4 yearly review of modern awards—Social, Community, Home Care and Disability Services Industry Award (AM2018/26 & AM2020/100)
[2021] FWCFB 5244
•25 AUGUST 2021
| [2021] FWCFB 5244 |
| 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
(AM2018/26 & AM2020/100)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 25 AUGUST 2021 |
4 yearly review of modern awards – award stage – group 4 awards – substantive issues – Social, Community, Home Care and Disability Services Industry Award 2010
| Chapters | Paragraph | |
| 1 | Background | [1] |
| 2 | This Decision | [10] |
| 3 | Working Arrangements | [20] |
| 3.1 Broken shifts | [23] | |
| 3.2 Minimum payments | [54] | |
| 3.3 Roster changes | [138] | |
| 3.4 Client cancellation | [143] | |
| 3.5 Travel time | [219] | |
| 4 | Overtime | [232] |
| 5 | 24-hour care clause | [265] |
| 6 | Equal remuneration order | [279] |
| 7 | Operative date | [283] |
| 8 | Next Steps | [326] |
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 |
Commission | Fair Work Commission |
ERO | Equal Remuneration Order |
HSU | Health Services Union |
May 2021 Decision | 4 yearly review of modern awards – Social, Community, Home Care and Disability Industry Award 2010 [2021] FWCFB 2383 |
NDIA | National Disability Insurance Authority |
NDIS | National Disability Insurance Scheme |
NDS | National Disability Services |
Part-time and Casual Employment Case | 4 yearly review of modern awards – Part-time employment and Casual employment [2017] FWCFB 3541 |
Penalty Rates Case | 4 yearly review of modern awards – Penalty Rates [2017] FWCFB 1001 |
Penalty Rates (Transitional Arrangements) Decision | 4 yearly review of modern awards – Penalty Rates – Transitional Arrangements [2017] FWCFB 3001 |
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 |
UWU | United Workers’ Union |
1. Background
[1] On 4 May 2021 we issued a decision 1 in relation to the Tranche 2 claims in the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) (the May 2021 Decision) in whichwe rejected a number of claims,2 decided to make a number of variations to the SCHADS Award and expressed some provisional views in respect of certain issues. This decision is to be read in conjunction with the May 2021 Decision.
[2] Interested parties were initially directed to file any submissions and evidence in respect of our provisional views and the draft determination by4.00pm (AEST) on Tuesday 27 July 2021. These directions were subsequently varied on a number of occasions and the timeline extended, at the request of various parties. Ultimately, any submissions and evidence were to be filed by no later than 4.00pm (AEST) on Tuesday 3 August 2021.
[3] On 3 August 2021 the Commission issued a Statement 3 in which it agreed to a request from a number of employer and union parties to amend the directions so that the issues relating to remote response and damaged clothing would be dealt with separately from those that were to be the subject of the hearing on 6 August 2021. The conference in respect of remote response and damaged clothing took place at 9.30am (AEST) on Thursday 19 August 2021 before Deputy President Clancy.
[4] Submissions have been received in respect of the remaining provisional views and draft determination from the following interested parties:
• Australian Services Union (ASU)
• United Workers’ Union (UWU)
• Australian Industry Group (Ai Group)
• National Disability Services (NDS)
• Australian Federation of Employers and Industries (AFEI)
• Australian Business Industrial (ABI)
• Health Services Union (HSU)
• Australian Unity
• Australian Community Industry Alliance
• Home Care Assistance
• Includa
• Fighting Chance Australia
• ZestCare
• HireUp
• Australian Association of Private Nursing Services
[5] On 5 August 2021, the Commission issued a document summarising the submissions received. No party took issue with the summary. 4 We have taken all of the submissions into account but, save for our consideration of the principal arguments advanced, we do not restate the submissions in our decision.
[6] Witness Statements were filed by Ai Group and AFEI:
Ai Group
• Aleysia Leonard (National Human Resources Business Partner, at Programmed Health Professionals Pty Ltd)
• Christopher Chippendale (Executive Lead Disability Engagement, at Life Without Barriers)
• Christopher Nillsen (Project Manager – Shared Services, at Life Without Barriers)
• Craig MacArthur (National Finance Lead – Aged Care, at Life Without Barriers)
• Richard Cabrita (Operations Manager – ACT, at Life Without Barriers)
AFEI
• Kylie Lambert (Director and Co-Founder of Daughterly Care Community Services Limited).
[7] Ai Group filed a supplementary submission on 5 August 2021, which included an amended witness statement of Aleysia Leonard.
[8] A confidentiality order was issued in respect of aspects of the witness statements of Christopher Nillsen, Christopher Chippendale, Craig MacArthur, Richard Cabrita and Aleysia Leonard.
[9] The matter was listed for Hearing on Friday, 6 August 2021 at 9:30am. The transcript of the hearing is available here.
2. This Decision
[10] During the course of the proceedings on 6 August 2021, a broad consensus emerged that aspects of the broken shift issue should not be determined to finality on that day.
[11] In a Statement 5 published on 9 August 2021 (9 August 2021 Statement), we decided that the following matters in respect of the broken shift issue will be the subject of a further opportunity to file submissions and evidence:
1. NDS’ proposal that the first sentence of clause 25.6 of the draft determination be amended to read:
‘This clause only applies to day workers who are social and community service employees when undertaking disability services work and home care employees.’
2. NDS’ proposal that clause 25.6(d) of the draft determination be amended to read:
‘Payment for a broken shift will be at ordinary pay with weekend and overtime penalty rates, including for time worked outside the span of hours, to be paid in accordance with clauses 26 and 28.’
3. The ASU proposal that clause 25.6(d) of the draft determination be amended as follows:
‘Payment for a broken shift will be at ordinary pay with shift, weekend, public holiday, and overtime, penalty rates to be paid in accordance with clauses 26, and 28, 29 and 34.’
4. The ASU proposal that, in the absence of a provision for paid travel time, the SCHADS Award should provide a clear statement that employees must not be required to travel between work locations during their meal breaks and that overtime should be payable until an employee is allowed a meal break free from travel. 6 The ASU has filed a draft determination in respect of this issue.
[12] In the 9 August 2021 Statement we issued directions that any submissions and evidence in respect of remote response, damaged clothing and the particular issues set out in [11] above were to be filed by no later than 4.00pm (AEST) on Wednesday, 25 August 2021. Any submissions and evidence in reply are to be filed by no later than 4.00pm (AEST) on Monday 30 August 2021.
[13] The hearing inrespect of these remaining matters will take place at 9:30am (AEST) on Wednesday 1 September 2021.
[14] Save for the matters which are the subject of the hearing on 1 September 2021, and the transitional arrangements applying to minimum payments for part-time employees, this decision finalises the provisional views expressed in the May 2021 Decision and the terms of the variation determination arising from that decision.
[15] In the next 5 sections of our decision, we set out our reasons for deciding to vary the SCHADS Award in the following ways:
Broken shifts
1. We confirm our provisional view that the additional remuneration for working a broken shift should be expressed as a percentage of the standard rate.
2. Two technical amendments are made in respect of the requirement that an employee’s consent be given on each occasion that they work a 2 break broken shift:
• To provide that if a part-time employment agreement under clause 10.3 includes the working of a 2 break broken shift then there is no need for an additional requirement that consent be obtained on each occasion that the 2 break broken shift is worked.
• To delete the reference to ‘rostered to work’ in clause 25.6(b) as it may have the unintended consequence of requiring that an employee’s consent to work a 2 break broken shift be given at least 2 weeks before the shift is worked.
Minimum payments
3. The determination arising from our decision will include a transitional arrangement applying to minimum payments for part-time employees. The particular characteristics of the transitional arrangement are the subject of a provisional view to which we shall return shortly.
Roster changes
4. Clause 25.5(d)(ii) will be varied as follows:
‘(ii) However, a roster may be changed at any time:
(A) (A) if the change is proposed by an employee to accommodate an agreed shift swap with another employee, subject to the agreement of the employer; or
(B) to enable the service of the organisation to be carried on where another employee is absent from duty on account of illness, or in an emergency.’
Client cancellation
5. Clause 25.5(f)(i) will be amended as follows:
‘Clause 25.5(f) applies where a client cancels or changes a scheduled home care or disability service, within 7 days of the scheduled service, which a full-time or part-time employee was rostered to provide. For the purposes of clause 25.5(f), a client cancellation includes where a client reschedules a scheduled home care or disability service.’
6. Clauses 25.5(f)(ii)(B), (iv)(A), (v) and (vii)(C) from the draft determination have been amended such that they refer to ‘part of a shift’ or to a ‘service’, rather than to just a ‘shift’.
7. Clause 25.5(f)(vi) – dealing with ‘double dipping’ – is to be deleted from the draft determination.
9. The requirement to publish make-up time on a normal roster will be removed and will be replaced by a requirement to provide the employee with 7 days’ notice of the make-up time (or a lesser period by agreement).
10. An additional term will be added to subclause 25.5(f)(vi) as follows:
‘(E) an employee who works make-up time will be paid the amount payable had the employee performed the cancelled service or the amount payable in respect of the work actually performed, whichever is the greater.’
Travel time
11. Further consideration of the various travel time claims will be deferred until the variations in respect of minimum payment and broken shifts have been in operation for 12 months.
Overtime
12. We confirm our provisional view that overtime is payable in respect of work performed by day workers outside the ordinary span of hours. Clause 28.1(a) of the draft determination will be amended slightly, as follows:
‘28.1 Overtime rates
(a) Full-time employees
A full-time employee will be paid the following payments for all work done in addition to their rostered ordinary hours on any day and, in the case of day workers, for work done outside the span of hours under clause 25.2(a)(day workers only):’
13. We confirm our provisional view that, in respect of part-time employees, the SCHADS Award should be varied in 2 respects:
1. To make it clear that working additional hours is voluntary, and
2. To introduce a mechanism whereby a part-time employee who regularly works additional hours may request that their guaranteed hours be reviewed and increased, and their employer cannot unreasonably refuse such a request.
14. The following amendments will be made to clause 10.3(g)–Review of guaranteed hours in the draft determination:
• Clause 10.3(g)(i) will be amended as follows:
‘(i) Where a part-time employee has regularly worked more than their guaranteed hours for at least 12 months, the employee may request in writing that the employer vary the agreement made under clause 10.3(c), or as subsequently varied under clause 10.3(e), to reflect the ordinary hours regularly being worked increase their guaranteed hours…’
• The example below clause 10.3(g)(iii) will be deleted.
• A new clause 10.3(g)(viii) will be inserted as follows:
‘(viii) An employee cannot make a request for a review of their guaranteed hours when:
(A) The employee has refused a previous offer to increase their guaranteed hours in the last 6 months; or
(B) The employer refused a request from the employee to increase their guaranteed hours based on reasonable business grounds in the last 6 months.’
24 Hour Care clause
15. Clause 31.2(b) of the draft determination, in relation to quantum of leave, will be amended to limit the provision of the additional week of annual leave to employees who have worked at least eight 24-hour care shifts ‘during the yearly period in respect of which their annual leave accrues.’
Equal remuneration
16. A minor amendment will be made to the headings of the table in the Note at the end of clause 15.
Operative date
17. The variations arising from these proceedings will commence operation from the first pay period on or after 1 July 2022.
[16] These matters set out above have now been decided.
[17] The only outstanding matter arising from this decision concerns our provisional view regarding the particular characteristics of the transitional arrangement which will apply to minimum payments for part-time employees. It is our provisional view that the transitional arrangement should have the following characteristics:
1. Limited scope:
(a) it only applies to part-time employment arrangements which:
(i) were entered into before 1 March 2022; and
(ii) provide for a period of continuous work of less than 3 hours for social and community services employees (except when undertaking disability services work) and 2 hours for all other employees(and therefore are affected by the variation).
2. It imposes an obligation to consult and negotiate in good faith regarding changes to the agreed pattern of work.
3. If no agreement is reached, then the employer can unilaterally alter the agreed pattern of work to provide for periods of continuous work of 3 or 2 hours (depending on the nature of the work performed), with 28 days’ notice in writing.
