[2022] FWCFB 200 FAIR WORK COMMISSION
DECISION
Fair Work Act 200
s.158—Application to vary or revoke a modern award
Aged Care Award 2010
(AM2020/99 and AM2021/63)
Nurses Award 2020
(AM2021/63)
Social, Community, Home Care and Disability Services Industry Award 2010
(AM2021/65)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT ASBURY
DEPUTY PRESIDENT O’NEILLMELBOURNE, 4 NOVEMBER 2022
Applications to vary modern awards – work value – Aged Care Award 2010 – Nurses Award 2020 – Social, Community, Home Care and Disability Services Industry Award 2010 – Decision.
INDEX
Chapter
Paragraph 1. Introduction [1] 2. The Decision: An Overview [27] 3. Legislative Framework [66] 3.1 Overview [66] 3.2 Subsections 157(2)(a) and (2A) [75] 3.2.1 The Pharmacy Decision [80] 3.2.2 The Teachers Decision [101] 3.2.3 ‘Reconciling’ the Pharmacy and Teachers Decisions [111] 3.3 Consideration [125] 3.3.1 Section 157(2)(b) [129] 3.3.2 Section 157(2)(a) [134] (i) A fixed datum point [170] (ii) Relativities [176] (iii) Pharmacy Decision: Proposition 6 [193] 3.3.3 Particular issues in contention [225] (i) The ‘social utility’ of the work [225] (ii) Dangerous work [231] (iii) Attraction and retention [255] 3.4 Modern Awards Objective [270] 3.5 Minimum Wages Objective [289] 3.6 Summary [293] 4. Summary of Submissions [294] (i) Tandara Lodge Community Care submission dated 27
August 2021[307] (ii) Uniting NSW.ACT submission dated 4 March 2022 [311] (iii) UnitingCare Australia submission dated 4 March 2022 [317] (iv) IRT Group submission dated 4 March 2022 [320] (v) BaptistCare NSW & ACT submission dated 4 March 2022 [325] (vi) Evergreen Life Care submission dated 7 March 2022 [331] (vii) MercyCare submission dated 7 march 2022 [335] (viii) Victorian Government [338] (ix) Queensland Government [343] 5. The Evidence [358] 5.1 Overview [358] 5.2 Expert Evidence [370] 5.2.1 Professor Charlesworth [370] 5.2.2 Professor Kurrle [377] 5.2.3 Professor Eagar [384] 5.2.4 Professor Meagher [390] 5.2.5 Associate Professor Smith and Dr Lyons [396] 5.2.6 Associate Professor Junor [409] 5.3 Joint Employers’ objections to the expert evidence [416] 5.4 Lay Witness Evidence [431] 6. The Aged Care Sector [438] 6.1 Overview [438] 6.2 Data Sources [441] 6.3 The Aged Care Workforce [446] 6.3.1 Changes in occupational composition [460] 6.3.2 Estimates of workers covered by modern awards [469] 6.3.3 ‘Low paid’ aged care workers [473] 6.4 Regulation of the Aged Care Sector [479] 6.4.1 The Aged Care Quality Standards (the Standards) [480] 6.4.2 Requirements relating to the use of physical or
chemical restraints[491] 6.4.3 The National Aged Care Mandatory Quality
Indicator Program (QI Program)[502] 6.4.4 The Serious Incident Response Scheme [512] 6.5 Commonwealth Funding in the Aged Care Sector [527] 6.5.1 The Aged Care Funding Instrument (ACFI) [527] 6.5.2 New funding model – Australian National Aged
Care Classification (AN-ACC) Model[529] 7. Our Findings [534] 7.1 The Aged Care Sector Stakeholder Consensus Statement [535] 7.2 The Uncontentious Propositions [551] 7.2.1 Overview [551] 7.2.2 Evidentiary basis for the agreed propositions [557] 7.3 The Contentious Issues [740] 7.3.1 Gender Undervaluation [740] 7.3.2 Invisible Skills – The Junor Report [759] 7.3.3 Gender pay gap [859] 8. Consideration [867] 8.1 The Context [867] 8.1.1 The parties’ position [867] 8.1.2 The evidentiary findings [890] 8.1.3 Complexity and unresolved issues [902] 8.2 The Way Forward – An Interim Decision [918] 8.3 The Interim Decision [929] (i) Coverage and quantum [929] (ii) Timing and implementation [974] (iii) Other matters [991] 8.4 The Modern Awards Objective [1001] 8.5 The Minimum Wages Objective [1073] 9. Next Steps [1084] Attachments Page Attachment A – Procedural History, Applications & Submissions 301 Attachment B – Witnesses 320 Attachment C – The Consensus Statement 332 ABBREVIATIONS
2019 Aged Care Decision 4 yearly review of modern awards – Aged Care Award 2010 [2019] FWCFB 5078 2020 Workforce Report 2020 Aged Care Workforce Census 4 Yearly Review 4 yearly review of modern awards 4 Yearly Review Amending Act Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth) ABS Australian Bureau of Statistics ABI Australian Business Industrial ACFI Aged Care Funding Instrument ACSA Aged & Community Services Australia ACQS Commission Aged Care Quality and Safety Commission ACQS Commission Act Aged Care Quality and Safety Commission Act 2018 (Cth) ACT Child Care Decision Australian Liquor, Hospitality and Miscellaneous Workers Union re Child Care Industry (Australian Capital Territory) Award 1998 and Children’s Services (Victoria) Award 1998 – re Wages rates PR954938 [2005] AIRC 28 Aged Care Act Aged Care Act 1997 (Cth) Aged Care Award Aged Care Award 2010 AIN Assistant in Nursing AIRC Australian Industrial Relations Commission ANMF Australian Nursing and Midwifery Federation APESMA The Association of Professional Engineers, Scientists and Managers, Australia AQF Australian Qualifications Framework Awards The Aged Care Award 2010, Nurses Award 2020 and Social, Community, Home Care and Disability Services Award 2010 Background Document 1 Background Document 1 – The Applications dated 9 June 2022 Background Document 2 Background Document 2 – Award Histories dated 9 June 2022 Background Document 3 Background Document 3 – Witness Overview dated 20 June 2022 Background Document 4 Background Document 4 – Royal Commission into Aged Care Quality and Safety dated 20 June 2022 Background Document 5 Background Document 5 dated 5 August 2022 Background Document 6 Background Document 6 – The Commonwealth dated 22 August 2022 Background Document 7 Background Document 7 – Modern Awards Objective dated 22 August 2022 Background Document 8 Background Document 8 – Summary of Submissions dated 22 August 2022 Background Document 9 Background Document 9 – Procedural History dated 30 August 2022 BaptistCare BaptistCare NSW & ACT Buckland Buckland Aged Care Services CCIWA Chamber of Commerce and Industry of Western Australia Charlesworth Report Prof Sara Charlesworth, Report of Sara Charlesworth: Health Services Union of NSW – Regarding work value for aged care members dated 31 March 2021 Charlesworth Supplementary Report Prof Sara Charlesworth, Supplementary Report of Sara Charlesworth dated 22 October 2021 CHSP Commonwealth Home Support Programme CoE Survey ABS, Characteristics of Employment, Australia, August 2017, Catalogue No. 6333.0 Commission Fair Work Commission Consensus Statement Aged Care Sector Stakeholder Consensus Statement dated 17 December 2021 Direct aged care workers Employees in the aged care sector covered by the Awards in caring roles, including nurse practitioners, RNs, ENs, AINs, PCWs and HCWs. DoHAC Commonwealth Department of Health and Aged Care Eagar Report Professor Kathleen Eagar, Report of Dr Kathleen Eagar dated 29 March 2021 Eagar Supplementary Report Professor Kathleen Eagar, Supplementary Report of Dr Kathleen Eagar dated 20 April 2022 ECA Extended Care Assistant EEH ABS, Employer Earnings and Hours, Australia, May 2016, Catalogue No. 6306.0 EN Enrolled Nurse Equal Remuneration Decision 2015 Application by United Voice & Australian Education Union [2015] FWCFB 8200 EST Award Educational Services (Teachers) Award 2020 Evergreen Evergreen Life Care FW Act Fair Work Act 2009 (Cth) HCP Home Care Package HCPP Home Care Package Program HCW Home care worker or Home care employee HSU Health Services Union IEU Independent Education Union of Australia Joint Employers Aged & Community Services Australia, Leading Age Services Australia, Australian Business Industrial Junor Report Honorary Assoc Prof Anne Junor, Fair Work Commission matter AM2021/63, Amendments to the Aged Care Award 2010 and the Nurses Award 2010 dated 28 October 2021, as amended 5 May 2022. Kurrle Report Prof Susan Kurrle, Report of Dr Susan Kurrle regarding work value for aged care members dated 25 April 2021 LASA Leading Age Services Australia Lay Witness Evidence Report Report to the Full Bench—Lay Witness Evidence Report published by Commissioner O’Neill on 20 June 2022. Manufacturing Award Manufacturing and Associated Industries and Occupations Award 2020 Meagher Report Prof Gabrielle Meagher, Changing aged care, changing aged care work: workforce and work value issues in Australian residential aged care dated 31 March 2021 Meagher Supplementary Report Prof Gabrielle Meagher, Supplementary report on workforce and work value issues in Australian home care for older people dated 27 October 2021, as amended 26 May 2022. NACWCS National Aged Care Workforce Census and Survey NES National Employment Standards Nurses Award Nurses Award 2020 PCW Personal Care Worker PCA Personal Care Assistant or Personal Care Attendant Penalty Rates Decision 4 Yearly Review of Modern Awards – Penalty Rates [2017] FWCFB 1001 Penalty Rates Review Shop, Distributive and Allied Employees Association v The Australian Industry Group (2017) 253 FCR 368 Pharmacy Award Pharmacy Industry Award 2010 Pharmacy Decision Four Yearly Review of Modern Awards – Pharmacy Industry Award 2010 [2018] FWCFB 7621 Principal Parties HSU, ANMF, UWU and the Joint Employers PSRACS Public sector residential aged care services QI Program National Aged Care Mandatory Quality Indicator program RAC Residential aged care RAO Recreational Activities Officer/Lifestyle Officer RN Registered Nurse Royal Commission Royal Commission into Aged Care Quality and Safety Royal Commission Final Report Royal Commission into Aged Care Quality and Safety, Final Report: Care, Dignity and Respect (Final Report 1 March 2021) SCHADS 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 SCHADS Award Social, Community, Home Care and Disability Services Award 2010 SCHADS Award COVID-19 Care Allowance case Application to vary the Social, Community, Home Care and Disability Services Industry Award 2010 [2020] FWCFB 4961 SIRS Serious Incident Response Scheme STRC Short-term restorative care Smith/Lyons Report Assoc Prof Meg Smith and Dr Michael Lyons, Report by Associate Professor Meg Smith and Dr Michael Lyons dated October 2021, as amended 2 May 2022 the Standards Aged Care Quality Standards Tandara Lodge Tandara Lodge Community Care Teachers Decision Independent Education Union of Australia [2021] FWCFB 2051 Unions The Australian Nursing and Midwifery Federation, Health Services Union and the United Workers’ Union UWU United Workers’ Union WR Act Workplace Relations Act 1996 (Cth) INDEX OF TABLES
Table Number Description of table Paragraph 1 Measures of pay differentials between females and males from ABS Average Weekly Earnings and Employee Earnings and Hours surveys [399] 2 Differing measures of the gender pay gap (GPG) [399] 3 Size of residential aged care and in-home care workforce, direct care [447] 4 Full-time equivalent direct care employees in residential aged care, per cent [462] 5 Estimated number of workers on each classification within the Aged Care Award, Nurses Award and SCHADS Award, 2022-23 [469] 6 Rockwood Clinical Frailty Scale profile [573] 7 New entrants, system growth and turnover in the HCP program, 2018-2021 [614] 8 Full-time equivalent direct care employees in the residential aged care workforce, by occupation: 2003, 2007, 2012 and 2016 [619] 9 Full-time equivalent direct care employees in the home care and support workforce, by occupation: 2007, 2012, 2016 and 2020 [620] 10 Percentage of staff time by professional designation in the RUCS study [624] 11 Proportion of personal care workers in RAC and in-home care workforce with Certificate III or IV [686] 12 Gender Segregation: Adapted from Burchell et al., 2014 [750] 13 Average incidence of use of Spotlight skills reported per person [765] 14 Selected activities illustrating use of Spotlight skills — Registered Nurses [770] 15 Selected activities illustrating use of Spotlight skills – Enrolled Nurses [770] 16 Selected activities illustrating use of Spotlight skills – AINs/PCWs [770] 17 Spotlight skills assumed but not identified in the Award classification role/skill descriptions [777] 18 Alignment of existing Nurses Award classification structure with the Metals Framework rate C1(a) [944] INDEX OF CHARTS
Chart Number Description of chart Paragraph 1 Care need ratings of people in permanent residential care for complex health care, 30 June 2009-2019 [381] 2 Age of residential aged care workforce, direct care [449] 3 Comparison of minimum full-time weekly wages in the Aged Care Award 2010 and two-thirds of median full-time earnings [475] 4 Comparison of minimum full-time weekly wages in the Nurses Award 2020 and two-thirds of median full-time earnings, Enrolled nurses [476] 5 Comparison of minimum full-time weekly wages in the Nurses Award 2020 and two-thirds of median full-time earnings, Registered nurses [477] 6 Comparison of minimum full-time weekly wages in the SCHADS Award 2010 and two-thirds of median full-time earnings, home care employees [479] 7 Prevalence of the studied quality indicators standardised by state and benchmarking group during February 2016 to January 2017 and July 2020 to June 2021 [596] 8 Number of home care packages at 30 June 2016-2020, and at 31 March 2021 (left axis), and share of level 3 and 4 packages 2016-2020 (right axis) [615] 9 Occupational structure of the direct care workforce in residential care, 2003, 2007, 2012, 2016, per cent of total full-time equivalent workforce [619] 1. Introduction
[1] The Final Report of the Royal Commission into Aged Care Quality and Safety (the Royal Commission) was tabled on 1 March 2021. The Royal Commission received 10,574 public submissions and heard evidence from more than 600 witnesses across 99 days of hearing.[1] Over 1,000 aged care providers were surveyed[2] and some 12 community forums and 13 expert roundtable discussions were conducted.
