November 2018.

729 September 2019 Decision at [86] – [95].

730 ABI Submission, 5 April 2019 at 6.22 – 6.30.

731 Transcript, 17 April 2019 at PN1997-PN2000.

732 NDS Submission, 5 April 2019 at para 26.

733 September 2019 Decision at [102].

734 September 2019 Decision at [103].

735 [2019] FWCFB 6067 at [105].

736 Joint Union Submission, 10 February 2020 at para 291.

737 AFEI Submission, 3 July 2019 at para 11.

738 Transcript, 16 July 2019 at PN18.

739 September 2019 Decision at [33] – [34].

740 AM2018/26, Survey – SCHADS Award, 2019, Question 14.

741 [2020] FWCFB 1185.

742 ABI Submission, 10 February 2020 at paras 182 – 191.

743 AFEI Submission, 11 February 2020 at para 3-7.

744 NDS Submission, 7 February 2020 at para 43 – 44.

745 NDS Submission, 7 February 2020 at para 46.

746 Joint Union Submission, 10 March 2020 at paras 81 – 84.

747 ABI Submission, 11 March 2020 at para 62.

748 Joint Union Submission, 10 February 2020, Attachment A.

749 ABI Submission, 26 February 2020 at paras 96 – 98.

750 AFEI Submission, 11 February 2020 at paras 3 - 4.

751 ASU Submission, 19 November 2019 at para 100.

752 ABI Submission, 26 February 2020 at para 108.

753 Joint Union Submission, 10 February 2020 at para 299.

754 Joint Union Submission, 10 February 2020 at para 308.

755 ABI Submission, 26 February 2020 at para 123.

756 HSU Submission, 18 November 2019 at paras 48 – 49.

757 HSU Amended Draft Determination, 15 February 2019.

758 HSU Submission, 15 February 2019 at para 73.

759 Exhibit HSU3 – Witness Statement of William Elrick, 14 February 2019.

760 Exhibit HSU3 – Witness Statement of William Elrick, 14 February 2019 at para 27.

761 HSU Submission, 18 November 2019 at para 151.

762 Exhibit ASU10 – Witness Statement of Augustino Encabo, 13 February 2019 at para 27; Exhibit ASU2 – Witness Statement of Robert Steiner, 15 October 2019 at para 13.

763 ABI Submission, 12 July 2019 at para 13.12.

764 Ai Group Submission, 13 July 2019 at paras 482 - 490.

765 NDS Submission, 19 November 2019.

766 AFEI Submission, 23 July 2019 at para 163.

767 AFEI Submission, 23 July 2019 at para 163 citing Award Simplification Decision H0008 Dec 1533/97 M Print P7500.

768 AFEI Submission, 23 July 2019 at para 163 citing Award Simplification Decision H0008 Dec 1533/97 M Print P7500 at Attachment E.

769 AFEI Submission, 23 July 2019 at para 164.

770 Exhibit HSU3 – Witness Statement of William Elrick Statement, 14 February 2019.

771 Transcript, 15 October 2019 at PN1066-PN1084.

772 Exhibit HSU3 – Witness Statement of William Elrick Statement, 14 February 2019 at para 27.

773 Exhibit HSU3 – Witness Statement of William Elrick Statement, 14 February 2019 at para 27.

774 See [2017] FWCFB 5258 at [137] – [148].

775 Joint Union Submission, 10 February 2020 at para 283.

776 [2017] FWCFB 5258.

777 Ibid at [132] – [150].

778 (2012) 205 FCR 227.

779 [2018] FWCFB 3009 at [57].

780 See UWU Submission, 15 February 2019 at paras. 81-110; HSU Submission, 15 February 2019 at paras. 59-60; HSU Amended Draft Determination, 15 February 2019.