4. Any unilateral alteration to the agreed pattern of work cannot come into operation before 1 July 2022 (the implementation date of the minimum payment term).
5. The transitional arrangements will come into operation on 1 March 2022 and cease operation (and be removed from the Award) on 1 October 2022.
[18] A draft term which gives effect to our provisional view is set out at [130].
[19] It is convenient to deal with the issues thematically, beginning with those issues which relate to working arrangements.
3. Working Arrangements
[20] This section deals with outstanding issues in relation to:
• broken shifts
• minimum payments
• variations to rosters
• client cancellations, and
• travel time.
[21] These matters all relate to the scheduling of work in the SCHADS industry and are interconnected.
[22] In the May 2021 Decision, we made the following findings about working arrangements generally in the SCHADS sector 7:
1. Short shifts or engagements are a very common feature in the home care and disability services sectors. Some employees are engaged for only 30 minutesand in some instances for only 15 minutes.
2. Broken shifts are commonly utilised by employers covered by the SCHADS Award and there is a very high incidence of broken shifts in the home care and disability services sectors.
3. The length of an engagement that forms part of a broken shift can vary from 15 minutes to 7 hours and there is significant variation in the duration of the break period.
4. Most employees are not paid for time spent travelling to and from clients, (which includes travelling between clients and travelling to the first client and from the last client).
5. The combination of unpaid travel time, broken shifts and short engagements can result in a significant amount of ‘dead time’ for employees, that is, time spent travelling without payment or time spent waiting between broken shifts.
6. Employees report a range of adverse consequences with working broken shifts with short engagements and unpaid travel time, in particular:
• they interfere with the employee’s time with family and friends, with their hobbies or with their involvement in the community
• broken shifts and short engagements mean a longer span of hours to make the same money they would make if they were rostered continuously. The span of hours may be 12 hours, but the employee is only paid for 4 to 5 hours work; this can be very tiring
• short engagements are not worth the time and cost involved
• home care employees can be required to travel significant distances, the travel time is unpaid, and it is uneconomical to work, and
• broken shifts can be ‘very disruptive’; an employee may ‘need to sit around for 2-3 hours waiting for a shift to start that only lasts for 15 minutes’.
3.1 Broken shifts
3.1.1 Background
[23] A ‘broken shift’ is defined in clause 25.6(a) of the SCHADS Award to mean ‘a shift worked by an employee that includes one or more breaks (other than a meal break) and where the span of hours is not more than 12 hours.’
[24] In the May 2021 Decision, we made a finding that broken shifts are commonly utilised by employers covered by the SCHADS Award and there is a very high incidence of broken shifts in the home care and disability services sectors. In addition to that finding, we made the following findings in respect of broken shifts: 8
1. It is the preferred practice of some employers to roster on the basis that there is only 1 break in any shift (unexpected client cancellation being the main reason to depart from this practice). Further, it is the practice of some employers to pay a broken shift allowance; other employers only have employees work a broken shift by agreement.
2. Most broken shifts involve 2 portions of work and 1 break. Occasionally broken shifts involve more than 1 break.
3. Broken shifts can cover a significant span of hours (up to 12 hours) which can include a substantial amount of ‘unpaid time’.
4. Where broken shifts are worked, there is significant variation in the duration of the break period. Some broken shifts involve a break period of less than 1 hour, while other broken shifts involve a break period of 6-8 hours.
5. During breaks in a broken shift, employees sometimes spend time at home or undertaking non-work related activities. On other occasions a considerable proportion of the period of the break is used in undertaking unpaid travel or the duration of the break is insufficient to enable the employee to engage in other meaningful activity.
6. Employees report a range of adverse consequences with working broken shifts with short engagements and unpaid travel time.
[25] In section 5.3 of the May 2021 Decision, we set out our reasons for deciding to vary clause 25.6 of the SCHADS Award in order to: 9
• define a broken shift as a shift consisting of 2 separate periods of work with a single unpaid ‘break’ (other than a meal break);
• clarify how this interacts with the new minimum payment clause; and
• accommodate the occasional need for broken shifts involving more than 1 unpaid break, subject to:
• a maximum of 2 unpaid ‘breaks’ in the shift
• a 2 break shift would be subject to the agreement of the employee, on a per occasion basis, and
• a 2 break shift would be subject to a higher payment than that payable for a 1 break shift, in recognition of the additional disutility.
[26] We dealt with the s.134 considerations at [493] to [503] of the May 2021 Decision and at [504] concluded as follows:
‘The modern awards objective is to ‘ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions’, taking into account the particular considerations identified in ss.134(1)(a)–(h) of the Act. We have taken into account those considerations insofar as they are presently relevant and have decided to vary the SCHADS Award as proposed at [488] above.’
[27] This aspect of the May 2021 Decision is given effect in Item 11 of the draft determination, as follows:
‘By deleting clause 25.6 and inserting the follows:
25.6 Broken shifts
This clause only applies to social and community services employees when undertaking disability services work and home care employees.
(a) Broken shift with 1 unpaid break
(i) An employer may only roster an employee to work a broken shift of 2 periods of work with 1 unpaid break (other than a meal break).
(ii) An employee rostered to work a broken shift with 1 unpaid break must be paid the allowance in clause 20.10(a).
(b) Agreement to work a broken shift with 2 unpaid breaks
(i) Despite clause 25.6(a), an employer and an employee may agree that the employee will be rostered to work a broken shift of 3 periods of work with 2 unpaid breaks (other than meal breaks).
(ii) An agreement under clause 25.6(b)(i) must be made on each occasion that the employee will be rostered to work a broken shift with 2 unpaid breaks.
(iii) An employee rostered to work a broken shift with 2 unpaid breaks must be paid the allowance in clause 20.10(b).
(c) Where a break in work falls within a minimum payment period in accordance with clause 10.5 then it is to be counted as time worked and does not constitute a break in a shift for the purposes of clause 25.6(a)(i) or clause 25.6(b)(i).
(d) Payment for a broken shift will be at ordinary pay with weekend and overtime penalty rates to be paid in accordance with clauses 26 and 28.
(e) The span of hours for a broken shift is up to 12 hours. All work performed beyond a span of 12 hours will be paid at double time.
(f) An employee must receive a minimum break of 10 hours between broken shifts rostered on successive days.’
[28] We also expressed the following provisional views: 10
1. The additional remuneration for working a broken shift under clause 25.6 of the SCHADS Award should be an allowance calculated as a percentage of the standard weekly rate.
2. An employee working a ‘1 break’ broken shift under clause 25.6 should receive a broken shift allowance of 1.7% of the standard rate, per broken shift.
3. The broken shift allowance payable for a ‘2 break’ broken shift should be set at 2.5% of the standard rate.
4. An employee who is a day worker performing work outside of the ordinary span of hours (including as part of a period of work in a broken shift) is entitled to overtime for such work.
[29] It is common ground that the additional remuneration for working a broken shift should be expressed as a percentage of the standard rate. On that basis we confirm provisional view 1 above and need say no more about that matter.
[30] As mentioned earlier, a number of matters in respect of the broken shift issue are to be the subject of a further hearing on 1 September 2021. Some of these matters may interact with submissions parties may wish to make about the quantum of the broken shift allowances, which are the subject of provisional views 2 and 3 above. For that reason, we do not propose to determine those matters in this decision. A decision in respect of those matters will be issued after the hearing on 1 September 2021.
[31] We deal with provisional view 4 in Section 4 Overtime of this decision.
[32] There is one other matter relating to broken shifts which we propose to deal with now; it concerns the requirement that an agreement to work a ‘2 break’ broken shift must be made on each occasion that an employee is rostered to work such a shift.
3.1.2 Requirement for agreement on ‘each occasion’
[33] Ai Group submits that this issue should be the subject of further consideration and that the draft determination be amended to replace clause 25.6(b)(ii) with the following: 11
‘(ii) For the purposes of clause 25.6(b)(i), an employer and an employee may agree that the employee will be rostered to work a broken shift (or broken shifts) with 2 unpaid breaks:
(A) On an ongoing basis;
(B) On a temporary basis;
(C) In relation to a specific broken shift (or broken shifts);
(D) In relation to a specific day (or days) of the roster cycle; and / or
(E) In any other manner agreed by the employer and employee.’
[34] Ai Group submits that the May 2021 Decision does not detail the rationale for requiring that agreement must be reached on each occasion and that this issue should be further considered having regard to ‘the substantial regulatory burden that it will impose on employers’. 12 Ai Group contends that requiring agreement on a per occasion basis will give rise to a range of practical issues, including that:13
• an employer will be required to obtain an employee’s agreement before the roster is published (per clause 25.6(b)(i));
• the ability for employees to agree to work such shifts on some occasions but not others will create significant uncertainty for an employer endeavouring to roster employees and schedule client services; and
• if an employee has been engaged on the condition that they work broken shifts, it would be unfair to invalidate such arrangements and it is foreseeable that in some instances this would jeopardise the ongoing viability of the individual’s employment.
[35] We note here that no evidence is referred to by Ai Group in support of the proposition for the requirement that an agreement be reached on each occasion will impose a substantial regulatory burden on employers.
[36] Ai Group also submits that its earlier submissions (summarised at [511] in the May 2021 Decision) are relevant to this issue and that those submissions appear to have been endorsed in the May 2021 Decision (at [513]).
[37] It is convenient to deal with the last point first.
[38] The earlier Ai Group submissions referred to were put in response to a claim by the HSU that sought to vary clause 25.6 in a number of respects, including: 14
• imposing a limitation of ‘1 break’ per shift such that a shift could only be ‘broken’ into 2 parts on a given day, and
• providing that a broken shift could only be worked by agreement between the employer and employee.
[39] At [513] of the May 2021 Decision we said:
‘In these circumstances and having regard to the matters raised by Ai Group, we are not persuaded that the change proposed in respect of the default of ‘1 break’ shifts has the requisite merit.’
[40] The above conclusion – that the HSU’s claim that a 1 break broken shift can only be worked by agreement lacked the requisite merit – says nothing about conditions associated with 2 break broken shifts.
[41] The more significant obstacle confronting Ai Group’s submissions in respect of this issue is the fact that we have determined the issue that it now seeks to reagitate. The requirement for agreement ‘on each occasion’ that an employee is to work a 2 break broken shift was determined in the May 2021 Decision; it was not one of the matters about which we expressed a provisional view.
[42] The rationale for requiring an agreement on each occasion is simple. The adverse impact on employees (or disutility) of multiple breaks in a broken shift is likely to be greater than a single break between 2 portions of work. Multiple breaks between engagements are likely to result in increased ‘dead time’; time for which employees are not paid. 15 The requirement for agreement on each occasion is an important safeguard – it ensures employees consent to the particular 2 break broken shift which they are being asked to work and the disutility associated with it.
[43] The May 2021 Decision made it clear that the issue now agitated by Ai Group had been determined. We do not propose to reopen consideration of these matters in the manner sought by Ai Group. As we noted in the 9 August 2021 Statement, we are conscious of the need to provide certainty in respect of award variations arising from these proceedings and to do so as quickly as possible. That process will be impeded if parties persist in seeking to reagitate concluded issues.
[44] We are, however, prepared to consider technical amendments which concern the manner in which our substantive decision has been given effect in the terms of the draft determination; we now turn to those matters.
3.1.3 Technical amendments
[45] There are 2 technical amendments in relation to the requirement that the working of a 2 break broken shift must be the subject of an agreement on each occasion such a shift is worked, namely:
• agreements between employers and part-time employees regarding working arrangements; and
• the interaction between clause 25.6(b)(i) in the draft determination and the requirement in clause 25.5(a) of the SCHADS Award regarding the preparation and provision of fortnightly rosters 2 weeks in advance of each roster period.