[2] Modelling prepared for the Royal Commission estimated that the number of direct care workers needed to maintain current staffing levels would be approximately 316,500 full-time equivalent workers by 2050, an increase of 70 per cent.[3]
[3] The Royal Commission concluded that the aged care workforce faces ‘systemic’ problems:
‘In a large number of residential aged care facilities there are not enough workers to provide high quality, person-centred care. In many cases the mix of staff who provide aged care is not appropriately matched to the care needs of older people. The staff in aged care are poorly paid for their difficult and important work.’[4]
[4] The Royal Commission found that aged care workers should have a ‘clear vision for career progression’ and recommended that ‘existing job classifications should be reviewed and new career pathways mapped to facilitate opportunities for nurses, personal care workers and other workers to advance in the aged care sector.’[5]
[5] The Royal Commission also found that a ‘wages gap’ exists between aged care workers and workers performing equivalent functions in the acute health sector and concluded that the ‘bulk of the aged care workforce does not receive wages and enjoy terms and conditions of employment that adequately reflect the important caring role they play.’[6] To address the inadequacies in pay for aged care workers, the Royal Commission made the following recommendation:
Recommendation 84: Increases in award wages
Employee organisations entitled to represent the industrial interests of aged care employees covered by the Aged Care Award 2010, the Social, Community, Home Care and Disability Services Industry Award 2010 and the Nurses Award 2010 should collaborate with the Australian Government and employers and apply to vary wage rates in those awards to:
a. reflect the work value of aged care employees in accordance with section 158 of the Fair Work Act 2009 (Cth), and/or
b. seek to ensure equal remuneration for men and women workers for work of equal or comparable value in accordance with section 302 of the Fair Work Act 2009 (Cth).
[6] These proceedings arise out of Recommendation 84.
[7] This case deals with 3 applications to vary modern awards to increase the minimum wages of aged care sector workers:
1.AM2020/99 – an application by the Health Services Union (HSU) and a number of individuals to vary the minimum wages and classifications in the Aged Care Award 2010 (Aged Care Award)
2.AM2021/63 – an application by the Australian Nursing and Midwifery Federation (ANMF) to vary the Aged Care Award and the Nurses Award 2010, now the Nurses Award 2020 (Nurses Award), [7] and
3.AM2021/65 – an application by the HSU to vary the Social, Community, Home Care and Disability Services Award 2010 (SCHADS Award) (the Applications).
[8] In essence, the Applications in combination seek a 25 per cent rise to the minimum wage rates for all aged care employees covered by the Aged Care Award, Nurses Award and SCHADS Award (the Awards) and associated changes to the classification structures in the Awards.
[9] The ANMF supports the wage increases sought in the HSU applications for Personal Care Workers (PCWs), consistent with its own application.[8] While the ANMF application does not seek a wage increase for employees other than nurses and PCWs, it supports the wage increases sought by the HSU for other employees affected by those applications.[9] The UWU supports the HSU’s application in respect of the SCHADS Award and submits that the SCHADS Award should be varied in the terms set out in the HSU’s application (AM2021/65).[10]
[10] The employer interests in these proceedings are being represented by Aged & Community Services Australia (ACSA), Leading Age Services Australia (LASA) and Australian Business Industrial (ABI) (collectively, the Joint Employers).
[11] The following overview of the relevant coverage of the Awards may assist in reading this decision.
[12] The Aged Care Award is an industry award that covers employers and their employees in the ‘aged care industry’. The aged care industry is defined as:
‘aged care industry means the provision of accommodation and care services for aged persons in a hostel, nursing home, aged care independent living units, aged care serviced apartments, garden settlement, retirement village or any other residential accommodation facility’.
[13] It follows that Aged Care Award employees work in residential aged care facilities. Employees covered by the Aged Care Award are classified in 3 separate streams:
· Personal care, which deals with Personal Care Workers (PCWs)
· Food services, which includes cooks and chefs, and
· General and administrative services, which includes cleaners, gardeners, clerks, drivers and maintenance employees.
[14] The SCHADS Award is also an industry award. It is divided into separate streams but relevantly for the Applications, it covers employers and their employees working in the ‘home care sector’. The home care sector is defined as:
‘home care sector means the provision of personal care, domestic assistance or home maintenance to an aged person or a person with a disability in a private residence.’
[15] Employees working in the aged care sector under the SCHADS Award are classified as ‘Home care employees’. Home care employees are also commonly referred to as Home care workers or HCWs.
[16] Generally, nurses are not covered by the Aged Care Award or the SCHADS Award, even if they work in residential aged care or the home care sector. The Nurses Award is an occupational award that covers employers and their employees who are classified as:
· Nursing assistants
· Enrolled nurses (including student enrolled nurses)
· Registered nurses
· Occupational health nurses, and
· Nurse practitioners.
[17] We note at the outset that because the Applications cover 3 different awards, there is a degree of complexity and potential overlap in the language used to describe employees working in the aged care sector.
[18] In this decision, we commonly use the award terms to refer to particular types of employees (for example, using Personal Care Worker or PCW in relation to employees working in residential aged care facilities covered by the Aged Care Award). However, we observe that a range of other terms are used by the parties and their witnesses (and therefore are reflected in this decision) in referring to different aged care sector roles — for example, some parties use the term Personal Care Assistant/Attendant or PCA to refer to PCWs covered by the Aged Care Award. Prof Charlesworth also notes that the term ‘Personal Care Assistant’ as used in the Australian Bureau of Statistics (ABS) ANZSCO 423313 classification ‘appears to blur the line’ between those providing personal care in residential facilities and those providing care in the home.[11] The Royal Commission Final Report also employs different terminology, including referring to employees working in the aged care sector in caring roles as ‘direct care workers’, which appears to encompass employees in caring roles covered by all 3 Awards that are the subject of the Applications. In addition, we note that some terms are used more generally as convenient descriptions or shorthand for the nature of the aged care work, such as parties using the term ‘PCW’ to refer to both Personal Care Workers under the Aged Care Award and Home care employees (HCWs) under the SCHADS Award.
[19] Evidentiary hearings were held from 26 April to 2 June 2022 and inspections were conducted by members of the Full Bench on 27 and 28 April at a range of residential aged care facilities in Sydney and Melbourne, agreed by the parties. Closing oral argument took place on 24 to 25 August and 1 September 2022. Transcripts of those hearings have been published on the Commission’s website, available here.
[20] The Commission has published the following Background Documents:
· Background Document 1 – The Applications setting out, amongst other things, a summary of the Applications, the procedural history, the legislative framework relevant to the Applications and the main contentions of the principal parties.
· Background Document 2 – Award Histories setting out the history of wages and classifications in the Aged Care Award, the Nurses Award and the SCHADS Award.
· Background Document 3 – Witness Overview which contains a brief overview of each of the witness statements (including employers, union official and expert witnesses); the relevant page number of each witness statement in version 2 of the Digital Hearing Book, links to the final witness statements and transcript references; and specific paragraphs of the witnesses’ statements that they were taken to in cross-examination as well as links to any other documents referenced in the course of giving oral evidence.
· Background Document 4 – The Royal Commission into Aged Care Quality and Safety sets out links and extracts from the submissions, witness evidence and the Research Reference List (RRL) in these proceedings that are relevant to the findings and recommendations of the Royal Commission.
· Background Document 5 summarises the parties’ closing written submissions and the answers to the questions posed in Background Documents 1 and 2.
· Background Document 6 – The Commonwealth summarises the Commonwealth’s submissions and the parties’ submissions in reply to the Commonwealth.
· Background Document 7 – Modern Awards Objective sets out the parties’ submissions in relation to the modern awards objective.
· Background Document 8 – Summary of Submissions summarises the closing submissions in reply and the answers to the questions posed in Background Document 5.
· Background Document 9 – Procedural History sets out the updated procedural history in these proceedings.
[21] The Commission has also published a Digital Hearing Book[12] and Research Reference List.
[22] Version 3 of the Digital Hearing Book was published on 24 August 2022 and indexes all material filed and published up to and including 22 August 2022. It contains approximately 480 documents, including:
· Decisions and Statements
· Notices of Listing and Directions
· Correspondence
· Submissions
· Transcripts
· Witness Statements
· Documents raised in cross-examination, and
· Tender bundles
[23] Any references to the Digital Hearing Book throughout this decision are to Version 3.
[24] The Research Reference List (RRL) contains 665 documents consisting of: 202 published research articles and books; 68 Australian working papers and reports; 9 international working papers and reports; 114 Australian government reports; 2 international government reports; 22 data sources; 189 cases referred to in submissions and witness evidence; and 59 awards, variations and determinations referred to in submissions and witness evidence.
[25] The Research Reference List has been updated throughout these proceedings and was most recently published on 9 June 2022.[13] In a Statement published on 9 June 2022, the President noted that the Research Reference List (RRL):
‘[sets] out all of the research materials and data sources referred to in the parties’ submissions. The RRL also includes a list of cases referred to by the parties in their submissions. We propose to have regard to the materials set out in the RRL in our consideration of the applications.’[14]
[26] The full procedural history, a summary of the Applications and an overview of the submissions received is set out at Attachment A.