781 Joint Union Submission, 10 February 2020 at para 274. See also Transcript, 11 March at PN319-PN325.

782 UWU Submission, 15 February 2019 at para 84.

783 ABI Submission, 12 July 2019 at paras 9.28 – 9.35.

784 Business SA Submission, 12 July 2019 at para 24; AFEI Submission, 23 July 2019 at para 144.

785 UWU Submission, 15 February 2019 at para 101.

786 Ibid at para 92.

787 Ibid at paras 93 - 94.

788 Ibid at para 109.

789 Ibid.

790 Ibid at para 110.

791 UWU Submission, 18 November 2019 at para 57.

792 UWU Submission, 15 February 2019 at para 108.

793 Aged Care Substantive Claims Decision at [47].

794 Aged Care Substantive Claims Decision at [65] – [68].

795 ABI Submission, 12 July 2019 at para 9.13, referring to the Australian Communications and Media Authority, Communications Report 2017-2018, 30 November 2018, p 33.

796 Ibid.

797 Transcript, 17 October 2019, cross-examination of Jeffrey Wright at PN2584; Transcript, 18 October 2019, cross-examination of Graham Shanahan at PN2867-PN2870.

798 Exhibit HSU3 – Witness Statement of William Elrick, 14 February 2019 at paras 31 - 33; Transcript, 17 October 2019, cross-examination of Jeffrey Wright at PN2587-PN2588; Transcript, 18 October 2019, cross-examination of Graham Shanahan at PN2865; Transcript, 18 October 2019, cross-examination of Joyce Wang at PN3554-PN3559.

799 Transcript, 18 October 2019, cross-examination of Graham Shanahan at PN2872.

800 Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 22.

801 Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019 at para 15.

802 Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 20; Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at para 29.

803 Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 20; Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at para 27; Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019 at para 15.

804 Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019 at para 16.

805 Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at para 27; Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019 at para 17; Transcript, 15 October 2019, cross-examination of Deon Fleming, at PN539; Transcript, 18 October 2019, cross-examination of Jeffrey Wright at PN2586; Transcript, 18 October 2019, cross-examination of Graham Shanahan at PN2870.

806 Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019 at para 15.

807 Exhibit HSU27 – Witness Statement of Pamela Wilcock, 15 February 2019 at para 19; Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019 at para 31; Exhibit HSU28 - Witness Statement of Thelma Thames, 15 February 2019 at para 22. There was also evidence of employers providing employees with a ‘tablet computer’ and not a mobile phone (see Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at para 25). However, Mr Lobert stated that none of his three employers provide their employees with a mobile phone (see Exhibit HSU29 – Witness Statement of Bernie Lobert at para 20). Ms Sinclair and Ms Stewart are also not provided with a mobile phone by their employers (see Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019 at para 16; Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 21).

808 Ms Wilcock, Ms Waddell and Mr Lobert all stated that they are required to use either the company-issued mobile phone (in the case of Ms Wilcock and Ms Waddell) or their personal mobile phone (in the case of Mr Lobert) in the course of their duties (see Exhibit HSU27 – Witness Statement of Pamela Wilcock, 15 February 2019 at para 19; Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019 at para 31; Exhibit HSU29 – Witness Statement of Bernie Lobert at para 20).

809 See Exhibit HSU3 – Witness Statement of William Elrick Statement, 14 February 2019 at para 30.

810 See Transcript, 15 October 2019, cross-examination of Trish Stewart at PN440-PN452; Transcript, 15 October 2019, cross-examination of Deon Fleming at PN534-PN540.

811 Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at para 29.

812 Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019 at para 15.

813 Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 20.

814 Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at para 27.

815 Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 21.

816 Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at para 27; Exhibit HSU3 - Witness Statement of William Elrick, 14 February 2019 at para 31; Transcript, 15 October 2019, cross-examination of William Elrick at PN1075-PN1080.

817 Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at para 27.

818 Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 21; Transcript, 15 October 2019, cross-examination of Trish Stewart at PN453-PN455.

819 Transcript, 15 October 2019, cross-examination of Trish Stewart at PN440-PN445; Transcript, 15 October 2019, cross-examination of Deon Fleming at PN533-PN538.