(i) Part-time employment agreements
[46] In the course of oral argument ABI addressed the interaction between the requirement for agreement on a per occasion basis under proposed clause 25.6(b)(ii) and clause 10.3, as follows:
‘under clause 10.3(c) there will be agreed – or employers and employees may well agree on a fixed pattern of work on an ongoing basis. And we say if that agreed pattern includes a two break broken shift … that would be appropriate on an ongoing basis, rather than there being this additional requirement to obtain consent on a per occasion basis.’ 16
[47] There is considerable force in the submission put. Clause 10.3 provides a framework for an employer and a part-time employee to reach agreement on the employee’s regular pattern of work; such an agreement must be in writing. In particular, clause 10.3(c) provides that before commencing employment, the employer and part-time employee are required to enter into an agreement in writing on:
(i) a regular pattern of work including the number of hours to be worked each week; and
(ii) the days of the week the employee will work and the starting and finishing times each day.
[48] Such an agreement may subsequently be varied by agreement in writing and any such agreement may be ongoing or for a specified period of time (clause 10.3(e)).
[49] We accept that if a part-time employment agreement under clause 10.3 includes the working of a 2 break broken shift then there is no need for an additional requirement that consent be obtained on each occasion that the 2 break broken shift is worked. We will amend the draft determination accordingly.
(ii) Interaction between clause 25.5(a) and 25.6(b)(i)
[50] Clause 25.5 of the SCHADS Award deals with rosters. Clauses 25.5(a) states:
‘The ordinary hours of work for each employee will be displayed on a fortnightly roster in a place conveniently accessible to employees. The roster will be posted at least two weeks before the commencement of the roster period.’
[51] Clause 25.5(d)(i) requires that 7 days’ notice be given of a change in roster.
[52] The short point raised by Ai Group is that under clause 25.6(b)(i) of the draft determination ‘an employer would be required to obtain an employee’s agreement before the roster is published’. 17
[53] We did not consider the interaction with clause 25.5 in the May 2021 Decision. We accept that the reference to ‘rostered to work’ in proposed clause 25.6(b)(i) may have the unintended consequence of requiring that the employee’s consent to work a 2 break broken shift be given at least 2 weeks before the shift is worked. To address this issue, we will amend clause 25.6(b) in the draft determination, as follows:
(b) Agreement to work a broken shift with 2 unpaid breaks
(i) Despite clause 25.6(a), an employer and an employee may agree that the employee will be rostered to work a broken shift of 3 periods of work with 2 unpaid breaks (other than meal breaks).
(ii) An agreement under clause 25.6(b)(i) must be made before each occasion that the employee will be rostered is to work a broken shift with 2 unpaid breaks unless the working of the 2 break broken shift is part of the agreed regular pattern of work in an agreement made under clause 10.3 or subsequently varied.
(iii) An employee rostered to work who works a broken shift with 2 unpaid breaks must be paid the allowance in clause 20.10(b).
3.2 Minimum payments
3.2.1 Background
[54] Minimum engagement terms in modern awards specify the minimum time for each engagement or shift and hence the minimum payment to which an employee is entitled for each engagement or shift worked. As we noted in the May 2021 Decision, ‘minimum engagement terms protect employees from exploitation by ensuring that they receive a minimum payment for each attendance at their workplace to justify the cost and inconvenience of each such attendance.’ 18 We also noted that while this type of award clause is commonly described as a minimum engagement term, the existing SCHADS Award clause and our proposed clause operate as a minimum payment term. 19
[55] In the May 2021 Decision, we made the following findings relating to this issue 20:
1. Short shifts are a very common feature in the home care and disability services sectors.In the home care and disability support areas employers regularly engage employees to work shifts of a duration of less than 3 hours.
2. The incidence of short shifts is reflective of the nature of the services provided in this industry, and the personal care services, domestic care services, and lifestyle services that are provided which include:
• medication prompting
• personal care services (assistance with showering and getting dressed)
• meal preparation
• assistance improving skills (e.g. meal planning, teaching cooking skills, support in responsibility for personal hygiene)
• domestic assistance (e.g. making beds, vacuuming and mopping floors, cleaning the toilet and bathroom, laundry, shopping for groceries)
• transportation and assistance with mobility
• development of social skills and cognitive and emotional support
• community engagement, and
• respite care.
3. It is common for consumers in the home care and disability services sectors to request services of a short duration.
4. Due to the high incidence of short duration client services, it is common for employees to provide a series of short-duration services to different clients throughout a single shift.
5. Employees report a range of adverse consequences with working broken shifts with short engagements and unpaid travel time.
[56] We also noted the observation of the Part-time and Casual Employment Full Bench 21 regarding evidence of short shifts in the disability sector covered by the SCHADS Award which ‘verged on being exploitative’:
‘There was some evidence of short shifts being worked in a manner which verged on being exploitative. For example, in the disability sector, Ms Potoi referred to working 1½ hour shifts in the disability sector as a part-time employee in circumstances where the travel required to perform the shift took the same amount of time again; Mr Quinn worked shifts varying in length from 4 hours to 30 minutes; and Mr Morgan worked whatever shifts were offered in order to preserve his job security.’ 22
[57] Minimum engagement periods protect employees from exploitation by ensuring that they receive a minimum payment for each work attendance.
[58] In the May 2021 Decision, we concluded that equity and fairness required that part-time employees covered by the SCHADS Award have an entitlement to a minimum payment per shift and we decided to vary the SCHADS Award to introduce a 2 hour minimum payment for part-time employees and to increase the existing minimum payment for casual home care employees from 1 hour to 2 hours by inserting a new clause 10.5, as follows: 23
‘10.5 Minimum payments for part-time and casual employees
Part-time and casual employees will be paid for the following minimum number of hours, at the appropriate rate, for each shift or period of work in a broken shift:
(a) social and community services employees (except when undertaking disability services work)—3 hours;
(b) all other employees—2 hours.’
[59] Three issues arise in respect of the proposed minimum payment provision:
• the application of minimum payments to staff meetings and training/professional development
• transitional arrangements, and
• confining the application of the minimum payment term to circumstances where the employee is required to attend a workplace.
3.2.2 Minimum payment for staff meetings and training/professional development
[60] In the May 2021 Decision, we said that we were not persuaded, at that time, to adopt ABI’s proposal for a 1-hour minimum engagement for attendances at work for the purpose of staff meetings and training/professional development. At [376] we said:
‘But that is not the end of the matter; we propose to provide ABI (and any other interested party) an opportunity to present further arguments and evidence in support of the proposed change.’
[61] A number of parties made submission in respect of this issue.
[62] ABI submits that a 1-hour minimum engagement is appropriate where employees are required to attend the workplace for training and staff meetings for the following reasons: 24
1. Employees will obtain the benefit of 2-hour minimum engagements in respect of their usual work engagements (i.e. the overwhelming proportion of their shifts), which is a significant improvement to the current Award.
2. Staff meetings and training will make up an overwhelming minority of the shifts performed by casual and part-time employees, so on an overall basis it cannot be said that a shorter minimum engagement for what would only be a handful of occasions would be approaching anything that could be considered ‘exploitative’.
3. Given the high proportion of part-time employment in the home care and disability services sectors (and the fact that the Award has previously not contained any minimum engagement period for part-time employees), we consider that the introduction of a two hour minimum engagement period will likely have the effect of reducing the level of training provided by employers to employees. [Emphasis added].
[63] In respect of the last proposition ABI also submits that a 2-hour minimum engagement ‘may cause employers to determine that it is not commercially viable to hold regular staff meetings, or to provide regular training and development.’ 25
[64] As to the first point, the argument advanced says nothing about the adoption of a 1-hour minimum engagement in respect of staff meetings and training/professional development. As to the second and third points, no evidence is adduced in support of the assertions made.
[65] Ai Group advances 3 propositions: 26
1. If a casual or part-time employee is required to attend a meeting or training/professional development which is conducted without being required to attend a physical workplace (i.e. where the meetings or training is conducted via an online platform or by telephone), then no minimum payment is required.
2. If a casual or part-time employee is required to attend meetings or training at a physical workplace, then a minimum payment of not more than 1 hour applies.
3. Attendance at meetings or training/professional development which are conducted remotely (without the employee being required to attend a physical workplace) should be exempt from the broken shift provisions in proposed clause 20.10 and 25.6.
[66] It is convenient to deal first with the third proposal; 3 things may be said about the proposal put.
[67] First, the proposal is clearly beyond the scope of the matter which was to be the subject of the further opportunity to present further arguments and evidence.
[68] Second, it is unclear how the proposal is intended to operate; it is not accompanied by a draft determination. At [14] of its submission of 3 August 2021, Ai Group simply submits that ‘Remote Meetings or Training should not attract the application of the broken shift provisions (i.e. proposed clauses 20.10 and 25.6).’ It follows that remote meetings or training would not attract broken shift allowances (specified in proposed clause 20.10) and nor would they attract proposed clause 25.6. Proposed clause 25.6 is set out at [27] above and includes a number of terms which are currently in the Award:
• proposed clause 25.6(e): ‘The span of hours for a broken shift is up to 12 hours. All work performed beyond the span of 12 hours will be paid at double time’ (see current clause 25.6(c)).
• proposed clause 25.6(f): ‘An employee must receive a minimum break of 10 hours between broken shifts rostered on successive days’ (see current clause 25.6(d)).
[69] These provisions currently apply to home care employees and social and community services employees when undertaking disability services work. No justification is provided for reducing the existing entitlements of these employees.
[70] Finally, Ai Group does not refer to any evidence to support the proposition that the proposed variation is necessary to ensure that the SCHADS Award achieves the modern awards objective.
[71] In these circumstances we do not propose to adopt Ai Group’s proposal. As we mention later, Ai Group may pursue this proposal by making an application to vary the SCHADS Award, once we have finalised the draft determination arising from these proceedings.
[72] As to propositions 1 and 2, Ai Group contends 27 ‘the evidence demonstrates’ that:
1. The duration of Remote Meetings and/or Training is ‘commonly considerably less than two hours’ and ‘in some instances it may require as little as 5 minutes’.
2. Employers permit employees to determine when they undertake ‘Remote Training’, that is, employees are at liberty to decide the day and the time at which they undertake ‘Remote Training’.
3. The imposition of a 2 hour minimum payment ‘may deter employers from providing training to their employees’.
[73] We are not persuaded that the evidence supports the breadth of the findings sought.
[74] Ai Group relies on the evidence of 2 of its witnesses – Mr Cabrita and Mr Nillsen – in support of the findings proposed. Mr Cabrita and Mr Nillsen are managers employed by the same employer, Life Without Barriers (LWB). The most that can be said about their evidence is that it concerns the experience of one employer in respect of part of its workforce. In particular, Mr Cabrita’s evidence is in respect of LWB’s aged care workforce which consists of 349 employees (out of LWB’s total workforce of 8,069 employees). 28
Proposed finding 1
[75] Mr Cabrita’s evidence is that LWB employees delivering aged care services are required, from time to time, to attend internal meetings and undertake training. 29
[76] Mr Cabrita’s evidence in respect of internal meetings is at [103]-[107]:
‘Due to the COVID-19 pandemic, currently, attendance at internal meetings typically occurs via an online platform or via telephone. These meetings generally occur with a senior member of staff. In some instances, a group of frontline aged care employees will be in attendance whilst in other instances, the meeting is between one such employee and their supervisor or manager. They are held for a range of purposes including regular meetings to discuss routine operational issues as well as the provision of supervision.
Most internal meetings of this nature are 30 minutes or less in duration. Many are as short as 15 minutes in duration. No internal meeting requiring the attendance of LWB’s aged care workforce is of two hours or more in duration. This is true of meetings currently being conducted via an online platform or telephone, as well as meetings that were conducted face-to-face prior to the pandemic.
Time spent attending a meeting is treated as time worked.
It is not always feasible to schedule such meetings immediately before or after the relevant employee(s) perform other work. This is because the timing of such meeting is contingent, in part, on the availability of other staff. Moreover, LWB endeavours to schedule meetings in a way that does not disrupt the delivery of services to its clients.
At this stage, LWB does not intend to resume regular face-to-face meetings for its aged care workforce for the foreseeable future.’