2. The Decision: An Overview
[27] The Applications seek a 25 per cent increase in minimum wage rates for all aged care employees covered by the Aged Care, Nurses and SCHADS awards.
[28] It is common ground between the parties that in order to exercise the power in s.157(2) to vary modern award minimum wages we must be satisfied that the variation is ‘justified by work value reasons’; ‘necessary to achieve the modern awards objective’, and ‘necessary to achieve the minimum wages objective’. Further, we must take into account the rate of the national minimum wage as currently set in a national minimum wage order.
[29] At the heart of these proceedings is the Applicants’ contention that the variations they seek to modern award minimum wages are ‘justified by work value reasons’ as required by s.157(2).
[30] We deal with the relevant legislative provisions in Chapter 3, including the meaning of the expression ‘work value reasons’ in s.157(2A), noting that it is not helpful or appropriate to delineate the metes and bounds of that expression divorced from a particular context and that the meaning of the expression should focus on the text of s.157(2A). The propositions distilled from the discussion in Chapter 3 are summarised at the end of that chapter.
[31] The parties’ submissions are summarised in Chapter 4. While there is a significant amount of agreement between the parties, the Joint Employers and the Unions disagree on the extent of changes to work in the aged care sector, in particular the classes of workers affected by those changes.
[32] The parties also agreed with a range of provisional views we expressed during the course of the proceedings; which are set out at the end of Chapter 4.
[33] We deal with the evidence in Chapter 5.
[34] The Unions relied on the evidence of some 89 lay witnesses (72 employee lay witnesses and 17 union officials) and 6 expert witnesses. The Joint Employers relied on the evidence of 9 lay witnesses.
[35] The Commission also published a Research Reference List of 665 documents consisting of: 202 published research articles and books; 68 Australian working papers and reports; 9 international working papers and reports; 114 Australian Government reports; 2 international government reports; 22 data sources; 189 cases referred to in submissions and witness evidence; and 59 awards, variations and determinations referred to in submissions and witness evidence.
[36] The expert evidence is summarised at Chapter 5.2 and at Chapter 5.3 we set out the Joint Employer objections to the expert evidence and we consider, and reject, those objections.
[37] The lay witness evidence is discussed in Chapter 5.4. We accept that the lay witness evidence is necessarily limited to the personal experience of the particular witness and cannot be extrapolated to encompass the conditions, skills and experience of all persons who work in the aged care sector. We also accept that aspects of the lay witness evidence are hearsay or opinion and as a result subject to the appropriate limitations.
[38] The lay witness evidence presents an impression of the nature of the work, the conditions under which it is performed, and the skills utilised by direct care workers in both residential and home-based aged care and has been used to illustrate issues referred to in other evidence.
[39] Chapter 6 provides an overview of the employees, regulatory framework and funding arrangements in the aged care sector.
[40] The Aged Care Sector Stakeholder Consensus Statement (the Consensus Statement) is discussed in Chapter 7.1. The Unions, ACSA and LASA are signatories to the Consensus Statement. The content of the Consensus Statement may be viewed as broadly supportive of the Applications. We conclude that the Consensus Statement is relevant to our determination of the Applications and take it into account. The Consensus Statement represents the views of a number of stakeholders in the aged care sector and was developed in contemplation of these proceedings. The Consensus Statement is set out at Attachment C.
[41] There is considerable common ground between the parties in respect of the relevant factual matrix. Some 16 broad factual contentions are agreed between the parties. Chapter 7.2.2 then considers whether there is an evidentiary basis to support the main areas of agreement. We consider these contentions to be general in their character and that they would not necessarily apply consistently across classifications or universally in every instance to all employees concerned. That said, we conclude that there is a sound evidentiary basis for the agreed factual contentions and have made findings in the same terms. The evidentiary findings are set out at 8.1.2.
[42] The expert evidence in respect of gender undervaluation is canvassed in Chapter 7.3.1 and we accept the following propositions:
1. The valuation of work is influenced by social expectations and gendered assumptions about the role of women as workers. In turn these social practices influence institutional and organisational practices.
2. Undervaluation occurs when work value is assessed with gender-biased assumptions. The reasons for gender-based undervaluation in Australia include the continuation of occupational segregation, the weaknesses in job and work valuation methods and their implementation, and social norms, gender stereotypes and historical legacies.[15]
3. Gender-based undervaluation in the employment context occurs when work value is assessed with gender-biased assumptions[16] which means the skill level of occupations, work or tasks is influenced by subjective notions about gender and gender roles in society. Skills of the job occupant are discounted or overlooked because of gender.[17]
4. Gender-based undervaluation of work in Australia arises from social norms and cultural assumptions that impact the assessment of work value.[18] These assumptions are impacted by women’s role as parents and carers and undertaking the majority of primary unpaid caring responsibilities. The disproportionate engagement by women in unpaid labour contributes to the invisibility and the under recognition of skills described as creative, nurturing, facilitating or caring skills in paid labour.[19]
5. The barriers and limitations to the proper assessment of work value in female dominated industries and occupations include:
·changes in the regulatory framework for equal pay and equal remuneration applications and the interpretation of that framework.
·procedural requirements such as the direction in wage-fixing principles that assessment of work value focus on changes in work value and tribunal interpretation of this requirement.
·conceptual considerations including the subjective notion of skill and the “invisibility” of skills when assessing work value in female-dominated industries and occupations.[20]
6. The approach taken to the assessment of work value by Australian industrial tribunals and constraints in historical wage fixing principles have been barriers to the proper assessment of work value in female dominated industries and occupations. In particular:
(i) The requirement for tribunals to make an adjustment to minimum rates based only on a change in work value has meant that there has been a limited capacity to address what may have been errors and flaws in the setting of minimum rates for work in female dominated industries and occupations. These limitations in the capacity of tribunals to properly value the work arise because any potential errors in the valuation of the work may have predated the last assessment of the work by the tribunals.
(ii) Errors in the valuation of work may have arisen from the female characterisation of the work, or the lack of a detailed assessment of the work. The time frame or datum point for the measurement of work value which limit assessment of work value to changes of work value, or changes measured from a specific point in time mitigated against a proper, full-scale assessment of the work free of assumptions based on gender.[21]
(iii) The capacity to address the valuation of feminised work has also been limited by the requirement to position that valuation against masculinised benchmarks. Work value comparisons continued to be grounded by a male standard, that being primarily the classification structure of the metal industry awards and to a lesser extent a suite of building and construction awards.[22]
[43] A central feature of one of the expert reports produced, the Junor Report, is the application of the Spotlight Tool to the work performed by RNs, ENs and AINS/PCWs working in aged care. The Spotlight Tool is a job and skills analysis tool designed as an aid in identifying, naming and classifying ‘invisible skills’ used in undertaking service work processes that are not directly observable. ‘Invisible’ in this context means ‘hidden’, ‘under-defined’, ‘under-specified’ or ‘under-codified’.[23]
[44] The Junor Report is discussed in Chapter 7.3.2.
[45] The Joint Employers contend that the Commission should be ‘cautious in readily accepting the data and analysis prepared using the Spotlight tool to support a finding of gender-based undervaluation’[24] and advance 3 broad propositions in support of that contention. Each of these propositions is discussed and rejected. We also reject the Joint Employers’ characterisation of certain Spotlight skills as personality traits or dispositions. In doing so we note that such characterisation is at the heart of the gendered undervaluation of work.
[46] We conclude that Assoc Prof Junor’s evidence was cogent, probative and relevant to our assessment of whether a variation of modern award minimum wages in the relevant awards is ‘justified by work value reasons’ (s.157(2)(a)).
[47] The evidence in respect of the gender pay gap is discussed at Chapter 7.3.3. We note that is uncontroversial that a gender pay gap exists in Australia. We accept the logic of the proposition in the expert evidence that gender undervaluation of work is a driver of the gender pay gap. We also accept as a general proposition that if all work was properly valued there would likely be a reduction in the gender pay gap. But we note that these proceedings are not a general inquiry into the drivers of the gender pay gap, and it is not necessary for the purposes of these proceedings that we determine why the relevant minimum rates in the 3 awards before us have not been properly fixed.
[48] Chapter 8 sets out our consideration of the Applications in light of the evidence and submissions.
[49] In Chapter 8.2 we consider the appropriate way forward in light of the extent of agreement between the parties, the evidentiary findings and the range of complex issues that arise for determination. We conclude that 3 broad considerations weigh in favour of an interim decision providing an increase in minimum wages for discrete categories of aged care workers:
1. It is common ground between the parties that the work undertaken by RNs, ENs and Certificate III PCWs in residential aged care has changed significantly in the past 2 decades such as to justify an increase in minimum wages for these classifications. We also recognise that there is ample evidence that the needs of those being cared for in their homes have significantly increased in terms of clinical complexity, frailty and cognitive and mental health.
2. Accordingly, in respect of direct care workers (including RNs, ENs, AIN/PCW/HCWs) the evidence establishes that the existing minimum rates do not properly compensate employees for the value of the work performed by these classifications of employees. The evidence in respect of support and administrative employees is not as clear or compelling and varies as between classification.
3. A number of complex issues require further submissions (and potentially further evidence) before they can be determined and we see no reason to delay an increase in minimum wages for direct care workers while that process takes place.
[50] We conclude that the Applications will be determined in 3 stages. This decision constitutes the first stage in that process. In this decision we determine the relevant legal principles and the conceptual issues that have been canvassed by the parties in relation to the Applications and have decided that an interim increase in the modern award minimum wages applicable to direct care aged care workers is justified by work value reasons.
[51] In stage 2 the parties will have the opportunity to make submissions and adduce evidence in relation.
1. The timing and phasing-in of the interim increase in the modern award minimum wages applicable to direct care aged care employees, including the appropriateness and application of the principles.
2. Whether making the interim increases to the modern award minimum wages applicable to direct care aged care employees in these proceedings is necessary to achieve the modern awards objective; and our provisional views in respect of the s.134(1) considerations.
3. Whether the interim increases in the modern award minimum wages applicable to direct care employees are necessary to achieve the minimum wages objective and our provisional views in respect of the s.284(1) considerations.
[52] Stage 3 will include a more detailed consideration of the classification definitions and structures in the relevant Awards. Interested parties may wish to make further submissions and call additional evidence in relation to these matters in this stage of the proceedings. We would then issue a further decision finalising the classification definitions and structures in the relevant Awards.
[53] Stage 3 will also determine wage adjustments that are justified on work value grounds for employees not dealt with in Stage 1, and determine any further wage adjustments that are justified on work value grounds for direct care employees granted interim wage increases in Stages 1 and 2 (in the context of our decision on classification definitions and structures).
[54] Staging our decision in this way:
· ensures that the parties are informed of our decision in respect of how ss.157(2) and (2A) of the FW Act apply to the Applications, before we determine the framing of various classification definitions in the relevant Awards and the Awards’ broader classification structures
· avoids unduly delaying any increase to minimum wages, pending finalisation of classification definitions and structures in the relevant Awards, and
· enables us to more quickly consider how to phase-in any initial minimum wage adjustments.
[55] As to form and quantum of the interim increase we conclude that, having regard to all of the matters canvassed in chapter 8.3, we are satisfied that a 15 per cent interim increase in minimum wages of the direct care classifications in the Aged Care and SCHADS Awards and for nurses working in aged care covered by the Nurses Award is ‘plainly justified by work value reasons’ as required by s.157(2).