820 UWU Submission, 3 October 2019 at para 37.

821 Transcript, 15 October 2019 at PN445-PN449, PN547.

822 See for example clause 20.3(d) of the Air Pilots Award 2020, clause B.1.10 of the Aircraft Cabin Crew Award 2020, clause 15.3(d) of the Broadcasting and Recorded Entertainment Award 2020, clause 22.3(f) of the Health Professionals and Support Services Award 2020, clause 18.3(b) of the Medical Practitioners Award 2020, clause 31.2 of the Plumbing and Fire Sprinklers Award 2010 and clause 18.2(b) of the Rail Industry Award 2020.

823 Clause 17.2(e).

824 Clause 18.3(b).

825 Clause 18.4(b).

826 Clause 17.7.

827 Clause 18.2(i).

828 Exhibit AIG4 – Handbook from Multicultural New South Wales website.

829 September 2019 Decision.

830 [2019] FWC 8251.

831 ASU Submission 7 February 2020 at para 4.

832 Other than in response to Question 1 of Background Paper 3 which asked the parties to advise what evidence they sought to rely upon for the community language allowance claim. See Joint Union Submission, 10 March 2020 at p 4.

833 ASU Submission, 17 May 2019 at para 20.

834 Award titles and clause references have been updated to reflect the current modern awards.

835 Each of these awards have now been varied during the 4 yearly review, the current award titles are: Health Professionals and Support Services Award 2020, Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020 and Airline Operations – Ground Staff Award 2020. Clause references have been amended in the new awards.

836 NDS Submission, 5 April 2019 at paras 8 – 17; NDS Submission, 17 May 2019 at paras 2 – 8, 19 – 31.

837 NDS Submission, 17 May 2019 at paras 3 – 7.

838 NDS Submission, 17 May 2019 at paras 19 – 31.

839 See Part 8 of that reply submission, noting that certain aspects of that submission are no longer applicable to the new ASU claim.

840 AFEI Submission, 26 February 2020 at para 1.67.

841 AFEI Submission, 8 April 2019 at paras 31 – 33; AFEI Submission, 22 May 2019 at paras 13 – 15, 18 – 19.

842 Exhibit ASU11 – Witness Statement of Dr Ruchita, 14 February 2019; Transcript, 16 April 2019 at PN526-PN588.

843 Exhibit ASU12 – Witness Statement of Nadia Saleh, 14 February 2019; Transcript, 16 April 2019 at PN592-PN644.

844 Exhibit ASU14 – Witness Statement of Lou Bacchiella, 13 February 2019; Transcript, 16 April 2019 at PN709-PN792.

845 Exhibit ASU13 – Witness Statement of Natalie Lang, 18 February 2019; Transcript, 16 April 2019 at PN648-PN700.

846 For summary of Dr Ruchita’s evidence, see generally Background Paper, 4 yearly review of modern awards – Award stage – Group 4 – Social, Community, Home Care and Disability Services Industry Award 2010 – Substantive Claims, 4 December 2019 at [11] – [17].

847 Exhibit ASU11, Witness Statement of Dr Ruchita, 14 February 2019 at paras 19 – 22.

848 Transcript, 16 April 2019, cross-examination of Dr Ruchita at PN567-PN577.

849 For summary of Ms Saleh’s evidence, see generally Background Paper, 4 yearly review of modern awards – Award stage – Group 4 – Social, Community, Home Care and Disability Services Industry Award 2010 – Substantive Claims, 4 December 2019 at [18] – [25].

850 Also see Transcript, 16 April 2019, cross-examination of Nadia Saleh at PN623.

851 Transcript, 16 April 2019, cross-examination of Nadia Saleh at PN610.

852 Transcript, 16 April 2019, cross-examination of Nadia Saleh at PN613.

853 Transcript, 16 April 2019, cross-examination of Nadia Saleh at PN613, PN620, PN622.

854 Exhibit ASU12 – Witness Statement of Nadia Saleh, 14 February 2019 at para 30.

855 Exhibit ASU12 – Witness Statement of Nadia Saleh, 14 February 2019 at paras 31 – 32.

856 Exhibit ASU12 – Witness Statement of Nadia Saleh, 14 February 2019 at para 37.

857 For summary of Ms Lang’s evidence, see generally Background Paper, 4 yearly review of modern awards – Award stage – Group 4 – Social, Community, Home Care and Disability Services Industry Award 2010 – Substantive Claims, 4 December 2019 at [33] – [36].