[77] Mr Cabrita’s evidence in respect of training is at [108]-[109] of his statement:
‘Employees are also required to undertake training. This includes e-learning modules about a range of matters, that are conducted online. The provision of online training is not specific to the COVID-19 pandemic. It was provided prior to the pandemic too. Employees are permitted to undertake this training at a time of their choosing and they are generally not required to attend the workplace to attend this training. They are permitted to complete the training wherever they choose. In some instances, these training modules require as little as 15 minutes to complete. Generally, they do not require more than 30 minutes to complete.
If an employee does not have access to an electronic device through which they can undertake the training, they are able to attend the workplace and use one of LWB’s devices to do so.’
[78] Mr Nillsen’s evidence regarding the duration of training is at [102] of his statement:
‘The My Learning system provides an estimate of the period of time required to undertake each module of training. The estimated time required to undertake some of the modules is as little as five minutes. Typically, each module requires 15 – 20 minutes to complete.’
[79] Contrary to Ai Group’s contention it cannot be said that remote meetings and training are ‘commonly considerably less than two hours.’ Mr Cabrita’s evidence cannot be extrapolated to the SCHADS workforce generally – he is only speaking about the 349 employees in LWB’s aged care workforce.
[80] We would also observe that there is no evidence about the frequency and duration of the training actually delivered, say over a 6 month period.
Proposed finding 2
[81] The second proposed finding is said to be supported by [99] to [101] of Mr Nillsen’s statement. Mr Nillsen’s evidence in respect of employee training is at [99]-[102] of his statement:
‘Various forms of training delivered to LWB’s employees covered by the Award is provided via an online platform called ‘My Learning’. The training delivered through this platform relates to a range of matters including general workplace health and safety matters, workplace health and safety matters associated with the COVID-19 pandemic (e.g. donning and doffing personal protective equipment and infection control measures specific to COVID-19), child safety, the ‘Aged Care Quality Standards’ prescribed by the Commonwealth Government and the delivery of specific types of support to aged persons or people with a disability.
LWB is required, at law, to provide certain types of training to its employees, because it delivers services to vulnerable people (e.g. to maintain its registration or credentials to be able to do so), such as people with a disability, aged persons, children and youth. Some of the training provided to employees is delivered, at least in part, to satisfy those obligations.
Employees can generally undertake this training remotely, without attending the workplace.
The My Learning system provides an estimate of the period of time required to undertake each module of training. The estimated time required to undertake some of the modules is as little as five minutes. Typically, each module requires 15 – 20 minutes to complete.’ [Emphasis added]
[82] The finding proposed by Ai Group is that ‘employers permit employees to determine when they undertake remote training’. The evidence only reflects the practice of one employer and it cannot be extrapolated to SCHADS employers generally.
Proposed finding 3
[83] The third proposed finding is said to be supported by [110] of Mr Cabrita’s statement, at which he states:
‘LWB does not have access to specific funding for the provision of training to its staff or for activities such as staff meetings. If LWB is required to pay employees for at least two hours for each instance in which employees undertake training or attend meetings, it intends to review its current practices in this regard and to:
(a) Consider reducing the amount of training offered to its employees except in instances in which the training is necessary for the delivery of LWB’s aged care services.
(b) Potentially reduce the extent to which it engages with staff through meetings and the provision of supervision.’
[84] The evidence given relates to LWB’s aged care workforce of 349 employees and is highly qualified. We would also observe that there is no evidence regarding the interaction of meetings and training with the current minimum engagement term in the SCHADS Award.
[85] Further to the proposed finding 3, Ai Group asserts that the extent to which the 2 hour minimum payment deters employers from providing training to employees ‘could adversely affect the extent to which employees are afforded an opportunity to develop new skills and refine existing skills’ and ‘may also ultimately affect the quality of the care provided to the employers’ clients’. 30
[86] No evidence is referred to in support of these assertions and they amount to little more than speculation.
[87] AFEI’s primary submission is that ‘attendance at training should be exempt from the minimum engagement provisions’ and employees should simply be paid for the time it takes to complete the training. 31
[88] In the alternative, AFEI submits that ‘more flexibility should be provided to providers and employees’ and proffers the following example: ‘with employee agreement, 3 x 20 minute training modules can be undertaken over a period of time, with all 3 training modules to be subject to the 1 hour minimum engagement.’
[89] AFEI also submits that the impact of 2-hour minimum engagement provision applying to training would be significant: 32
1. The financial impact for employers in circumstances where training only takes 10 minutes to complete online in the employee’s own home but the employer would be required to pay for two hours; or
2. To counter the significant financial impact, employers may be required to ‘bundle’ a series of training together until there is enough training to last two hours in length before requiring the employee to undertake the training (for example, if a training module takes 10 minutes in length, the employee may be required to undertake the training only when all 12 modules have been released). The consequential impact of this option would be on the employees and participants (including but not limited to their health and safety), particularly where the training is urgent in nature which is commonly the case given the nature of this sector.
[90] In support of its primary submission AFEI makes 3 assertions:
1. Time in attendance at training can vary taking as little as 7 minutes to at most, one hour in length.
2. Attendance at training can be completed online and in the employee’s own home or location of their choice and does not always require attendance at a location directed by the employer.
3. To some extent, the training can be undertaken by employees at mutually convenient times to the employer and employee.
[91] AFEI relies on the evidence of one witness – Kylie Lambert – as the basis for the assertions made. Ms Lambert deals with the interaction between the minimum payments term and the provision of training at [31] to [35] of her statement:
‘31. Our care workers undertake training. Training can be completed face-to-face or online. Online training can be completed in the care worker’s own home.
32. The time engaged by care workers attending training is highly variable, particularly where the training is completed online. Taking the COVID-19 pandemic for example, the Government drip-fed training modules to be completed by our care workers. Some modules lasted for as little as 7 minutes whilst other modules lasted one hour. Because the training arose as a result of the pandemic and related to employee and client health and safety, it was important to have our care workers complete the training as soon as practicable, to optimise theirs and the client’s protection.
33. With the Commission’s decision to vary minimum engagement for casual employees in the home care stream to be increased from 1 hour to 2 hours, we would be required to ‘bank up’ two hours’ worth of online training for our care workers. Where the training only takes ten minutes in length and can be done online, it would take a while before the training can be ‘banked up’. Without stating the obvious, this is not an efficient way to train our care workers and could work against protecting the health and safety of our employees and clients.
34. It would also be easier for care workers to find ten minutes, twenty minutes or even one hour in their week (or day) to focus on one training topic than be overwhelmed by lots of topics for two hours. Care workers are working, raising children, caring for their parents and managing their home.
35. If we were to apply the two hour minimum to training that takes less than two hours in length to complete, this would:
a. Increase training costs substantially; and
b. potentially make the training less effective for care workers because:
i. they would be required to undertake the training at times that may not be convenient to them but rather is undertaken at such time when there is sufficient training to last 2 hours in length;
ii. care workers may find it more overwhelming to sit through continuous training lasting 2 hours as opposed to short, sharp topics lasting ten minutes to one hour.’
[92] Four points may be made about Ms Lambert’s evidence.
[93] First, the evidence relates to one employer, Daughterly Care Community Services Ltd (Daughterly Care), which provides aged care support and care to elders. Daughterly Care employs 206 home care workers, mostly on a casual basis.
[94] Second, it is not clear why the change to minimum payment would require Daughterly Care to ‘bank up’ 2 hours’ worth of online training for its care workers; rather than simply scheduling the training at the completion of a care shift.
[95] Third, the evidence at [35](b)(i) and (ii) amounts to little more than speculation and the basis for the asserted opinions is unstated.
[96] Finally, no detail is provided regarding the frequency and duration of the training actually delivered by Daughterly Care. Nor is there any information about how training is currently scheduled; given that most of the home care workers employed by Daughterly Care are employed on a casual basis and are currently subject to a 1-hour minimum engagement.
[97] AFEI’s primary and alternate propositions are beyond the scope of the matter which was to be the subject of the opportunity to present further arguments and evidence. Further, both propositions would involve a reduction in the existing entitlements of casual home care workers.
[98] Further, the evidence advanced in support of AFEI’s propositions is confined to 1 employer who employs 206 home care workers.
[99] Home Care Assistance Australia, Zest Personalised Care and Australian Unity also support a 1-hour minimum engagement for meetings and training/professional development.
[100] We do not propose to make any of the proposed amendments to the draft determination. We are not persuaded that there is a sufficient evidentiary basis to make the findings advanced in support of the various proposals which have been put. A number of those proposals also extend beyond the scope of the matter which was to be the subject of the opportunity to present further arguments and evidence. If any party wishes to pursue a particular proposal it may make an application to vary the SCHADS Award, once we have finalised the determination arising from these proceedings. Given that that determination will come into operation on 1 July 2022 a timely application could be heard and determined before the new minimum payment term comes into operation.
3.2.3 Transitional arrangements
[101] ABI and Ai Group made detailed submissions regarding the transitional arrangements in respect of the proposed minimum payments clause.
[102] The submissions seek to address the circumstance where an existing part-time employment agreement includes shifts of less than 3 hours duration for social and community service employees (except when undertaking disability work) or shifts of less than 2 hours duration for all other employees. Absent an agreement under clause 10.3(e) to vary the agreed pattern of work, an employer may be required to pay a part-time employee for 2 or 3 hours of work (depending on the type of work they are performing) in circumstances where they work for less than 2 or 3 hours. Take for example an existing clause 10.3(c) agreement between the employer and part-time employee which provides that the employee will work a 1-hour shift each Wednesday between 8am and 9am. After the new minimum payment term commences operation, this part-time employee will be entitled to be paid for a minimum of 2 hours, even if they only perform work for 1 hour.
[103] In most cases, we would expect that employers would bundle periods of work so that employees are provided with a minimum period of work of either 2 or 3 hours, as appropriate, or an agreement would be reached between the employer and the part-time employee to vary the agreed pattern of work, under clause 10.3(e), such that periods of work are at least 2 or 3 hours in duration. But in some cases, work will not be able to be ‘bundled’ and the parties may not agree to vary the agreed pattern of work. What is to be done in these circumstances?
[104] The ASU contends, 33 in essence, that these issues would be sorted out at the workplace in a practical way and if the employer wanted to change the working arrangements and a part-time employee was unwilling to accept the proposed change then redundancy was available as an option. The UWU also opposes the ABI and Ai Group proposals and submits that the 2 hour minimum payment should not be undermined.34
[105] Contrary to the Unions’ submissions, we think it is appropriate to make provision for a transitional arrangement to address this issue. Ai Group and ABI proffer different mechanisms to deal with this issue.
[106] Ai Group proposes that the draft determination be amended to include the following provision:
X.X Clause 10.5 does not apply in relation to a part-time employee employed prior to [insert date] unless they have agreed, in accordance with clause 10.3(e) to vary their agreed hours of work such that they agree to work at least 2 or 3 hours (as appliable) [sic] per shift or period of work in a broken shift (as appliable) [sic].
[107] Ai Group also proposes that the following further amendment be made to cl.10.5 to ensure that an employer is able to require both part-time and casual employees to perform an amount of work that corresponds to the relevant minimum payment period:
X.X An employer is not required to provide the payment referred to in clause 10.5 unless the employee undertakes that number of hours of work specified in clause 10.5 during each shift or period of work during a broken shift, if requested by their employer.
[108] Ai Group submits that both proposed variations are necessary to enable an employer to permanently alter their arrangements with employees and implement rostering and staffing changes, and to align them with client and operational needs.
[109] Ai Group’s first proposed variation is a form of ‘red circling’. ‘Red circling’ refers to the practice of preserving the status quo for existing employees and only applying a particular change to employees engaged after a specified date. 35
[110] In the Penalty Rates (Transitional Arrangements) Decision the Full Bench rejected a Union red circling proposal which would have preserved the current Sunday and public holiday penalty rates for all existing employees and applied reduced penalty rates to all new employees. The Full Bench noted that the introduction of such a term would: 36
• create significant potential for disharmony and conflict between employees performing the same work at the same time but receiving different Sunday penalty rates (contrary to s.577(d)); and
• make the transition to ‘fair and relevant’ Sunday penalty rates more complex (adding to the ‘regulatory burden’ on business (s.134(1)(f)) and making the modern award system less simple and easy to understand (s.134(1)(g)).