[56] We also make it clear that this does not conclude our consideration of the Unions’ claim for a 25 per cent increase for other employees, namely administrative and support aged care employees. Nor are we suggesting that the 15 per cent interim increase necessarily exhausts the extent of the increase justified by work value reasons in respect of direct care aged care employees. Whether any further increase is justified will be the subject of submissions in Stage 3 of these proceedings.
[57] We also point out that in determining the quantum of the interim increase we have not taken into account all of the material before us.
[58] We discuss the Modern Awards Objective in Chapter 8.4.
[59] We note that we are not persuaded that s.134(1)(d), (da) and (g) are relevant to the interim increase we propose to award and express some other provisional views in respect of the remaining s.134(1) considerations.
[60] At present, we are unable to reach a concluded view on whether the proposed interim variation determination is necessary to achieve the modern awards objective. One of the matters we are required to take into account in forming that evaluative judgment is ‘the likely impact of any exercise of modern award powers on business, including on … employment costs’ (s.134(f)). The likely impact on employers of the interim increase we propose to award will be ameliorated to the extent of Government funding support for that increase. The extent of funding support is unknown at present.
[61] Given the funding arrangements in the aged care sector, the Joint Employers and the Commonwealth sought an opportunity to make further submissions regarding the timing of the implementation of any minimum wages increases arising from these proceedings. We conclude that the course proposed is a reasonable one and is comprehended within the staged approach we have adopted. To assist the parties in their submissions regarding the implementation of the interim increase, this section of our decision sets out the relevant legislative provisions and the approach taken to the phasing-in of Commission decisions in other cases.
[62] The Minimum Wages Objective is discussed in Chapter 8.5.
[63] It is common ground that the consideration in s.284(1)(e) is not relevant in the context of the Applications[25], we note that the consideration in s.284(1)(d) is in the same terms as s.134(1)(e) and we propose to invite further submissions on the proper construction and the relevance of the principle and we express some provisional views in respect of the remaining s.284(1) considerations.
[64] We deal with the next steps in this process in Chapter 9.
[65] A Mention will be listed for 9:30am on Tuesday 22 November 2022 for the purpose of issuing directions in respect of Stage 2 of these proceedings.
3. Legislative Framework
3.1 Overview
[66] The Applications are made under s.158(1) for the Commission to vary a modern award under s.157 of the Fair Work Act 2009 (the FW Act). Both of these provisions are found in Part 2-3 of the FW Act. It is uncontentious that the ANMF and HSU have the requisite standing to make the Applications and that the Applications seek to vary ‘modern award minimum wages’ as defined in s.284(3) in that they seek to vary ‘the rates of minimum wages in modern awards’. Under Part 2-3, the Commission has the power to make, vary or revoke modern awards either on the Commission’s own motion or in response to an application. In determining the Applications, the Commission is not confined to the terms of the Applications and may, subject to according interested parties procedural fairness, determine the Applications other than in the terms sought by the ANMF and the HSU (see s.599).
[67] Section 135 is titled ‘Special provisions relating to modern award minimum wages’ and provides:
(1)Modern award minimum wages cannot be varied under this Part except as follows:
(a)modern award minimum wages can be varied if the FWC is satisfied that the variation is justified by work value reasons (see subsection 157(2));
(b)modern award minimum wages can be varied under section 160 (which deals with variation to remove ambiguities or correct errors) or section 161 (which deals with variation on referral by the Australian Human Rights Commission).
Note 1: The main power to vary modern award minimum wages is in annual wage reviews under Part 2‑6. Modern award minimum wages can also be set or revoked in annual wage reviews.
Note 2: For the meanings of modern award minimum wages, and setting and varying such wages, see section 284.
(2)In exercising its powers under this Part to set, vary or revoke modern award minimum wages, the FWC must take into account the rate of the national minimum wage as currently set in a national minimum wage order.
[68] Section 135(1) constrains the capacity of the Commission to vary minimum wages in a modern award by providing that (apart from variations pursuant to ss.160 or 161, which are not presently relevant) modern award minimum wages cannot be varied under Part 2-3 of the FW Act unless the Commission is satisfied that the variation is justified by ‘work value reasons’ (as defined in s.157(2A)). Section 135(2) relevantly provides that in exercising powers to vary modern award minimum wages under Part 2-3, the Commission ‘must take into account the rate of the national minimum wage as currently set in a national minimum wage order’.
[69] The relevant power to vary modern award minimum wages under Part 2-3 is in s.157(2). So far as relevant for present purposes, s.157 provides:
Section 157 FWC may vary etc. modern awards if necessary to achieve the modern awards objective
(1) The FWC may:
(a)make a determination varying a modern award, otherwise than to vary modern award minimum wages or to vary a default fund term of the award; or
(b) make a modern award; or
(c) make a determination revoking a modern award;
if the FWC is satisfied that making the determination or modern award is necessary to achieve the modern awards objective.
…
(2)The FWC may make a determination varying modern award minimum wages if the FWC is satisfied that:
(a)the variation of modern award minimum wages is justified by work value reasons; and
(b)making the determination outside the system of annual wage reviews is necessary to achieve the modern awards objective.
Note: As the FWC is varying modern award minimum wages, the minimum wages objective also applies (see section 284).
(2A)Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following:
(a) the nature of the work;
(b) the level of skill or responsibility involved in doing the work;
(c) the conditions under which the work is done.
…
[70] Section 166 relevantly deals with when determinations under Part 2-3 varying modern award minimum wages come into operation.
[71] Sections 134, 284 and 138 of the FW Act are also relevant. Section 134(2) relevantly provides that the ‘modern awards objective’ (defined in s.134(1)) applies to the performance or exercise of the Commission’s functions or powers under Part 2-3. Section 284(2) relevantly provides that the ‘minimum wages objective’ (defined in s.284(1)) applies to the performance or exercise of the Commission’s functions or powers under Part 2-3, so far as they relate to varying modern award minimum wages. Section 138 provides:
138 Achieving the modern awards objective
A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.
[72] The general provisions relating to the performance of the Commission’s functions also apply to these proceedings.[26] Section 578(a) provides that in performing functions and exercising powers under a part of the FW Act the Commission must take into account the object of the FW Act and any particular objects of the relevant part. The object of the FW Act is set out in s.3; in particular, ss.3(a) and (b) provide:
3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(a)providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and
(b)ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and
…
[73] It is common ground between the parties that in order to exercise the power in s.157(2) to vary modern award minimum wages we must be satisfied that the variation is ‘justified by work value reasons’; ‘necessary to achieve the modern awards objective’, and ‘necessary to achieve the minimum wages objective’. Further, we must take into account the rate of the national minimum wage as currently set in a national minimum wage order.
[74] At the heart of these proceedings is the Applicants’ contention that the variation they seek to modern award minimum wages is ‘justified by work value reasons’ and so it is appropriate to first turn to s.157(2). Later in this chapter we return to the modern awards objective and the minimum wages objective.
3.2 Subsections 157(2)(a) and (2A)
[75] Section 157(2) deals with the variation of modern award minimum wages and provides:
(2)The FWC may make a determination varying modern award minimum wages if the FWC is satisfied that:
(a)the variation of modern award minimum wages is justified by work value reasons; and
(b)making the determination outside the system of annual wage reviews is necessary to achieve the modern awards objective.
Note: As the FWC is varying modern award minimum wages, the minimum wages objective also applies (see section 284).
[76] The expression ‘work value reasons’ is defined in s.157(2A) which provides:
(2A)Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following:
(a) the nature of the work;
(b) the level of skill or responsibility involved in doing the work;
(c) the conditions under which the work is done.
[77] Section 157(2A) was inserted into the FW Act by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (the 4 Yearly Review Amending Act).
[78] The 4 Yearly Review Amending Act repealed s.156 of the FW Act, which required the Commission to conduct 4 yearly reviews of modern awards, effective from 1 January 2018 (subject to transitional arrangements). As s.156(4) was repealed, the definition of ‘work value reasons’ in s.156(4) was inserted into s.157 as s.157(2A).[27]
[79] Two recent Full Bench decisions have considered the operation of former ss.156(3) and (4), and ss.157(2) and (2A), respectively:
· 4 yearly review of modern awards – Pharmacy Industry Award 2010 [2018] FWCFB 7621 (the Pharmacy Decision), and
· Independent Education Union of Australia [2021] FWCFB 2051 (the Teachers Decision).
3.2.1 The Pharmacy Decision
[80] The Pharmacy Decision[28] dealt with a claim by the Association of Professional Engineers, Scientists and Managers Australia[29] (APESMA), in the context of the 4 yearly review of modern awards to increase the minimum wages in the Pharmacy Industry Award 2010 (the Pharmacy Award) under then s.156 of the FW Act. APESMA’s primary claim was for wages to be increased by an amount necessary to restore what was said to be the proper relativity with the C10 classification rate now found in the Manufacturing and Associated Industries and Occupations Award 2020 (the Manufacturing Award). In the alternative, the APESMA sought a 25 per cent increase to all wage rates in the Pharmacy Award.
[81] At the time of the Pharmacy Decision, ss.156(3) and (4) provided:
Variation of modern award minimum wages must be justified by work value reasons
(3)In a 4 yearly review of modern awards, the FWC may make a determination varying modern award minimum wages only if the FWC is satisfied that the variation of modern award minimum wages is justified by work value reasons.
(4)Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following:
(a) the nature of the work;
(b) the level of skill or responsibility involved in doing the work;
(c) the conditions under which the work is done.
[82] The claim was opposed by the Pharmacy Guild of Australia, Australian Business Industrial and the NSW Business Chamber (ABI/NSWBC), and Business SA.
[83] The Pharmacy Guild of Australia’s case in opposition to the APESMA’s claim was, in summary:
· The relevant datum point for the assessment of any change in work value was the making of the pre-reform Community Pharmacy Award 1998 on 24 December 1996, which was the last occasion when a federal industrial tribunal had determined the work value of pharmacists.
· The changes to the work of pharmacists since 1996 had been evolutionary in nature and had not resulted in a significant net addition to the work value requirements of a pharmacist.
[84] ABI/NSWBC likewise contended that the changes relied upon by the APESMA did not satisfy the test for a significant net addition to work requirements to justify the wage increases sought, and that increases of that magnitude would not meet the modern awards objective and the minimum wages objective.
[85] In relation to the merits, the Pharmacy Full Bench was not satisfied that there had been a fundamental change in the nature of the work of pharmacists since 1998, or in their skills or level of responsibility, in the way suggested by the APESMA. The Full Bench reached the following conclusion on the evidence considered as a whole:
‘In summary, we consider that although the mix of work being performed and skills being exercised has changed since 1998, and some skills for which pharmacists have always been trained are now utilised in a more intense and systematised fashion, there has not been the fundamental change in the work of pharmacists since 1998 which would justify wage increases of the order claimed by the APESMA.’[30]
[86] In a subsequent decision,[31] the Full Bench set out 3 conclusions stated in the Pharmacy Decision:
‘(1) The APESMA had demonstrated that there was an increase in work value associated with the introduction of Home Medicine Reviews (HMR) and Residential Medication Management Reviews (RMMR) that justified a discrete adjustment to award remuneration by means of the introduction of a new allowance. We invited further submissions about the form of this allowance (including whether it should be an annual or weekly allowance or an allowance payable each time a HMR or RMMR is performed) and its quantum.
(2) We were satisfied that there had been an increase in the work value of pharmacists since 1998 in respect of the introduction of inoculations, the provisions of emergency contraception, the downscaling of medicines to pharmacy-only status, and a general increase in the level of responsibility and accountability. We invited parties to make further submissions as to how these findings should be reflected in an adjustment to remuneration, noting that not all pharmacists administer inoculations or dispense emergency contraception.