858 Exhibit HSU13 – Witness Statement of Natalie Lang, 18 February 2019 at paras 12 – 14.

859 For summary of Mr Bacchiella’s evidence, see generally Background Paper, 4 yearly review of modern awards – Award stage – Group 4 – Social, Community, Home Care and Disability Services Industry Award 2010 – Substantive Claims, 4 December 2019 at [26] – [32].

860 Transcript, 16 April 2019, cross-examination of Mr Bacchiella at PN718.

861 Exhibit ASU14 – Witness Statement of Lou Bacchiella, 13 February 2019 at para 12.

862 Transcript, 16 April 2019, cross-examination of Lou Bacchiella at PN725.

863 The reference to ‘FACS’ in this part of Mr Bacchiella’s statement means ‘Family and Community Services’.

864 ASU Submission, 18 February 2019 at para 39.

865 Ibid at para 42.

866 Ibid at para 43.

867 Ibid at para 45.

868 Ibid at para 46.

869 Ibid at para 50.

870 Ibid at para 52.

871 Dr Ruchita and Ms Nadia Saleh.

872 Mr Lou Bacchiella.

873 Ms Natalie Lang.

874 [2020] FWCFB 6333.

875 NDS Submission, 21 December 2020 at para 11.

876 ASU Submission, 15 January 2021 at paras 7 – 8.

877 ASU Submission, 15 January 2021 at para 9.

878 AFEI Submission, 21 December 2020 at para 4.

879 AFEI Submission, 21 December 2020 at para 5.

880 Ai Group Submission, 20 January 2021 at paras 5 – 6.

881 Ai Group Submission, 20 January 2021 at para 8.

882 Ai Group Submission, 20 January 2021 at paras 45 – 48.

883 [2012] FWAFB 1000 at [78].

884 [2015] FWCFB 8200.

885 Equal Remuneration Decision 2015 [2015] FWCFB 8200 at [231] – [237].

886 The Acts Interpretation Act 1901 applies as at 25 June 2009 in accordance with s.40A of the Act.

887 ABI Submission, 10 February 2020, p 58.

888 ABI Submission, 10 February 2020, p 70.

889 This list has been revised to accommodate any inconsistent referencing throughout the course of the proceedings. For completeness, this list also includes materials relevant to the community language allowance claim that were tendered during the Tranche 1 hearings.

890 This was a joint submission between the ASU, HSU and UWU.

891 This was a joint submission between the ASU, HSU and UWU.

892 This was a joint submission between the ASU, HSU and UWU.

893 This was a joint submission between the ASU, HSU and UWU.

894 This was a joint submission with the UWU.

895 This was a joint submission between the ASU, HSU and UWU.

896 This was a joint submission between the ASU, HSU and UWU.

897 This was a joint submission between the ASU, HSU and UWU.

898 This was a joint submission between the ASU, HSU and UWU.

899 Jobs Australia subsequently confirmed its support for submissions in reply to made by NDS. See Jobs Australia Submission, 5 April 2019.

900 This was an agreed submission from AFEI, ASU and NDS.

901 This was a joint submission with the HSU.

902 This was a joint submission between the ASU, HSU and UWU.

903 This was a joint submission between the ASU, HSU and UWU.

904 This was a joint submission between the ASU, HSU and UWU.

905 This was a joint submission between the ASU, HSU and UWU.

906 Note that paragraphs 54, 56 and 58 of NDS1 – Witness Statement of David Moody were withdrawn during the course of the proceedings.

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