[111] Similarly, in the present context Ai Group’s proposal creates significant potential for disharmony and conflict as it gives rise to 2 classes of part-time employee, with only one class entitled to a minimum payment term.
[112] Ai Group’s second proposal is curiously drafted. We are uncertain of how it is intended to operate; nor is it apparent why such a term is necessary to ensure that the SCHADS Award achieves the modern awards objective.
[113] During the course of oral argument Ai Group clarified the intent of the proposal:
‘What we were really seeking was that if there was the work, that there be some incentive on the employee to cooperate, given that we might be dealing with a situation where contractually they just don’t have to and under the award there’s no compulsion.’ 37
[114] Ai Group’s second proposed term applies to part-time and casual employees. The working arrangements of a part-time employee are governed by the agreement between the employer and employee entered into pursuant to clause 10.3. It is not at all clear how Ai Group’s proposal interacts with clause 10.3. We note that the transitional provision we propose at [130], allows an employer to unilaterally alter the agreed pattern of work to provide for periods of continuous work of 2 or 3 hours (depending on the type of work being performed), with 28 days’ notice in writing. In our view, this transitional provision deals with the issue raised by Ai Group in a more appropriate and balanced way. As to casual employees, there is no need for a term of the type proposed by Ai Group. An employer is free to offer work to a casual employee of whatever duration it wishes (subject only to the minimum payment requirement); the casual employee is free to accept or reject that offer.
[115] We would also observe that Ai Group’s second proposal extends well beyond ameliorating the impact of the May 2021Decision. It would apply to casual employees who currently have a minimum engagement entitlement under clause 10.4(c) of the SCHADS Award.
[116] For the reasons given we reject Ai Group’s proposed variation.
[117] ABI submits that a natural consequence of the variations to the Award will be that employers will seek to change rosters and patterns of work to ensure, as much as practicable, that employees are being fully utilised for the full 2-hour period whenever they present for work, in order to minimise the circumstances in which they would incur labour costs for unproductive/unchargeable time. We agree with the proposition put.
[118] However, as ABI notes, pursuant to clause 10.3(e) of the SCHADS Award an employer cannot change a part-time employee’s agreed pattern of work without the individual employee’s agreement. ABI submits this means that:
‘Employers may be exposed to situations where a part time employee does not agree to vary their existing agreed pattern of work to permit the employer to obtain the maximum productive benefit of the time for which they must pay the employee on any shift.’ 38
[119] ABI submit that ‘the sensible way to rectify this unintended implementation issue’ 39 would be to introduce a transitional arrangement, for a defined period of time, in which the requirements of clause 10.3(e) would not apply in situations where employers vary a part-time employee’s regular pattern of work to increase any shift or portion of work that is less than the applicable minimum payment period.
[120] ABI proposes that an additional clause be inserted into clause 10.3 of the SCHADS Award, as follows:
‘(h) Between the period 1 July 2022 to 30 June 2023, the requirements of clause 10.3(e) do not apply in situations where an employer varies a part-time employee’s regular pattern of work to increase any shift or portion of work that is less than the applicable minimum engagement / minimum payment period. Seven days’ notice must be given to the employee of the change in their agreed regular pattern of work, and the new pattern of work will become the employee’s agreed regular pattern of work within the meaning of clause 10.3(c).’
[121] In response to ABI’s proposed variation, Ai Group argues that the proposal it has advanced should be adopted and submits:
‘It is very common for employers and part-time employees to agree on their hours of work, for the purposes of clause 10.3(c), in the context of a contract of employment. The provision proposed by ABI would not address the difficulties that flow from this. Employers would remain bound by their contractual obligations and the suggested clause would not give an employer a right to vary a part-time employee’s hours notwithstanding their contractual obligations.
It is also somewhat unclear whether the ‘new pattern of work’ contemplated by the clause would ‘become the employee’s agreed regular pattern of work within the meaning of clause 10.3(c)’ during the period of 1 July 2022 – 30 June 2023; or whether it would continue as the employee’s agreed pattern of work beyond that timeframe.
Unless it is the latter, rather than address the key issue identified by Ai Group and ABI in their respective submissions, the proposed clause would simply delay the point in time at which an employer would be faced with the implications of the minimum payment obligations applying to existing part-time employees.’ 40
[122] For the reasons given we have rejected Ai Group’s proposed variation. No evidence was put in support of the assertion that it is ‘very common for employers and part time employees to agree on their hours of work in the context of a contract of employment’. Proposed clause 10.5A makes clear that an employer may vary an employee’s shifts, or periods of work in broken shifts, in the circumstances set out in clause 10.5A(c).
[123] During the course of oral argument, ABI conceded that there ‘may be a couple of issues that need further consideration’ but that the intention of the provision was clear:
‘which is that an employer should effectively be able to increase the duration of certain shifts that are below the foreshadowed minimums … as at the commencement of the new changes.’ 41
[124] ABI acknowledged that an unintended consequence of its drafting was that it allowed an employer to increase a shift beyond the minimum engagement required by the proposed award variation and submits:
‘That’s not the intention. The intention is merely just to bridge the gap between … the absence of minimums and the new minimum.’ 42
[125] ABI also accepted that if the operative date of the proposed variations was deferred to 1 July 2022 then it ‘may be appropriate for an employer to give an employee more notice’.
[126] Further, ABI’s proposal does not contemplate a consultation process, an omission which ABI acknowledged was a ‘fair criticism’ of its proposal. 43
[127] Finally, as to whether the proposal should be time limited, ABI acknowledged that it was capable of being a transitional provision.
[128] As mentioned earlier, the essence of the issue raised by the employers is that the ‘agreed regular pattern of work’ for current part-time employees (under cl 10.3(c)) may include periods of work which are less than the new 2 or 3 hour minimum payment and that if there is no variation agreed then an employer may end up paying an employee for 2 (or 3) hours work in circumstances where the employee undertakes, for example, 30 minutes of work.
[129] We have decided that the determination arising from our decision will include a transitional arrangement applying to minimum payments for part-time employees and it is our provisional view that such an arrangement should have the following characteristics:
1. Limited scope:
(a) it only applies to part-time employment arrangements which:
(i) were entered into before 1 March 2022; and
(ii) provide for a period of continuous work of less than 3 hours for social and community services employees (except when undertaking disability services work) and 2 hours for all other employees( hours (and therefore are affected by the variation).
2. It imposes an obligation to consult and negotiate in good faith regarding changes to the agreed pattern of work.
3. If no agreement is reached, then the employer can unilaterally alter the agreed pattern of work to provide for periods of continuous work of 2 or 3 hours (depending on the type of work being performed), with 28 days’ notice in writing.
4. Any unilateral alteration to the agreed pattern of work cannot come into operation before 1 July 2022 (the implementation date of the minimum payment term).
5. The transitional arrangements will come into operation on 1 March 2022 and cease operation (and be removed from the Award) on 1 October 2022. The commencement date of 1 March 2022 will provide employers and employees with an appropriate period of notice of the new minimum payment provisions.
[130] A draft term which gives effect to our provisional view is set out below:
10.5A Transitional arrangements applying to minimum payments for part-time employees
Clause 10.5A operates from 1 March 2022 until 1 October 2022.
NOTE: From 1 July 2022, this award will include a requirement for part-time employees to be paid for the following minimum number of hours, at the appropriate rate, for each shift or period of work in a broken shift: social and community services employees (except when undertaking disability services work)—3 hours; all other employees—2 hours (the minimum payment requirements). This clause provides transitional arrangements for the minimum payment requirements.
(a) Clause 10.5A applies in relation to agreements made under clause 10.3(c) before 1 March 2022, where the employee’s agreed regular pattern of work includes shifts or periods of work in broken shifts of less than:
(i) 3 hours for social and community services employees (except when undertaking disability services work);
(ii) 2 hours for all other employees.
(b) The employer must discuss the relevant minimum payment requirements with the employee and genuinely try to reach agreement on a variation to the agreement made under clause 10.3(c) that will make each of the employee’s shifts or periods of work in broken shifts consistent with the hours specified in clause 10.5A(a)(i) or (ii) and will reasonably accommodate the employee’s circumstances.
(c) Notwithstanding any prior agreement between the employer and the employee and despite clause 10.3(e), if the employer has genuinely tried to reach an agreement with the employee under clause 10.5A(b) but an agreement is not reached (including because the employee refuses to confer), the employer may vary the agreement made under clause 10.3(c) to provide for shifts or periods of work in broken shifts that are consistent with the hours specified in clause 10.5A(a)(i) or (ii), by providing 28 days’ notice to the employee in writing.
(d) A variation by the employer under clause 10.5A(c) varies the agreement between the employer and employee made under clause 10.3(c).
(e) A variation made under clause 10.5A(c) must not come into operation before 1 July 2022.
(f) Clause 10.5A(c) is intended to operate in conjunction with clause 10.3(e) and does not prevent an employee and employer from agreeing to vary the agreement made under clause 10.3(c) in other circumstances.
3.2.4 Request to attend a workplace
[131] Ai Group submits that there is a need to amend the proposed draft determination to ensure it ‘does not operate unfairly, from an employer’s perspective, in circumstances where the employees are undertaking shorter periods of work, but are not required to actually attend a workplace.’ 44
[132] Ai Group submits that ‘any notion that the adverse impact of the new minimum payment provisions may… be mitigated by an employer’s ability to ‘build’ a shift of such duration will often not be applicable to work undertaken remotely.’ 45 No evidence is referred to in support of this assertion.
[133] Ai Group proposes that the issues it raises in its submissions would be addressed by amending the draft determination to include a clause to the following effect:
‘The requirement to provide a minimum payment in accordance with this clause only applies in circumstances where an employee is required by their employer to attend a particular workplace.’
[134] Ai Group submits they are conscious that the above proposal would limit the application of the proposed minimum payment provisions in the context of both part-time and casual employment, but contends that the proposed amendment to the draft determination would be necessary in the sense contemplated by s.138 of the Act.
[135] We would also observe that Ai Group’s proposal extends beyond ameliorating the impact of our decision. It would apply to casual employees who currently have a minimum engagement entitlement under clause 10.4(c) of the SCHADS Award and would therefore reduce their existing entitlements.
[136] We are not persuaded that there is a sufficient evidentiary foundation to support the proposal advanced by Ai Group.
[137] For the reasons given we reject Ai Group’s proposed variation. If Ai Group wishes to pursue this matter it can do so by making an application to vary the SCHADS Award, once we have finalised the variation determination arising from these proceedings.
3.3 Roster changes
[138] In the May 2021 Decision, we expressed the view that there is merit in varying clause 25.5(d) to permit the variation of a roster by mutual agreement in circumstances where the variation is proposed by an employee to accommodate an agreed shift swap with another employee. 46 We expressed the provisional view that clause 25.5(d)(ii) be varied, as follows:
‘(ii) However, a roster may be changed at any time:
(A) if the change is proposed by an employee to accommodate an agreed shift swap with another employee; or
(B) to enable the service of the organisation to be carried on where another employee is absent from duty on account of illness, or in an emergency.’
[139] The underlined words constitute the variation; clause 25.5(d)(ii)(B) reflects the wording of the current clause 25.5(d)(ii).
[140] NDS supports the proposed variation to allow employees to swap shifts by agreement but proposes an amendment to clarify that an agreed shift swap between employees also requires the agreement of the employer. 47 It is proposed that the provisional clause 25.5(d)(ii)(A) at [1271] of the Decision be amended to read:
‘if the change is proposed by an employee to accommodate an agreed shift swap with another employee, subject to the agreement of the employer …’.
[141] In support of the proposed change, NDS submits:
‘In some circumstances, an employer may have reasonable grounds to not agree to a proposed shift swap. In a disability service this might relate to considerations such as matching employees with the appropriate skills and attributes to the needs of a client, or fatigue management where a shift swap might result in excessive hours being worked by an employee in a short period of time.’ 48
[142] The proposed change has merit; it is not opposed by any other party; and it is consistent with our provisional view that the Award be varied to permit (as opposed to require) roster changes in such circumstances. We will adopt the change proposed by NDS.