(3) There was a lack of alignment in pay rates and relativities as between pharmacists (who require a four-year undergraduate degree) under the Pharmacy Award and those for classifications requiring equivalent qualifications under the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award), as well as a lack of a consistent relationship with the Australian Qualifications Framework (AQF). We considered that this might potentially constitute a work value consideration relevant to the 4 yearly review of the Pharmacy Award. We invited further submissions as to this matter, and foreshadowed the possibility that this aspect of the review might need to be referred back to the President of the Commission for consideration as to the procedural course to be taken pursuant to s 582 of the Fair Work Act 2009 (FW Act) since it might have implications for other awards of the Commission …’ [Footnotes omitted]
[87] The Pharmacy Decision traced the genesis and development of the concept of fixing wages based on ‘work value’ from 1921 to the ‘Work Value Changes’ principle established in the National Wage Case April 1991.[32]
[88] Principle 6 of the wage fixing principles set out the basis on which changes in work value may justify a change in wage rates and codified the general principles which emerged over time.[33] It provided:
‘6. WORK VALUE CHANGES
(a) Changes in work value may arise from changes in the nature of the work, skill and responsibility required or the conditions under which work is performed. Changes in work by themselves may not lead to a change in wage rates. The strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification.
In addition to meeting this test a party making a work value application will need to justify any change to wage relativities that might result not only within the relevant internal award structure but also against external classifications to which that structure is related. There must be no likelihood of wage leapfrogging arising out of changes in relative position.
These are the only circumstances in which rates may be altered on the ground of work value and the altered rates may be applied only to employees whose work has changed in accordance with this Principle.
(b) In applying the Work Value Changes Principle, the Commission will have regard to the need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which work is performed (s.88B(3)(a)).
(c) Where new or changed work justifying a higher rate is performed only from time to time by persons covered by a particular classification, or where it is performed only by some of the persons covered by the classification, such new or changed work should be compensated by a special allowance which is payable only when the new or changed work is performed by a particular employee and not by increasing the rate for the classification as a whole.
(d) The time from which work value changes in an award should be measured is the date of operation of the second structural efficiency adjustment allowable under the August 1989 National Wage Case decision (August 1989 National Wage Case) [Print H9100; (1989) 30 IR 81].
(e) Care should be exercised to ensure that changes which were or should have been taken into account in any previous work value adjustments or in a structural efficiency exercise are not included in any work evaluation under this Principle.
(f) Where the tests specified in (a) are met, an assessment will have to be made as to how that alteration should be measured in monetary terms. Such assessment will normally be based on the previous work requirements, the wage previously fixed for the work and the nature and extent of the change in work.
(g) The expression "the conditions under which the work is performed" relates to the environment in which the work is done.
(h) The Commission will guard against contrived classifications and over-classification of jobs.
(i) Any changes in the nature of the work, skill and responsibility required or the conditions under which the work is performed, taken into account in assessing an increase under any other principle of this Statement of Principles, will not be taken into account under this Principle.’[34]
[89] When the Australian Industrial Relations Commission (AIRC) was stripped of its minimum wage-fixing functions by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), the wage fixing principles became redundant and the concept of work value then played no part in wage fixation until the enactment of the FW Act in 2009.[35]
[90] Against that historical background, the Pharmacy Full Bench stated 7 propositions in relation to the proper construction of then ss.156(3) and (4):
1.The effect of s.156(3) is to establish a jurisdictional prerequisite for the exercise of power to vary minimum wages in a modern award in the conduct of a 4 yearly review of modern awards, namely the reaching of a state of satisfaction on the part of the Commission that the variation is ‘justified by work value reasons’.[36]
2.Because the jurisdictional prerequisite is expressed in terms of the Commission’s ‘satisfaction’ concerning whether a variation is ‘justified’ by the prescribed type of reasons – a requirement which involves an element of subjectivity and about which reasonable minds may differ – it requires the formation of a broad evaluative judgment involving the exercise of a discretion.[37]
3.The definition of ‘work value reasons’ in s.156(4) requires only that the reasons justifying the amount to be paid for a particular kind of work be ‘related to any of the following’ matters set out in paragraphs (a)-(c). The expression ‘related to’ is one of broad import that requires a sufficient connection or association between 2 subject matters. The degree of the connection required is a matter for judgment depending on the facts of the case, but the connection must be relevant and not remote or accidental.[38] The subject matters between which there must be a sufficient connection are, on the one hand, the reasons for the pay rate and, on the other hand, any of the 3 matters identified in paragraphs (a)-(c) – that is, any one or more of the 3 matters.[39]
4.Although the 3 matters identified – the nature of the work, the level of skill or responsibility involved in doing the work, and the conditions under which the work is done – clearly import the fundamental criteria used to assess work value changes under the wage fixing principles which operated from 1975 to 1981 and 1983 to 2006, the legislature in enacting s.156(4) chose not to import the additional requirements contained in those wage fixing principles. In particular, s.156(4) does not contain any requirement that the work value reasons consist of identified changes in work value measured from a fixed datum point. Likewise, s.156(4) did not incorporate the test in the wage-fixing principles that the change in the nature of work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification. In substance, ss.156(3) and (4) leave it to the Commission to exercise a broad and relatively unconstrained judgment as to what may constitute work value reasons justifying an adjustment to minimum rates of pay similar to the position which applied prior to the establishment of wage fixing principles in 1975.[40]
5.It would be open to the Commission to have regard, in the exercise of its discretion, to considerations which have been taken into account in previous work value cases under differing past statutory regimes. For example, although s.156(4) contains no requirement for the measurement of work value changes from a fixed datum point, it is likely the Commission would usually take into account whether any feature of the nature of work, the level of skill or responsibility involved in performing the work or the conditions under which it is done has previously been taken into account in a proper way (that is, in a way which is free of gender bias and any other improper considerations) in assessing wages in the relevant modern award or its predecessor in order to ensure that there is no ‘double counting’.[41]
6.The considerations referred to in [190] of Child Care Industry (Australian Capital Territory) Award 1998 (the ACT Child Care Decision)[42] may be of relevance in particular cases, as may considerations in other authoritative past work value cases.[43]
7.Even if the jurisdictional prerequisite in s.156(3) is satisfied, it remains the case that the Commission must, as required by s.138, ensure that the inclusion of the varied minimum wages term in the relevant modern award would be necessary to achieve the modern awards objective and the minimum wages objective.
[91] The parties were invited to comment on the above 7 propositions and, broadly speaking, they accepted, or did not contest, those propositions. Propositions 4, 5 and 6 were the subject of particular comment.
[92] Propositions 4 and 5 are to the effect that while it would be open to the Commission to have regard to considerations taken into account in previous work value cases under differing past statutory regimes, in enacting s.156(4) (now s.157(2A)) the legislature chose to only import the fundamental criteria used to assess work value changes contained in earlier wage fixing principles, not the additional requirements contained in those principles.
[93] The ANMF and HSU commented on the observation in proposition 5 that ‘it is likely the Commission would usually take into account whether any feature of the nature of the work, the level of skill or responsibility involved in performing the work or the conditions under which it is done has previously been taken into account in a proper way (that is, in a way which is free of gender bias and any other improper considerations) in assessing wages in the relevant modern award or its predecessor in order to ensure that there is no “double counting”.’[44]
[94] That observation was accepted by the ANMF and HSU on the basis that a past ‘proper’ assessment must be one which, according to the current assessment of the Commission, correctly valued the work. A past assessment which was not free of gender-based undervaluation or other improper considerations would not constitute a proper assessment for these purposes.[45]
[95] The Unions’ observations accord with our understanding of proposition 5 and on that basis we agree with proposition 5.
[96] The Joint Employers accept the propositions set out in Pharmacy Decision and submit:
‘In the context of an application to vary minimum award rates based on work value reasons, the position of the employer interests is that the Commission must consider the propositions in the Pharmacy Decision and Independent Education Union of Australia’.[46]
[97] The Commonwealth did not contest any of the propositions in the Pharmacy Decision but went on to submit:
‘The Commonwealth also agrees with the observation made by the Full Bench in the Pharmacy Decision that the three limbs of s 157(2A) are sufficiently broad so as to import the fundamental criteria used to assess work value changes under the wage fixing principles which operated from 1975 to 1981 and 1983 to 2006.[47] There is nothing to indicate that the legislature, in enacting the FW Act, intended to change the meaning of ‘work value’ as a core concept.
Since the earliest days of the federal industrial relations system it has been accepted that an intrinsic part of a work value assessment is that the rates of pay for particular work should be understood and assessed relative to other rates of pay for comparable work.[48]
The Commonwealth submits that the Commission should continue to have regard to relativities in wage rates within and between awards (internal and external wage relativities), but that such considerations should not be determinative.
Ultimately, the Commission has discretion as to whether it should vary modern award minimum wages where the criteria in s 157(2) are met.’[49] [Emphasis added]
[98] In reply, the ANMF expressed a note of caution in respect of the submissions advanced by the Commonwealth:
‘…Expressed at that level of generality—i.e., some aspects of former approaches may be relevant—there is nothing objectionable in the submission. But the Commission would not treat earlier approaches as any kind of “step,” whether first, last, or middle.
For reasons set out by the ANMF in its opening submissions at [32]–[38] (which submissions it presses), some of the principles set out in the ACT Child Care Decision at [190] can probably be safely applied, but many cannot, and the application of some (i.e., those that call up the “significant net addition” language) will lead into error.
It is undesirable to overlay statutory expressions with a multiplicity of expositions, functioning as “tests,” which might carry the consequence that the words of the statute are overlaid and forgotten. The result can be that, as Kitto J put it in Ballas v Theophilos (No.1) (1957) 97 CLR 186 at 196, “expressions which have been used in other cases [are carried] to such a length as to desert the language of the statute.”
The question—the only question at this stage of the analysis—for the Commission is whether work value reasons exist so as to justify an increase in minimum award wages. [T]he statute contains no words of limitation so that only certain kinds of work value reasons (e.g., those demonstrating “significant net addition”), etc., qualify. The Commission would artificially narrow the scope of its broad discretion were it to import any limitations on its power.’[50]
[99] The extent to which external and internal relativities and the selection of a datum point for the assessment of work value change are relevant to the Commission’s task under s.157(2) are addressed later in this chapter. Suffice to record here our broad agreement with the ANMF’s submissions. It is undesirable to overlay the words of ss.157(2) and (2A) with additional requirements.
[100] Proposition 6 is that the considerations referred to in [190] of the ACT Child Care Decision may be of relevance in particular cases, as may considerations in other authoritative past work value cases. This proposition was contentious in the matter before us and we return to it shortly.
3.2.2 The Teachers Decision
[101] The Teachers Decision[51] concerned 2 applications made by the Independent Education Union of Australia (IEU). The first was for an equal remuneration order to apply to early childhood teachers employed in long day care centres and preschools who are covered by the Educational Services (Teachers) Award 2020 (EST Award). The second was to increase the minimum salaries for all teachers covered by the EST Award on work value grounds under s.157(2). We need only concern ourselves with the work value application.
[102] The Teachers Full Bench adopted the conclusions in the Pharmacy Decision and decided they were applicable to ss.157(2)(a) and (2A) on the basis that those provisions are in terms relevantly identical to the former ss.156(3) and (4).[52]
[103] Later, the Full Bench returned to the Pharmacy Decision noting it established that:
‘the judgment required under s 157(2) of the FW Act as to whether a variation to minimum award wages is “justified by work value reasons” is relatively broad and unconstrained in nature. It may include but is not confined to whether the work value of the relevant class of employees has changed since a past “datum point” in time when there was last a consideration of the work value of the employee, and may extend to a wider consideration of whether the work of the employees in question has been undervalued. Undervaluation in a broader sense may arise because the award rates of pay for the relevant class of employees have never been fixed on the basis of any assessment of their work value or in accordance with the established principles for the proper fixation of minimum rates.’[53]
[104] On the basis of the history of the federal award regulation of teachers, the Full Bench decided to assess the issue of whether there has been any work value change by reference to a datum point of 1996, consistent with the IEU’s primary case. The IEU contended that there had been significant changes since 1996 in the work value of teachers covered by the EST Award, including early childhood teachers, that had not been taken into account in the fixing of minimum wage rates for such teachers. The IEU identified 3 major categories of change in this respect: increased professionalism that had given rise to higher quality teachers; an increase in the complexity of teachers’ work, and substantially more intense and demanding work. The IEU’s claim was for the pay scale in the EST Award to be adjusted first to remove inappropriate internal compression at the higher pay levels, and second to increase wages by 17.5 per cent. Alternatively, the IEU sought a flat 25 per cent increase to the current award rates.
[105] The Full Bench was satisfied that an adjustment to the minimum rates of teachers covered by the EST Award was justified by the following work value reasons:
1.The rates for teachers under the EST Award and its federal predecessors had never been fixed on the basis of a proper assessment of the work value of teachers nor were they properly fixed minimum rates. In particular, the rates of pay did not recognise that teachers are degree-qualified professionals and accordingly did not have an appropriate relativity with the Metal Industry classification structure.
2.There had been substantial changes in the nature of the work of teachers and the level of their skills and responsibility since 1996, which constituted a significant net addition to their work value which has not been taken into account in the rates of pay in the EST Award.
[106] In respect of the second conclusion above, the Full Bench was satisfied that there had, since 1996, been a significant net addition to the work value of teachers covered by the EST Award in all classifications, in the following main areas:
1. additional training requirements for entry into the profession
2.increased professional accountability associated with registration requirements, standardised testing and greatly increased expectations concerning reporting and being accessible to parents and families
3.greater complexity of work resulting from a shift to outcomes-based education and differentiated teaching, with associated requirements for greater documentation and analysis of individual educational progress, and
4.teaching and caring for a more diverse student population including, in particular, additional needs children.[54]
[107] In respect of these changes the Teachers Full Bench also observed:
‘as is typically the case, work value change has occurred as part of a continuum of change and must be assessed as a matter of degree. It is not the case that, simply because the occurrence of some of these developments can be detected as early as the time of the 1996 datum point or before, such developments are to be discounted and the conclusion reached that no change of significance has happened at all. Many of the policy developments affecting the work of teachers have had a long genesis and have taken a considerable period to be implemented and affect the work of teachers in practice. In respect of outcomes-based learning and differentiated teaching, for example, the evidence suggests that this was occurring to some degree at the beginning of the period under consideration. However this does not gainsay the proposition that, since 1996, the degree to which this has been implemented in teaching practice has increased the complexity of teachers’ work and contributed to an increase in work value.’[55]
[108] The Full Bench went on to consider whether the wage rates in the EST Award have been properly fixed:
‘The history of wage fixation for teachers in the federal industrial relations system also gives rise to another relevant consideration: whether the wage rates in the EST Award have ever been properly fixed as minimum rates. In the Pharmacy Award decision,[56] the Full Bench described in detail the development by the AIRC of an approach whereby the proper fixation of award minimum rates of pay required an alignment between key classifications in the relevant award and classifications with equivalent qualification and skill levels in the classification structure in what was originally the Metal Industry Award 1984 – Part I and subsequently became the Metal, Engineering and Associated Industries Award, 1998 (Metal Industry classification structure). We endorse and adopt that analysis without repeating it. It is sufficient for present purposes to refer to the following passage from the ACT Child Care decision:
[714] Amended witness statement of Linda Hardman dated 9 May 2022 at [54]–[55].
[715] Witness statement of Mark Sewell dated 3 March 2022 at [92]; Witness statement of Johannes Brockhaus dated 3 March 2022 at [14]; Witness statement of Anna-Maria Wade dated 23 May 2022 at [46].
[716] See Supplementary witness statement of Christopher Friend dated 29 October 2021 at [57]; Witness statement of David Eden dated 12 October 2021 at [42]; Witness statement of James Eddington dated 5 October 2021 at [67].
[717] Royal Commission Final Report Vol 2 at 215.
[718] Royal Commission Final Report Vol 1 at 261, Recommendation 78.
[719] Meagher Report at 14.
[720] Meagher Report at 15–16.
[721] Meagher Report at iii.
[722] Meagher Report at 23.
[723] Supplementary Meagher Report 20.
[724] Eagar Report 3–4.
[725] Kurrle Report p.10.
[726] See Lay Witness Report at [291].
[727] Amended witness statement of Wendy Knights dated 23 May 2022 at [42]–[44], [48]. Witness statement of Linda Hardman, 9 May 2022 at [43]–[45].
[728] Amended witness statement of Werndy Knights, 23 May 2022 at [42]–[44].
[729] Reply witness statement of Alison Curry, 20 April 2022 [71]–[72].
[730] See Witness statement of Emma Brown dated 2 March 2022 a [23]–[25]; Amended witness statement of Craig Smith dated 23 May 2022 at [28]–[40].
[731] Witness statement of Emma Brown dated 2 March 2022 at [24]–[25].
[732] Royal Commission, Final Report, Vol 1 at 14.
[733] Royal Commission, Final Report, Vol 1 at 15.
[734] Consensus Statement at [9].
[735] Consensus Statement at [17].
[736] Charlesworth Report at [51]; Supplementary Charlesworth Report at [73].
[737] Meagher Report at 30.
[738] Meagher Report at 16.
[739] See Witness statement of Eugene Basciuk dated 28 May 2022 at [50]; Witness statement of Catherine Evans dated 26 October 2021 at [53]; Witness statement of Michelle Harden dated 30 March 2021 at [42] [43]; Amended witness statement of Suzanne Hewson dated 6 May 2022 at [28]; Amended witness statement of Hazel Bucher dated 10 May 2022 at [43d]; Reply witness statement of Mark Castieau dated 20 April 2022 at [17] [18]; Reply witness statement of Alison Curry dated 20 April 2022 at [47] [52]; Reply witness statement of Fiona Gauci dated 19 April 2022 at [63] [69]; Reply witness statement of Donna Kelly dated 20 April 2022 at [18] [20]; Amended witness statement of Wendy Knights dated 23 May 2022 at [78]; Witness statement of Pamela Little dated 30 March 2021 at [28e]; Witness statement of Helen Platt dated 29 March 2021 at [37]; Reply witness statement of Antoinette Schmidt dated 20 April 2022 at [28] [29]; Witness statement of Susan Toner dated 28 September 2021 at [30] [31]; Witness statement of Jane Wahl dated 21 April 2022 at [39].
[740] Amended witness statement of Hazel Bucher dated 10 May 2022 at [43(d)]; Reply witness statement of Mark Castieau dated 20 April 2022 at [17]-[18]; Reply witness statement of Alison Curry dated 20 April 2022 at [47] [48]; Reply witness statement of Fiona Gauci dated 19 April 2022 at [63] [69]; Amended witness statement of Wendy Knights dated 23 May 2022 at [78].
[741] Amended witness statement of Hazel Bucher dated 10 May 2022 at [41].
[742] Amended witness statement of Wendy Knights dated 23 May 2022 at [78].
[743] Reply witness statement of Donna Kelly dated 20 April 2022 at [22].
[744] Reply witness statement of Alison Curry dated 20 April 2022 at [55].
[745] Witness statement of Johannes Brockhaus dated 3 March 2022 at [43]–[44]; Witness statement of Emma Brown dated 2 March 2022 at [80]; Witness statement of Paul Sadler dated 1 March 2022 at [90]; Witness statement of Mark Sewell dated 3 March 2022 at [111].
[746] Meagher Report at 22.
[747] Transcript, 2 May 2022, PN2692.
[748] Royal Commission Final Report Vol 2 at 115.
[749] Royal Commission Final Report Vol 2 at 115.
[750] Reply witness statement of Donna Cappelluti dated 21 April 2022 at [12]–[13].
[751] Witness statement of Mark Castieau dated 29 March 2021 at [50].
[752] Witness statement of Paul Jones dated 1 April 2021 at [32], [34].
[753] Witness statement of Susanne Wagner dated 28 October 2022 at [64].
[754] Charlesworth Report at [52].
[755] Supplementary Charlesworth Report at [71d].
[756] Meagher Report at 8, 24.
[757] Meagher Supplementary Report at 14-15.
[758] Transcript, 2 May 2022, PN2731.
[759] Kurrle Report at 5.
[760] Witness statement of Maree Bernoth dated 29 October 2021 at [56]; Witness statement of Geronima Bowers dated 1 April 2021 at [31]; Witness statement of Sheree Clarke dated 29 October 2021 at [61] [62]; Witness statement of Fiona Gauci dated 29 March 2021 at [47] [48], [57]; Witness statement of Paul Jones dated 1 April 2021 at [42]; Reply witness statement of Donna Kelly dated 20 April 2022 at [31] [33]; Amended statement of Wendy Knights dated 23 May 2022 at [46]; Witness statement of Pamela Little dated 30 March 2021 at [61]; Witness statement of Tracy Roberts dated 23 March 2021 at [148] [149]; Witness statement of Paul Sadler dated 1 March 2022 at [94] [96], Witness statement of Mark Sewell dated 3 March 2022 at [60].
[761] Amended witness statement of Kerrie Boxsell dated 19 May 2022 at [47]–[48]; Witness statement of Judeth Clarke dated 29 March 2021 at [34]; Amended witness statement of Virginia Mashford dated 6 May 2022 at [50]; Witness statement of Paul Sadler dated 1 March 2022 at [95]–[98].
[762] Witness statement of Judeth Clarke dated 29 March 2021 at [27]; Amended witness statement of Susan Digney dated 19 May 2022 at [5] [53]; Reply witness statement of Virginia Ellis dated 20 April 2022 at [43] [48]; Reply witness statement of Lynette Flegg dated 14 April 2022 at [25] –[33]; Reply witness statement of Fiona Gauci dated 19 April 2022 at [58] [62]; Amended reply witness statement of Jade Gilchrist dated 20 May 2022 at [8]; Reply witness statement of Paul Jones dated 20 April 2022 at [19]–[22]; Reply witness statement of Darren Kent dated 21 April 2022 at [31]; Reply witness statement of Sandra O’Donnell dated 13 April 2022 at [60] [66]; Reply witness statement of Kathy Sweeney dated 14 April 2022 at [50] –[55]; Reply witness statement of Kristy Youd dated 19 April 2022 at [73]–[76].
[763] Witness statement of Sheree Clarke dated 29 October 2021 at [61] [62]; Amended reply witness statement of Jade Gilchrist dated 20 May 2022 at [8]; Reply witness statement of Donna Kelly dated 20 April 2022 at [33]; Amended witness statement of Patricia McLean dated 9 May 2022 at [77]; Witness statement of Paul Sadler dated 1 March 2022 at [98]; Reply witness statement of Antoinette Schmidt dated 20 April 2022 at [25]; Witness statement of Mark Sewell dated 3 March 2022 at [86].
[764] Witness statement of Geronima Bowers dated 1 April 2022 at [31]; Amended witness statement of Pauline Breen dated 9 May 2022 at [21]; Witness statement of Judeth Clarke dated 29 March 2021 at [26]; Reply witness statement of Lynette Flegg dated 14 April 2022 at [31].