3.4 Client cancellation
3.4.1 Background
[143] Clause 25.5(f) of the SCHADS Award deals with client cancellation, as follows:
‘(f) Client cancellation
(i) Where a client cancels or changes the rostered home care service, an employee will be provided with notice of a change in roster by 5.00 pm the day prior and in such circumstances no payment will be made to the employee. If a full-time or part-time employee does not receive such notice, the employee will be entitled to receive payment for their minimum specified hours on that day.
(ii) The employer may direct the employee to make-up time equivalent to the cancelled time, in that or the subsequent fortnightly period. This time may be made up working with other clients or in other areas of the employer’s business providing the employee has the skill and competence to perform the work.’
[144] In short, employers may direct employees to make-up time equivalent to the cancelled time in that fortnight or during the subsequent fortnight.
[145] Clause 25.5(f) operates as follows:
• the clause applies only to ‘home care services’, an undefined term
• where a client cancels or changes a rostered home care service the employer is required to provide an employee with notice of a change to their roster by 5pm the day before the scheduled service:
• if the employer notified the relevant employee before 5pm on the day prior that they are no longer required to work the employee is not entitled to any payment
• where notice is not provided by 5pm the day prior, the employee is entitled to payment for their ‘minimum specified hours on that day’
• an employer may direct the employee to perform ‘make-up time equivalent to the cancelled time’, provided:
• make-up time is worked in the same or the following fortnightly period, and
• the time may be made up working with other clients or in other areas of the employer’s business, if the employee has the skills and competence to perform the work
[146] In the May 2021 Decision, we made the following findings in respect of client cancellations 49:
1. Client cancellation events occur in both the home care and disability support sectors.
2. Clients cancel scheduled services for a range of reasons including: ill health or injury, an unscheduled medical appointment, hospitalisation, transfer into permanent residential care, death, family visits, complex behavioural issues, social appointments, refusing to have the replacement worker if their usual worker is absent that day, absence from home at the time of the scheduled service, holidays, poor weather and festival celebrations.
3. Most client cancellations occur in the 24 hours prior to the commencement of the scheduled service.
4. Client cancellation events are not uncommon.
5. The frequency of cancellation events causes significant rostering challenges for businesses. While employers endeavour to redeploy employees to other productive work where cancellation events occur, it is not always possible to do so for a range of reasons.
6. Employers encounter difficulties in finding alternative work for employees at the time of their rostered shift when a scheduled client service is cancelled by the client.
7. There is some evidence that employers cancel rostered shifts of part-time employees (without payment) under the provisions of the current clause 25.5(f).
8. Where an employee has a rostered shift cancelled without payment by their employer, the employee will lose out on expected income unless provided with a make-up shift.
9. Funding schemes have different terms in respect of cancellations and in some cases, employers are prohibited from charging cancellation fees.
10. The updated cancellation rules in the NDIS Price Guide 2019-20 improved the position of employers when it comes to clients cancelling scheduled services under the NDIS.
[324] Consistent with the view expressed by Ai Group, we intend to move quickly to determine the final form of the variations to be made to the SCHADS Award. We discuss this issue further in section 8, Next Steps, of this decision.
8. Next Steps
[325] There are only 2 matters arising from the decision about which we wish to provide an opportunity for comment:
1. The provisional view regarding the particular characteristics of the transitional arrangements that will apply to minimum payments for part-time employees (see [129] and [130] above).
2. Any technical amendments to the revised draft determination set out at Attachment 1 to this decision.
[326] The second matter is not an opportunity to seek to reagitate a matter which has been determined. Rather, it is an opportunity to draw our attention to any drafting issues that do not reflect the terms of our decision or which give rise to unintended consequences.
[327] A number of the proposals advanced by the principal parties during this stage of the proceedings amounted to little more than an attempt to reagitate an issue which we had already determined. Similarly, Australian Unity, Zest Personalised Care and Home Care Assistance oppose the 2 hour minimum engagement term for part-time employees and restricting broken shifts to ‘2 breaks’; and ACIA submits that the 2 hour minimum engagement term ‘be reconsidered’. We decided these issues in the May 2021 Decision, and we do not propose to revisit those decisions.
[328] As we noted in the 9 August 2021 Statement, we are conscious of the need to provide certainty in respect of award variations arising from these proceedings and to do so as quickly as possible. That process will be impeded if parties persist in seeking to reagitate concluded issues.
[329] The final phase in these proceedings requires that any submissions in respect of the remaining matters (set out at [3] and [11] above) are to be filed by no later than 4PM (AEST) on Wednesday, 25 August 2021. Any submissions and evidence in reply are to be filed by no later than 4PM (AEST) on Monday, 30 August 2021.
[330] Parties may make submissions about the 2 matters arising from this decision (see [325] above) when they file their reply submissions on Monday 30 August 2021. These matters may also be addressed in oral argument at the hearing on 1 September 2021.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR733158>
ATTACHMENT 1
MA000100 PRXXXXX X
FAIR WORK COMMISSION
DRAFT DETERMINATION
Fair Work Act 2009
s.156—4 yearly review of modern awards
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective
4 yearly review of modern awards – Social, Community, Home Care and Disability Services Industry Award 2010
(AM2018/26 and AM2020/100)
SOCIAL, COMMUNITY, HOME CARE AND DISABILITY SERVICES INDUSTRY AWARD 2010
[MA000100]
Social, community, home care and disability services | |
JUSTICE ROSS, PRESIDENT | MELBOURNE, XX MONTH 2021 |
Four yearly review of modern awards – Award stage – Group 4A awards – substantive issues – Social, Community, Home Care and Disability Services Industry Award 2010.
A. Further to the decisions issued by the Full Bench of the Fair Work Commission on 4 May 2021 ([2021] FWCFB 2383) and XX MONTH 2021 ([2021] FWCFB XXXX), the above award is varied as follows:
1. By deleting clause 10.3 and inserting the following:
10.3 Part-time employment
(a) A part-time employee is one who is engaged to work less than 38 hours per week or an average of less than 38 hours per week and who has reasonably predictable hours of work.
(b) The terms of this award will apply to part-time employees on a pro-rata basis on the basis that the ordinary weekly hours of work for full-time employees are 38.
(c) Before commencing employment, the employer and employee will agree in writing on:
(i) a regular pattern of work including the number of ordinary hours to be worked each week (the guaranteed hours), and
(ii) the days of the week the employee will work and the starting and finishing times each day.
(d) The agreed regular pattern of work does not necessarily have to provide for the same guaranteed hours each week.
(e) The agreement made pursuant to clause 10.3(c) may subsequently be varied by agreement between the employer and employee in writing. Any such agreement may be ongoing or for a specified period of time.
(f) Nothing in clause 10.3(e) requires an employee to agree to any change in their guaranteed hours.
(g) Review of guaranteed hours
(i) Where a part-time employee has regularly worked more than their guaranteed hours for at least 12 months, the employee may request in writing that the employer vary the agreement made under clause 10.3(c), or as subsequently varied under clause 10.3(e), to increase their guaranteed hours.
(ii) The employer must respond in writing to the employee’s request within 21 days.
(iii) The employer may refuse the request only on reasonable business grounds.
(iv) Before refusing a request made under clause 10.3(g)(i), the employer must discuss the request with the employee and genuinely try to reach agreement on an increase to the employee’s guaranteed hours that will give the employee more predictable hours of work and reasonably accommodate the employee’s circumstances.
(v) If the employer and employee agree to vary the agreement made under clause 10.3(c), the employer’s written response must record the agreed variation.
(vi) If the employer and employee do not reach agreement, the employer’s written response must set out the grounds on which the employer has refused the employee’s request.
(vii) Clause 10.3(g) is intended to operate in conjunction with clause 10.3(e) and does not prevent an employee and employer from agreeing to vary the agreement made under clause 10.3(c) in other circumstances.
(viii) An employee cannot make a request for a review of their guaranteed hours when:
(A) The employee has refused a previous offer to increase their guaranteed hours in the last 6 months; or
(B) The employer refused a request from the employee to increase their guaranteed hours based on reasonable business grounds in the last 6 months.
2. By deleting clause 10.4(c).
3. By renumbering clause 10.5 as 10.6.
4. By inserting a new clause 10.5 as follows:
10.5 Minimum payments for part-time and casual employees
Part-time and casual employees will be paid for the following minimum number of hours, at the appropriate rate, for each shift or period of work in a broken shift:
(a) social and community services employees (except when undertaking disability services work)—3 hours;
(b) all other employees—2 hours.
5. By inserting a new clause 10.5A as follows:
10.5A Transitional arrangements applying to minimum payments for part-time employees
Clause 10.5A operates from 1 March 2022 until 1 October 2022.
NOTE: From 1 July 2022, this award will include a requirement for part-time employees to be paid for the following minimum number of hours, at the appropriate rate, for each shift or period of work in a broken shift: social and community services employees (except when undertaking disability services work)—3 hours; all other employees—2 hours (the minimum payment requirements). This clause provides transitional arrangements for the minimum payment requirements.
(a) Clause 10.5A applies in relation to agreements made under clause 10.3(c) before 1 March 2022, where the employee’s agreed regular pattern of work includes shifts or periods of work in broken shifts of less than:
(i) 3 hours for social and community services employees (except when undertaking disability services work);
(ii) 2 hours for all other employees.
(b) The employer must discuss the relevant minimum payment requirements with the employee and genuinely try to reach agreement on a variation to the agreement made under clause 10.3(c) that will make each of the employee’s shifts or periods of work in broken shifts consistent with the hours specified in clause 10.5A(a)(i) or (ii) and will reasonably accommodate the employee’s circumstances.
(c) Notwithstanding any prior agreement between the employer and the employee and despite clause 10.3(e), if the employer has genuinely tried to reach an agreement with the employee under clause 10.5A(b) but an agreement is not reached (including because the employee refuses to confer), the employer may vary the agreement made under clause 10.3(c) to provide for shifts or periods of work in broken shifts that are consistent with the hours specified in clause 10.5A(a)(i) or (ii), by providing 28 days’ notice to the employee in writing.
(d) A variation by the employer under clause 10.5A(c) varies the agreement between the employer and employee made under clause 10.3(c).
(e) A variation made under clause 10.5A(c) must not come into operation before 1 July 2022.
(f) Clause 10.5A(c) is intended to operate in conjunction with clause 10.3(e) and does not prevent an employee and employer from agreeing to vary the agreement made under clause 10.3(c) in other circumstances.
6. By deleting Note 1 and Note 2 appearing at the beginning of clause 15.
7. By inserting the following note as a new paragraph after the end of clause 15:
NOTE 1: A transitional pay equity order taken to have been made pursuant to item 30A of Schedule 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) has effect in accordance with that item. Transitional pay equity orders operate in Queensland as provided for in items 30A (6) and (7).