[765] Reply witness statement of Virginia Ellis dated 20 April 2022 at [53]; Reply witness statement of Sally Fox dated 14 April 2021 at [28]; Amended reply witness statement of Jade Gilchrist dated 20 May 2022 at [10]–[13], [16]; Transcript, 11 May 2022, PN11624; Amended witness statement of Wendy Knights, 23 May 2022 at [45]; Witness statement of Pamela Little dated 30 March 2021 at [61].
[766] Witness statement of Paul Sadler dated 1 March 2022 at [95]–[97].
[767] Meagher Report at 4; Meagher Supplementary Report at 5.
[768] Meagher Report at 19.
[769] Meagher Supplementary Report at 15.
[770] Junor Report Annexure 7 at [32].
[771] Junor Report Annexure 6 at [73].
[772] Smith/Lyons Report at [138].
[773] See Witness statement of Maree Bernoth dated 29 October 2021 at [54], Amended witness statement of Wendy Knights dated 23 May 2022 at [76], Witness statement of Jane Wahl dated 21 April 2022 at [40].
[774] Consensus Statement at [10].
[775] Consensus Statement at [11].
[776] Smith/Lyons Report at [55].
[777] Smith/Lyons Report at [60].
[778] Smith/Lyons Report at [56].
[779] Smith/Lyons Report at [61]; Ex parte H.V. McKay (1907) 2 CAR 1.
[780] Smith/Lyons Report [65]–[107].
[781] Smith/Lyons Report at [59].
[782] Smith/Lyons Report at [59].
[783] Smith/Lyons Report at [60].
[784] Smith/Lyons Report at [62].
[785] Smith/Lyons Report at [62].
[786] Junor Report at [48].
[787] B Burchell, et al, A New Method to Understand Occupational Segregation in European Labour Markets (European Commission, Directorate of Justice, 2014) at 30.
[788] Junor Report Annexure 9 at [56].
[789] Junor Report Annexure 9 Table A9-1
[790] D N Barron, E West 'The financial costs of caring in the British labour market: is there a wage penalty for workers in caring occupations?' (2013) British Journal of Industrial Relations 51(1) 104-123; P England, M Budig, N Folbre 'Wages of virtue: The relative pay of care work' (2002) 49(4) Social Problems 455-473; B.S Kilbourne, P England, G Farkas, K Beron, D Weir 'Returns to skill, compensating differentials, and gender bias: Effects of occupational characteristics on the wages of white women and men' (1994) 100(3) American Journal of Sociology 689-719.
[791] J Twigg, C Wolkowitz, R L Cohen, S Nettleton 'Conceptualising body work in health and social care' (2011) Sociology of Health & Illness 33(2) 171-188.
[792] Meagher Report at 27–28.
[793] Meagher Report at 26.
[794] See England et al, ‘Wages of Virtue: The Relative Pay of Care Work’ (2002) 49(4) Social Problems 455; R E Dwyer, ‘The care economy? Gender, economic restructuring, and job polarisation in the US Labor Market’ (2013) 78(3) American Sociological Review 390; D N Barron, E West, ‘The Financial Costs of Caring in the British Labour Market: Is there a Wage Penalty for Workers in Caring Occupations?’ (2013) 51(1) British Journal of Industrial Relations 104.
[795] Meagher Report at 28.
[796] Meagher Report at 29.
[797] Meagher Report at 29.
[798] Meagher Report at 29–30.
[799] Charlesworth Report at [43].
[800] Smith/Lyons Report at [62].
[801] Smith/Lyons Report at [47] citing A-F Bender and F Pigeyre, ‘Job evaluation and gender pay equity: a French example’ (2016) 34(4) Equality, Diversity and Inclusion: An International Journal 267 at 268–270. Assoc Prof Smith and Dr Lyons also note at [52]: ‘Peetz (D Peetz, ‘Regulation distance, labour segmentation and gender gaps’ (2015) 39(2) Cambridge Journal of Economics 345) examines the impact of stereotypical gender attitudes of skill, and notes they are more subjective than objective. Peetz argues sex-based stereotyping can be a major reason for the undervaluation of jobs and tasks performed primarily by women or work perceived as intrinsically “feminine” in nature. The tasks performed by, and skills applied in, female-dominated occupations – such as care-giving, manual dexterity, human relations skills, and working with children – are often viewed as being of lesser value than the tasks and work performed in male-dominated occupations.’
[802] Smith/Lyons Report at [60].
[803] Smith/Lyons Report at [59].
[804] Smith/Lyons Report at [56].
[805] Smith/Lyons Report at [93].
[806] Smith/Lyons Report at [90].
[807] Smith/Lyons Report at [92].
[808] Junor Report at [20].
[809] Junor Report at [23].
[810] Junor Report at [23], Annexure 6.
[811] Junor Report at [23], Annexure 7.
[812] Junor Report at [101].
[813] Junor Report at 22.
[814] Junor Report at [97].
[815] Junor Report at [103].
[816] Junor Report at [103].
[817] Junor Report at [104].
[818] Junor Report at 28.
[819] Junor Report at 29.
[820] Junor Report at 30.
[821] Junor Report at [124].
[822] Junor Report at [144]–[186].
[823] Junor Report at [105].
[824] Junor Report at [106].
[825] Junor Report at [28], [97]–[100].
[826] Junor Report at [29], [106]–[108].
[827] Junor Report at [98]–[100].
[828] Junor Report at [128].
[829] Junor Report at [31] and [267].
[830] Junor Report at [132].
[831] Junor Report at [132].
[832] Junor Report at [186]–[190].
[833] Junor Report at [246]–[247].
[834] Junor Report at [289].
[835] Joint Employer closing submissions dated 22 July 2022 Annexure J at [4.3].
[836] Joint Employer closing submissions dated 22 July 2022 Annexure J at [4.3]–[4.4].
[837] Transcript, 2 May 2022, PN3114–PN3126.
[838] Transcript, 2 May 2022, PN3127–PN3133.
[839] Transcript, 2 May 2022, PN3134–PN3148.
[840] Transcript, 2 May 2022, PN3149–PN3154.
[841] Transcript, 2 May 2022, PN3154–PN3189.
[842] Transcript, 2 May 2022, PN3190–PN3232.
[843] Joint Employers submission – response to Background Documents 6, 7 and 8 dated 29 August 2022 at [3.19].
[844] Joint Employers closing submissions dated 22 July 2022 at [4.9].
[845] ANMF closing submission in reply dated 17 August 2022 at [402]–[403].
[846] Transcript, 2 May 2022, PN3122.
[847] ANMF closing submissions in reply dated 17 August 2022 at [400].
[848] Joint Employers closing submissions dated 22 July 2022 Annexure J at [4.10]–[4.11].
[849] Joint Employers closing submissions dated 22 July 2022 Annexure J at [4.13].
[850] Joint Employers closing submissions dated 22 July 2022 Annexure J at [4.14]–[4.16].
[851] ANMF closing submissions in reply dated 17 August 2022 at [404].
[852] V Adams, J A Nelson ‘The Economics of nursing: Articulating care’ (2009) Feminist Economics 15(4) 3–29.
[853] Junor Report at [249].
[854] Junor Report at [250].
[855] Junor Report at [251].
[856] Junor Report at [252]–[255].
[857] Junor Report Annexure 9 at [2].
[858] Joint Employers closing submissions dated 22 July 2022 Annexure J at [4.18]–[4.19].
[859] Joint Employers closing submissions dated 22 July 2022 Annexure J at [4.17]; Junor Report at [118]–[119].
[860] Joint Employers closing submissions in reply dated 19 August 2022 at [3.24].
[861] Joint Employers closing submissions in reply dated 19 August 2022 at [3.25], see table.
[862] Joint Employers closing submissions in reply dated 19 August 2022 at [3.27].
[863] ANMF closing submissions in reply dated 17 August 2022 at [441].
[864] Charlesworth Report at [13].
[865] Meagher Report at v.
[866] Transcript, 2 May 2022, PN2665–PN2668.
[867] Smith/Lyons Report at [90].
[868] Smith/Lyons Report at [91].
[869] Smith/Lyons Report at [92].
[870] Smith/Lyons Report at [131].
[871] Transcript, 24 August 2022, PN15030–PN1533.
[872] Transcript, 1 September 2022, PN15924.
[873] Transcript, 24 August 2022, PN14363.
[874] Joint Employers closing submissions in reply dated 19 August 2022 at [3.22] (a)–(b).
[875] Transcript, 1 September 2022, PN15751–PN15753.
[876] Joint Employers closing submissions dated 22 July 2022 Annexure J at [4.17]; Joint Employers closing submissions in reply dated 19 August 2022 at [3.25]–[3.27].
[877] Transcript, 1 September 2022, PN15745–PN15749.
[878] Transcript, 1 September 2022, PN15748–PN15755.
[879] Transcript, 1 September 2022, PN15746.
[880] Transcript, 1 September 2022, PN15750.
[881] Transcript, 1 September 2022, PN15748.
[882] Transcript, 1 September 2022, PN15751–PN15753.
[883] Transcript, 1 September 2022, PN15755.
[884] Transcript, 1 September 2022, PN15914–PN15922.
[885] Junor Report at [140].
[886] Transcript, 1 September 2022, PN15918.
[887] Transcript, 1 September 2022, PN15861.
[888] Transcript, 25 August 2022, PN15126.
[889] Transcript, 1 September 2022, PN15860.
[890] Transcript, 25 August 2022, PN15126.
[891] Junor Report at [71].
[892] Witness statement of Mark Sewell dated 3 March 2022 at [2], [8].
[893] Witness statement of Mark Sewell dated 3 March 2022 at [93].
[894] Transcript, 12 May 2022, PN12997–PN13000.
[895] Transcript, 12 May 2022, PN13100–PN13110.
[896] Transcript, 12 May 2022, PN13109.
[897] ANMF closing submissions dated 22 July 2022 at [829]; Transcript, 25 August 2022, PN1522.
[898] ANMF closing submissions dated 22 July 2022 at [830].
[899] ANMF closing submissions dated 22 July 2022 at [825].
[900] ANMF closing submissions in reply dated 17 August 2022 at [327].
[901] ANMF closing submissions in reply dated 17 August 2022 at [329].
[902] Transcript, 24 August 2022, PN15046–PN15047.
[903] Transcript, 25 August 2022, PN15132.
[904] Transcript, 25 August 2022, PN15134.
[905] HSU submissions dated 1 April 2021 at [49].
[906] Joint Employers submissions dated 4 March 2022 at [19.35].
[907] Joint Employers submissions dated 4 March 2022 at [19.18].
[908] Joint Employers submissions dated 4 March 2022 at [19.19].
[909] Joint Employers closing submissions dated 22 July 2022 at [4.47].
[910] Joint Employers closing submissions in reply dated 19 August 2022 at [5.20]
[911] Joint Employers closing submissions in reply dated 19 August 2022 at [5.21]–[5.22].
[912] Joint Employers closing submissions in reply dated 19 August 2022 at [5.23].
[913] Transcript, 1 September 2022, PN15556–PN15557.
[914] Joint Employers closing submissions dated 22 July 2022 at [4.48].
[915] Joint Employers closing submissions in reply dated 19 August 2022 at [5.26].
[916] Transcript, 1 September 2022, PN15561.
[917] Joint Employers closing submissions dated 22 July 2022 at [20.4].
[918] Joint Employers closing submissions dated 22 July 2022 at [20.5].
[919] Joint Employers closing submissions dated 22 July 2022 at [9.23].
[920] Joint Employers closing submissions dated 22 July 2022 at [9.24]–[9.25].
[921] Joint Employers closing submissions dated 22 July 2022 at [9.8].