8. By inserting the following note as a new paragraph after the end of clause 15:
NOTE 2: An equal remuneration order [PR525485] also applies to employees in the classifications in Schedule B—Classification Definitions—Social and Community Services Employees and Schedule C—Classification Definitions—Crisis Accommodation Employees of this award. The final rates of pay resulting from the equal remuneration order are set out below. The ‘current hourly wage’ and ‘current weekly wage’ in the tables below form employees’ ordinary rates of pay for all purposes:
Equal remuneration rates for applicable Social and Community Services employees—from 1 December 2020
Clause | Minimum weekly wage | Final Rate ERO Percentage | Current weekly wage | Current hourly wage |
Classification | $ | % | $ | $ |
Social and community services employee level 2 | 15.2 | |||
Pay point 1 | 877.60 | 123 | 1079.45 | 28.41 |
Pay point 2 | 905.10 | 123 | 1113.27 | 29.30 |
Pay point 3 | 932.60 | 123 | 1147.10 | 30.19 |
Pay point 4 | 957.60 | 123 | 1177.85 | 31.00 |
Social and community services employee level 3 | 15.3 | |||
Pay point 1 (associate diploma/advanced certificate) | 957.60 | 126 | 1206.58 | 31.75 |
Pay point 2 | 985.10 | 126 | 1241.23 | 32.66 |
Pay point 3 (3 year degree) | 1006.10 | 126 | 1267.69 | 33.36 |
Pay point 4 (4 year degree) | 1026.70 | 126 | 1293.64 | 34.04 |
Social and community services employee level 4 | 15.4 | |||
Pay point 1 | 1054.20 | 132 | 1391.54 | 36.62 |
Pay point 2 | 1081.80 | 132 | 1427.98 | 37.58 |
Pay point 3 | 1109.60 | 132 | 1464.67 | 38.54 |
Pay point 4 | 1134.30 | 132 | 1497.28 | 39.40 |
Social and community services employee level 5 | 15.5 | |||
Pay point 1 | 1162.00 | 137 | 1591.94 | 41.89 |
Pay point 2 | 1186.90 | 137 | 1626.05 | 42.79 |
Pay point 3 | 1214.60 | 137 | 1664.00 | 43.79 |
Social and community services employee level 6 | 15.6 | |||
Pay point 1 | 1242.30 | 140 | 1739.22 | 45.77 |
Pay point 2 | 1269.70 | 140 | 1777.58 | 46.78 |
Pay point 3 | 1297.20 | 140 | 1816.08 | 47.79 |
Social and community services employee level 7 | 15.7 | |||
Pay point 1 | 1324.70 | 142 | 1881.07 | 49.50 |
Pay point 2 | 1352.50 | 142 | 1920.55 | 50.54 |
Pay point 3 | 1380.00 | 142 | 1959.60 | 51.57 |
Social and community services employee level 8 | 15.8 | |||
Pay point 1 | 1407.50 | 145 | 2040.88 | 53.71 |
Pay point 2 | 1435.10 | 145 | 2080.90 | 54.76 |
Pay point 3 | 1462.90 | 145 | 2121.21 | 55.82 |
Equal remuneration rates for Crisis Accommodation employees—from 1 December 2020
Clause | Minimum weekly wage | Final Rate ERO Percentage | Current weekly wage | Current hourly wage |
Classification | $ | % | $ | $ |
Crisis accommodation employee Level 1 | 15.3 | |||
Pay point 1 (associate diploma/advanced certificate) | 957.60 | 126 | 1206.58 | 31.75 |
Pay point 2 | 985.10 | 126 | 1241.23 | 32.66 |
Pay point 3 (3 year degree) | 1006.10 | 126 | 1267.69 | 33.36 |
Pay point 4 (4 year degree) | 1026.70 | 126 | 1293.64 | 34.04 |
Crisis accommodation employee level 2 | 15.4 | |||
Pay point 1 | 1054.20 | 132 | 1391.54 | 36.62 |
Pay point 2 | 1081.80 | 132 | 1427.98 | 37.58 |
Pay point 3 | 1109.60 | 132 | 1464.67 | 38.54 |
Pay point 4 | 1134.30 | 132 | 1497.28 | 39.40 |
Crisis accommodation employee level 3 | 15.5 | |||
Pay point 1 | 1162.00 | 137 | 1591.94 | 41.89 |
Pay point 2 | 1186.90 | 137 | 1626.05 | 42.79 |
Pay point 3 | 1214.60 | 137 | 1664.00 | 43.79 |
Crisis accommodation employee level 4 | 15.6 | |||
Pay point 1 | 1242.30 | 140 | 1739.22 | 45.77 |
Pay point 2 | 1269.70 | 140 | 1777.58 | 46.78 |
Pay point 3 | 1297.20 | 140 | 1816.08 | 47.79 |
9. By inserting clause 20.10 as follows:
20.10 Broken shift allowance
(a) An employee required to work a broken shift with 1 unpaid break in accordance with clause 25.6(a) will be paid an allowance of 1.7% of the standard rate, per broken shift.
(b) An employee who agrees to work a broken shift with 2 unpaid breaks in accordance with clause 25.6(b) will be paid an allowance of 2.5% of the standard rate, per broken shift.
10. By deleting clause 25.5(d)(ii) and inserting the following:
(ii) However, a roster may be changed at any time:
(A) if the change is proposed by an employee to accommodate an agreed shift swap with another employee, subject to the agreement of the employer; or
(B) to enable the service of the organisation to be carried on where another employee is absent from duty on account of illness, or in an emergency.
11. By deleting clause 25.5(f) and inserting the following:
(f) Client cancellation
(i) Clause 25.5(f) applies where a client cancels or changes a scheduled home care or disability service, within 7 days of the scheduled service, which a full-time or part-time employee was rostered to provide. For the purposes of clause 25.5(f), a client cancellation includes where a client reschedules a scheduled home care or disability service.
(ii) Where a service is cancelled by a client under clause 25.5(f)(i), the employer may either:
(A) direct the employee to perform other work during those hours in which they were rostered; or
(B) cancel the rostered shift or the affected part of the shift.
(iii) Where clause 25.5(f)(ii)(A) applies, the employee will be paid the amount payable had the employee performed the cancelled service or the amount payable in respect of the work actually performed, whichever is the greater.
(iv) Where clause 25.5(f)(ii)(B) applies, the employer must either:
(A) pay the employee the amount they would have received had the shift or part of the shift not been cancelled; or
(B) subject to clauses 25.5(f)(v), provide the employee with make-up time in accordance with clause 25.5(f)(vi).
(v) The make-up time arrangement can only be used where the employee was notified of the cancelled shift (or part thereof) at least 12 hours prior to the scheduled commencement of the cancelled service. In these cases, clause 25.5(f)(iv)(A) applies.
(vi) Where the employer elects to provide make-up time:
(A) despite clause 25.5(a), the employer must provide the employee with 7 days’ notice of the makeup-time (or a lesser period by agreement with the employee);
(B) the make-up time must worked within 6 weeks of the date of the cancelled service;
(C) the employer must consult with the employee in accordance with clause 8A regarding when the make-up time is to be worked;
(D) the make-up time can include work with other clients or in other areas of the employer’s business provided the employee has the skill and competence to perform the work; and
(E) an employee who works make-up time will be paid the amount payable had the employee performed the cancelled service or the amount payable in respect of the work actually performed, whichever is the greater.
(vii) Clause 25.5(f) is intended to operate in conjunction with clause 25.5(d) and does not prevent an employer from changing a roster under clause 25.5(d)(i) or (ii).
12. By deleting clause 25.6 and inserting the following:
25.6 Broken shifts
This clause only applies to social and community services employees when undertaking disability services work and home care employees.
(a) Broken shift with 1 unpaid break
(i) An employer may only roster an employee to work a broken shift of 2 periods of work with 1 unpaid break (other than a meal break).
(ii) An employee rostered to work a broken shift with 1 unpaid break must be paid the allowance in clause 20.10(a).
(b) Agreement to work a broken shift with 2 unpaid breaks
(i) Despite clause 25.6(a), an employer and an employee may agree that the employee will work a broken shift of 3 periods of work with 2 unpaid breaks (other than meal breaks).
(ii) An agreement under clause 25.6(b)(i) must be made before each occasion that the employee is to work a broken shift with 2 unpaid breaks unless the working of the 2 break broken shift is part of the agreed regular pattern of work in an agreement made under clause 10.3 or subsequently varied.
(iii) An employee who works a broken shift with 2 unpaid breaks must be paid the allowance in clause 20.10(b).
(c) Where a break in work falls within a minimum payment period in accordance with clause 10.5 then it is to be counted as time worked and does not constitute a break in a shift for the purposes of clause 25.6(a)(i) or clause 25.6(b)(i).
(d) Payment for a broken shift will be at ordinary pay with weekend and overtime penalty rates to be paid in accordance with clauses 26 and 28.
(e) The span of hours for a broken shift is up to 12 hours. All work performed beyond a span of 12 hours will be paid at double time.
(f) An employee must receive a minimum break of 10 hours between broken shifts rostered on successive days.
13. By deleting clause 25.7(c) and inserting the following:
(c) The span for a sleepover will be a continuous period of 8 hours. Employees will be provided with a separate room with a bed and clean linen, the use of appropriate facilities (including access to food preparation facilities and staff facilities where these exist) and free board and lodging for each night when the employee sleeps over.
14. By deleting clause 25.8 and inserting the following:
25.8 24-hour care
This clause only applies to home care employees.
(a) A 24-hour care shift requires an employee to be available for duty in a client’s home for a 24-hour period. During this period, the employee is required to provide the client with the services specified in the care plan. The employee is required to provide a total of no more than 8 hours of care during this period.
(b) An employer may only require an employee to work a 24-hour care shift by agreement.
(c) The employee will be afforded the opportunity to sleep for a continuous period of 8 hours during a 24-hour care shift and employees will be provided with a separate room with a bed and clean linen, the use of appropriate facilities (including access to food preparation facilities and staff facilities where these exist) and free board and lodging for each night when the employee sleeps over.
(d) The employee will be paid 8 hours’ work at 155% of their appropriate rate for each 24-hour period.
(e) If the employee is required to perform more than 8 hours’ work during a 24-hour care shift, that work shall be treated as overtime and paid at the rate of time and a half for the first 2 hours and double time thereafter, except on Sundays when overtime will be paid for at the rate of double time, and on public holidays at the rate of double time and a half. An employer and employee may utilise the TOIL arrangement in accordance with clause 28.2.
(f) An employee may refuse to work more than 8 hours’ work during a 24-hour care shift in circumstances where the requirement to work those additional hours is unreasonable.
15. By deleting clause 28.1 and inserting the following:
28.1 Overtime rates
(a) Full-time employees
A full-time employee will be paid the following payments for all work done in addition to their rostered ordinary hours on any day and, in the case of day workers, for work done outside the span of hours under clause 25.2(a):
(i) disability services, home care and day care employees—for all authorised overtime on Monday to Saturday, payment will be made at the rate of time and a half for the first 2 hours and double time thereafter;
(ii) social and community services and crisis accommodation employees—for all authorised overtime on Monday to Saturday, payment will be made at the rate of time and a half for the first 3 hours and double time thereafter;
(iii) for all authorised overtime on a Sunday, payment will be made at the rate of double time;
(iv) for all authorised overtime on a public holiday, payment will be made at the rate of double time and a half; and
(v) overtime rates under this clause will be in substitution for, and not cumulative upon, the shift premiums prescribed in clause 29—Shiftwork and Saturday and Sunday work premiums prescribed in clause 26—Saturday and Sunday work.
(b) Part-time employees and casual employees
(i) All time worked by part-time or casual employees in excess of 38 hours per week or 76 hours per fortnight will be paid for at the rate of time and a half for the first 2 hours and double time thereafter, except that on Sundays such overtime will be paid for at the rate of double time and on public holidays at the rate of double time and a half.
(ii) All time worked by part-time or casual employees which exceeds 10 hours per day, will be paid at the rate of time and a half for the first 2 hours and double time thereafter, except on Sundays when overtime will be paid for at the rate of double time, and on public holidays at the rate of double time and a half.
(iii) Time worked up to the hours prescribed in clause 28.1(b)(ii) will, subject to clause 28.1(b)(i), not be regarded as overtime and will be paid for at the ordinary rate of pay (including the casual loading in the case of casual employees).
(iv) All time worked outside the span of hours by part-time and casual day workers will be paid for at the rate of time and a half for the first two hours and double time thereafter, except that on Sundays such overtime will be paid for at the rate of double time and on public holidays at the rate of double time and a half.
(v) Overtime rates payable under clause 28.1(b) will be in substitution for and not cumulative upon the shift premiums prescribed in clause 29—Shiftwork and are not applicable to ordinary hours worked on a Saturday or Sunday.
16. By deleting clause 31.2 and inserting the following:
31.2 Quantum of leave
For the purpose of the NES, a shiftworker is:
(a) an employee who works for more than 4 ordinary hours on 10 or more weekends during the yearly period in respect of which their annual leave accrues; or
(b) an employee who works at least eight 24-hour care shifts in accordance with clause 25.8 during the yearly period in respect of which their annual leave accrues;
and is entitled to an additional week’s annual leave on the same terms and conditions.
17. By updating cross-references accordingly.
B. Item 5 of this determination comes into operation on 1 March 2022. In accordance with s.165(3) of the Fair Work Act 2009 this item does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after 1 March 2022.
C. Items 1 to 4 and 6 to 17 of this determination come into operation on 1 July 2022. In accordance with s.165(3) of the Fair Work Act 2009 these items do not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after 1 July 2022.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
1 [2021] FWCFB 2383 (‘May 2021 Decision’).
2 Ibid at [1262].
3 [2021] FWCFB 4716.
4 AFEI corrected a typographical error at [253] of the summary document, ‘no later than’ should be replaced by ‘no earlier than’. See Transcript, 6 August 2021 at PN847-849.
5 [2021] FWCFB 4863.
6 ASU submission, 3 August 2021 at [41].
7 May 2021 Decision at [232].
8 May 2021 Decision at [452].
9 May 2021 Decision at [488].
10 Ibid at [1266].
11 Ai Group submission, 3 August 2021 at [261].
12 Ai Group submission, 3 August 2021 at [256].
13 Ai Group submission, 3 August 2021 at [256].
14 May 2021 Decision at [410].
15 May 2021 Decision at [487].
16 Transcript, 6 August 2021 at PN717.
17 Ai Group submission, 3 August 2021 at [256].
18 May 2021 Decision at [246].
19 May 2021 Decision at [243].
20 May 2021 Decision at [322].
21 [2017] FWCFB 3541 (‘Part-time and Casual Employment Case’).
22 Part-time and Casual Employment Caseat [406].
23 May 2021 Decision at [377].
24 ABI submission, 3 August 2021 at [38].
25 ABI submission, 3 August 2021 at [39].
26 Ai Group submission, 3 August 2021 at [13]-[14].
27 Ai Group submission, 3 August 2021 at [19]-[22].
28 Exhibit AIG5, Witness Statement of Richard Cabrita at [8] and [19].
29 Exhibit AIG5, Witness Statement of Richard Cabrita at [102].
30 Ai Group submission, 3 August 2021 at [22].
31 AFEI submission, 3 August 2021 at [41].
32 AFEI submission, 3 August 2021 at [39].
33 See Transcript, 6 August 2021 at PN455-475.
34 Transcript, 6 August 2021 at PN386.
35 [2017] FWCFB 3001 at [110].
36 [2017] FWCFB 3001 at [119].
37 Transcript, 6 August 2021 at PN380.
38 ABI submission, 3 August 2021 at [109].
39 Ibid at [110].
40 Ai Group supplementary submission, 5 August 2021 at [46]-[48].
41 Transcript, 3 August 2021 at PN720.
42 Transcript, 3 August 2021 at PN772.
43 Ibid at [723].
44 Ai Group submission, 3 August 2021 at [205].
45 Ai Group submission, 3 August 2021 at [216].
46 May 2021 Decision at [643].
47 Ai Group also proposed such an amendment. Zest Personalised Care and Includa also made similar points in their submissions.
48 NDS submission, 3 August 2021 at [25].
49 May 2021 Decision at [784].
50 May 2021 Decision at [803].
51 May 2021 Decision at [818].
52 May 2021 Decision at [818].
53 May 2021 Decision at [819].
54 Ai Group submission, 3 August 2021 at [239].
55 ASU submission, 9 August 2021 at page 1.
56 AFEI submission, 3 August 2021 at [57].
57 ABI submission, 12 October 2019 at [2.22]
58 ASU submission, 3 August 2021 at [47].
59 Transcript, 6 August 2021 at PN791.
60 AFEI submission, 3 August 2021 at [58].
61 ABI submission, 3 August 2021 at [50].
62 ABI submission, 3 August 2021 at [59].
63 ABI submission, 3 August 2021 at [61].
64 Ai Group submission, 3 August 2021 at [242].
65 May 2021 Decision at [535], [550].
66 Transcript, 6 August 2021 at PN764.
67 Transcript, 6 August 2021 at PN630.
68 UWU Submission, 1 April 2019; ASU submission, 2 July 2019.
69 May 2021 Decision at [584].
70 May 2021 Decision at [588].
71 Transcript, 27 May 2021 at PN130.
72 May 2021 Decision at [987].
73 HSU Submission, 18 November 2019 at [107]-[113].
74 Transcript, 6 August 2021 at PN426-428.
75 Transcript, 6 August 2021 at PN551.
76 HSU submission, 3 August 2021 at [49].
77 Ai Group submission, 3 August 2021 at [168]-[169].
78 UWU submission, at [57].
79 ASU Submission, 3 August 2021 at [63].
80 ASU Submission, 3 August2021 at [65].
81 ASU submission, 3 August 2021 at [69].
82 Ai Group supplementary submission, 5 August 2021 at [41]-[43].
83 May 2021 Decision at [973].
84 May 2021 Decision at [972].
85 UWU submission, 3 August 2021 at [56].
86 May 2021 Decision at [1013].
87 We note that Includa sought to extend the operation of the 24-hour care clause, to include shifts on a supported holiday and that the excursions clause be reconsidered to ensure consistency. If they wish to pursue their claim, they should make an application to vary the Award.
88 ABI submission, 26 February 2021 at [113].
89 May 2021 Decision at [1256].
90 Transcript, 6 August 2021 at PN556 and PN589.
91 Transcript, 6 August 2021 at PN556.
92 ABI submission, 3 August 2021 at [21].
93 ABI submission, 3 August 2021 at [122].
94 ABI submission, 3 August 2021 at [182].
95 NDS submission, 3 August 2021 at [43].
96 NDS submission, 3 August 2021 at [44].
97 NDS submission, 3 August 2021 at [55].
98 NDS submission, 3 August 2021 at [49]-[51].
99 Ai Group submission, 3 August 2021 at [87].
100 Ai Group submission, 3 August 2021 at [93].
101 [2019] FWCFB 7096.
102 May 2021 Decision at [970].
103 4 yearly review of modern awards – Penalty Rates [2017] FWCFB 1001 at [771].
104 Ai Group supplementary submission, 5 August 2021 at [50]-[54].
105 AFEI submission, 3 August 2021 at [31].
106 AFEI submission, 3 August 2021 at [14].
107 See Exhibit AFEI1, Witness Statement of Kylie Lambert at [14], [30]-[51] and [56].
108 Exhibit AFEI1, Witness Statement of Kylie Lambert at [60].
109 Exhibit AFEI1, Witness Statement of Kylie Lambert at [61].
110 APNS submission, 3 August 2021, p 3.
111 ACIA submission, p 5.
112 Australian Unity submission, 3 August 2021 at p 11.
113 Ai Group submission, 3 August 2021 at [90]–[163].
114 Transcript, 6 August 2021 at PN 883 to 884.
115 [2017] FWCFB 3001.
116 [2017] FWCFB 3001 at [143].
117 [2017] FWCFB 3001 at [143].
118 [2017] FWCFB 3001 at [144] and [148].
119 [2019] FWCFB 6067 at [48]-[75].
120 May 2021 Decision at [211].
121 May 2021 Decision at [218].
122 FWC – Survey Analysis of the Social, Community, Home Care and Disability Services Industry Award 2010 (June 2019).
123 National Disability and Insurance Scheme Act 2013 (Cth). Also see ABI submission, 5 April 2019 at paras 3.15 – 3.18; Ai Group Submission, 8 April 2019 at paras 83 – 87.
124 ABI submission, 5 April 2019 at paras 3.7 – 3.14; See also the Aged Care Legislation Amendment (Increasing Consumer Choice) Act 2016 (Cth).
125 Exhibit ASU4 – Stanford Report, September 2019 at para 24; Exhibit UV7 – Witness Statement of Melissa Coad, 16 September 2019 at para 14.
126 See National Disability and Insurance Scheme Act 2013 (Cth), s.3(1)(e); Exhibit ABI2 – Witness Statement of Darren Mathewson, 12 July 2019 at para 48; Exhibit UV7 – Witness Statement of Melissa Coad, 16 September 2019 at para 16.
127 Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at paras 22, 24; Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 at para 37; Exhibit ASU4 – Stanford Report, September 2019 at para 8.
128 Exhibit ASU4 – Stanford Report, September 2019 at para 8: ‘Demand for specific services fluctuates constantly due to changes in the number of clients, their approved budgets, their specific choices of services, and other factors’.
129 Exhibit ABI7 – Witness Statement of Scott Harvey, 2 July 2019, Attachment A: ConnectAbility’s Service Agreement allows participants to cancel with four weeks’ notice.
130 NDS, ‘State of the Disability Sector Report 2018’, p 20, CB3385.
131 NDS, ‘Australian Disability Workforce Report’, February 2018, p 14, CB3329; Exhibit HSU25 – Witness Statement of Fiona Macdonald, 15 February 2019, Attachment FM-2, p 85.
132 Exhibit ASU4 – Stanford Report, September 2019 at para 8: ‘The individualised, market-based system which the NDIS uses to deliver services to participating clients is creating a profound fragmentation and instability in the nature of delivered services’.
133 Exhibit ABI7 – Witness Statement of Scott Harvey, 2 July 2019 at para 28.
134 Exhibit ABI6 – Witness Statement of Deb Ryan, 12 July 2019 at para 41.
135 Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 at para 34.
136 Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 at para 42; Exhibit UV7 – Witness Statement of Melissa Coad, 16 September 2019 at para 26.
137 Exhibit ASU4 – Stanford Report, September 2019 at para 8; Exhibit HSU25 – Witness Statement of Fiona Macdonald, 15 February 2019, Attachment FM-2, p 85; Natasha Cortis, ‘Working under the NDIS: Insights from a survey of employees in disability services’ (June 2017), section 1, CB3137; NDS Submission, 16 July 2019 at para 8.
138 Exhibit NDS1 – Witness Statement of David Moody, 12 July 2019 at paras 11 – 12.
139 NDIS Price Guide 2019-20, 1 October 2019, CB4321.
140 Exhibit ABI12 – NDIA Support Catalogue, 1 October 2019.
141 Media Release, ‘NDIS price increases for a sustainable and vibrant disability services market’, Minister for Families and Social Services and Assistant Minister for Social Services, Housing and Disability Services, 30 March 2019, CB2858.
142 Ibid, CB2859.
143 Ibid, CB2859.
144 NDIA, ‘National Disability Insurance Scheme: Efficient Cost Model for Disability Support Workers’, June 2019, CB494.
145 Ibid, CB493.
146 Ibid, CB494.
147 Ibid, CB494.
148 Ibid, CB496.
149 Ibid, CB494.
150 NDIA, ‘National Disability Insurance Scheme: Efficient Cost Model for Disability Support Workers’, June 2019, CB497; Transcript, 15 October 2019 at PN894-PN900.
151 NDIA, ‘National Disability Insurance Scheme: Efficient Cost Model for Disability Support Workers’, June 2019, CB498.
152 Natasha Cortis, ‘Working under the NDIS: Insights from a survey of employees in disability services’ (June 2017), CB3156-3157.
153 NDIA, ‘National Disability Insurance Scheme: Efficient Cost Model for Disability Support Workers’, June 2019, CB494.
154 Part-time and Casual Employment Caseat [630].
155 Exhibit ASU4 – Stanford Report, September 2019 at para 24.
156 Exhibit ASU4 – Stanford Report, September 2019 at para 24, 51, 53.
157 Productivity Commission Study Paper ‘National Disability Insurance Scheme (NDIS) Costs’, CB3759.
158 Exhibit ABI2 – Witness Statement of Darren Mathewson, 12 July 2019 at para 39.
159 Aged & Community Services Australia, ‘Seventh report on the Funding and Financing of the Aged Care Sector – summation and commentary’, July 2019, CB457.
160 Ai Group Submission, 3 August 2021 at [160].
161 September 2019 Decision at [137]-[139].
162 September 2019 Decision at [200].
163 September 2019 Decision at [199].
164 4 yearly review of modern awards—Group 4—Social, Community, Home Care and Disability Services Industry Award 2010—Substantive claims [2019] FWCFB 7096.
165 September 2019 Decision at [35].
166 Ai Group submission, 3 August 2021 at [164].
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