[922] Transcript, 1 September 2022, PN15670.
[923] Joint Employers closing submissions dated 22 July 2022 at [22.9].
[924] Transcript, 1 September 2022, PN15689.
[925] Transcript, 1 September 2022, PN15697.
[926] Transcript, 1 September 2022, PN15702.
[927] Transcript, 1 September 2022, PN15701.
[928] Transcript, 1 September 2022, PN15703–PN15705.
[929] Transcript, 1 September 2022, PN15706.
[930] Transcript, 1 September 2022, PN15746.
[931] Transcript, 1 September 2022, PN15750.
[932] Transcript, 1 September 2022, PN15748.
[933] Joint Employers submission in reply dated 17 August 2022 at [5.8]–[5.9].
[934] Commonwealth submissions dated 8 August 2022 at [5], [165], [200]–[201].
[935] Joint Employers submissions in reply to the Commonwealth dated 17 August 2022 at [3.13]–[3.14].
[936] Joint Employers submissions in reply to the Commonwealth dated 17 August 2022 at [3.15].
[937] Background Document 7 at 38.
[938] Commonwealth submission – response to questions from the Full Bench dated 29 August 2022 at [13]–[17].
[939] Transcript, 1 September 2022, PN15802.
[940] [2019] FWCFB 6067.
[941] Ai Group written submission of 8 April 2019 at [162].
[942] Ai Group written submission of 8 April 2019 at [163].
[943] SCHADS 2019 Decision at [136]–[137].
[944] Transcript, 1 September 2022, PN15426–PN15436.
[945] Transcript, 1 September 2022, PN15865.
[946] See FW Act ss.598(1) and (4) and Maugham Thiem Auto Sales Ltd v Cooper [2013] FCAFC 145 at [26] (Katzmann J, with whom Greenwood and Besanko JJ agreed)
[948] Re Australian Bank Employees Unions Ex parte Citicorp Australia Ltd [1989] HCA 41; (1989) 167 CLR 513 at 519; Re Australian railways Union; Ex parte Public Transport Corporation [1993] HCA 28; (1993) 117 ALR 17 at [23].
[949] Transcript, 1 September 2022, PN15697.
[950] See generally Meagher Supplementary Report.
[951] Joint Employers closing submissions dated 22 July 2022 at [21.4].
[952] Transcript, 1 September 2022, PN15675.
[953] Joint Employers closing submissions dated 22 July 2022 at [4.38].
[954] Joint Employers closing submissions dated 22 July 2022 at [10.5]–[10.6].
[955] ACT Child Care Decision at [155].
[956] Joint Employers closing submissions dated 22 July 2022 Annexure O at [3.10].
[957] ANMF submissions dated 21 April 2022 at [58]. We note that this table does not include all of the relevant rates in the Nurses Award.
[958] ANMF submissions dated 21 April 2022 at [59].
[959] ANMF closing submissions in reply dated 17 August 2022 at [131], [145]–[146].
[960] Transcript, 24 August 2022, PN14840.
[961] Transcript, 24 August 2022, PN14644–PN14645.
[962] Commonwealth submissions dated 8 August 2022 at [150]–[152].
[963] Transcript, 24 August 2022, PN14472.
[964] Transcript, 1 September 2022, PN15543–PN15546, PN15553.
[965] Lay Witness Evidence Report at [3].
[966] Joint Employers closing submissions dated 22 July 2022 at Section 5.
[967] [2020] FWCFB 4961.
[968] Joint Employers closing submissions dated 22 July 2022 at [5.17].
[969] Joint Employer closing submissions dated 22 July 2022 at [5.23].
[970] Commonwealth submissions dated 8 August 2022 at [5].
[971] Section 165 deals with when variation determinations (other than those setting, varying or revoking modern award minimum wages) come into operation, and s.167 sets out special rules relating to retrospective variations of awards.
[972] [2022] FWCFB 4.
[973] [2021] FWCFB 6021.
[974] [2022] FWCFB 4.
[975] [2021] FWCFB 6021.
[976] Penalty Rates – Transitional Arrangements decision [2017] FWCFB 3001 (5 June 2017, Justice Ross, President, Catanzariti VP, Asbury DP, Hampton C, Lee C). This extract was cited with approval in Application to vary the General Retail Industry Award 2010 [2020] FWCFB 3427 (1 July 2020, Justice Ross, President, Catanzariti VP and Asbury DP) at [7].
[977] [2019] FWCFB 7094.
[978] [2019] FWCFB 7096.
[979] 4 yearly review of modern awards – General Retail Industry Award 2010 – award specific penalty rates claims [2018] FWCFB 5897 at [263].
[980] ANMF submissions in reply dated 21 April 2022 at [71].
[981] See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) [2012] FCA 480; (2012) 205 FCR 227; and 4 yearly review of modern awards - plain language re-drafting - standard clauses [2018] FWCFB 4177 at [12].
[982] ANMF closing submissions in reply dated 17 August 2022 at [57]–[60], also see section C.3.1 of that submission.
[983] Transcript, 24 August 2022, PN14739–PN14771.
[984] Transcript, 24 August 2022, PN14760 and PN14767.
[985] Joint Employers closing submissions dated 22 July 2022 at [23.9].
[986] See Witness statement of Sheree Clarke dated 29 October 2021 at [14]-[16]; Amended witness statement of Carol Austen dated 20 May March 2022 at [39]; Witness statement of Charlene Glass dated 29 March 2021 at [92]; Witness statement of Sandra O’Donnell dated 25 March 2021 at [107]-[112]; Witness statement of Tracey Roberts dated 23 March 2021 at [162]-[166]; Amended witness statement of Michael Purdon dated 19 May 2022 at [87]-[92]; Witness statement of Suzanne Wagner dated 28 October 2021 at [160]-[161], Witness statement of Julie Kupke dated 28 October 2021 at [127]-[128], Witness statement of Catherine Evans dated 26 October 2021 at [104]-[105]. Also see Australian Aged Care Collaboration, Cost Of Living Pressure Pushing Aged Care Workers To The Brink Of Poverty Line, Fuelling Workforce Shortage: New Analysis 22 March 2022; HSU closing submissions dated 22 July 2022 at [400].
[987] Witness statement of Kevin Crank dated 29 October 2021 at [11]–[21].
[988] Witness statement of Paul Gilbert dated 29 October 2021 at [36]–[51].
[989] Witness statement of Robert Bonner dated 29 October 2021 at [36]–[38].
[990] Transcript, 26 April 2022, PN928.
[991] Transcript, 12 May 2022, PN13559–PN13565.
[992] ANMF closing submissions dated 22 July 2022 at [857].
[993] Witness statement of Christine Spangler dated 29 October 2021 at [42]; Witness statement of Kevin Crank dated 29 October 2021 at [14].
[994] Witness statement of Jocelyn Hofman dated 29 October 2021 at [47]–[49]; see also witness statement of Linda Hardman dated 20 October 2021 at [82]; Witness statement of Wendy Knights dated 29 October 2021 at [98]–[99]; Witness statement of Dianne Power dated 29 October 2021 at [100]–[103]; Witness statement of Patricia McLean dated 29 October 2021 at [125].
[995] Amended witness statement of Linda Hardman dated 9 May 2022 [82]; Amended witness statement of Wendy Knights, dated 23 May 2022, [98]–[99]; see also the XXN of Christopher Friend, Transcript, 26 April 2022, PN923-PN928, and the XXN of James Eddington, Transcript, 3 May 2022, PN3513-PN3514.
[996] ANMF Form F46 Application to vary a modern award (AM2021/63) dated 17 May 2021 at [27].
[997] HSU closing submissions dated 22 July 2022 at [405] citing Charlesworth Report at [39].
[998] HSU closing submissions dated 22 July 2022 at [406] citing Charlesworth Supplementary Report at [48], [58].
[999] HSU closing submissions dated 22 July 2022 at [407] citing amended witness statement of Christopher Friend dated 20 May 2022 at [22].
[1000] HSU closing submissions dated 22 July 2022 at [409].
[1001] HSU closing submissions dated 22 July 2022 at [411].
[1002] HSU closing submissions dated 22 July 2022 at [412] citing amended witness statement of Christopher Friend dated 20 May 2022 at [18].
[1003] Joint Employers submissions in reply to the Commonwealth dated 17 August 2022 at [3.4].
[1004] Joint Employers submissions dated 22 July 2022 at [23.11]–[23.12].
[1005] Joint Employers closing submissions dated 22 July 2022 at [23.15].
[1006] Commonwealth submissions dated 8 August 2022 at [170].
[1007]Commonwealth submissions dated 8 August 2022 at [171]–[172] citing Charlesworth Report at [39]; UWU submissions dated 29 October 2021 at 12.
[1008] Commonwealth submissions dated 8 August 2022 at [167].
[1009] Transcript, 1 September 2022 at PN15503.
[1010] [2016] FWCFB 3500 at [540].
[1011] Penalty Rates Decision at [179].
[1012] 4 yearly review of modern awards - Family and domestic violence leave [2018] FWCFB 1691 at [282].
[1013] Annual Wage Review 2015–2016 [2016] FWCFB 3500 at [467].
[1014] Commonwealth submissions dated 8 August 2022 at [175].
[1015] Commonwealth submissions dated 8 August 2022 at [176].
[1016] Commonwealth submissions dated 8 August 2022 at [179].
[1017] Commonwealth submissions dated 8 August 2022 at [179] citing ABS, Characteristics of Employment, Australia, August 2021 (Catalogue No 6333.0, 14 Dec 2021).
[1018] Commonwealth submissions dated 8 August 2022 at [180] citing ABS, Participation, Job Search and Mobility, Australia (Catalogue No 6226.0, 25 June 2022).
[1019] Commonwealth submissions dated 8 August 2022 at [181] citing ABS, Labour Force, Australia, Detailed May 2022 (Catalogue No 6291.0, 23 June 2022).
[1020] Commonwealth submissions dated 8 August 2022 at [181].
[1021] Joint Employers submissions in reply submissions to the Commonwealth dated 17 August 2022 at [6.5].
[1022] Commonwealth submissions dated 8 August 2022 at [178], see Tables B2, B4, B8 and B11 of Annexure B.
[1023] Commonwealth submissions dated 8 August 2022 at [178], see Tables B2, B4, B8 and B11 of Annexure B.
[1024] Commonwealth submissions dated 8 August 2022 at [187].
[1025] [2015] FWCFB 8200.
[1026] Commonwealth submissions dated 8 August 2022 at [188].
[1027] Commonwealth submissions dated 8 August 2022 at [189].
[1028] Commonwealth submissions dated 8 August 2022 at [190]–[191].
[1029] Commonwealth submissions dated 8 August 2022 at [190] and [195]–[196]; see also Transcript, 1 September 2022, PN15419.
[1030] Commonwealth submissions dated 8 August 2022 at [192].
[1031] Commonwealth submissions dated 8 August 2022 at [199].
[1032] ANMF submissions dated 29 October 2021 at [200(4)]; ANMF closing submissions dated 22 July 2022 at [832(4)].
[1033] ANMF closing submissions in reply dated 17 August 2022 at [160].
[1034] Joint Employers closing submissions dated 22 July 2022 at [23.19] and [24.5].
[1035] See also Penalty Rates Decision at [207].
[1036] Annual Wage Review 2017–18 [2017] FWCFB 3500 at [33]–[38].
[1037] [2022] FWCFB 3500.
[1038] Compared to s.302, which does not rely on the expression of any such ‘principle’. In s.302, ‘equal remuneration for men and women workers for work of equal or comparable value’ is used in the context of the statutory precondition for the exercise of the Commission’s discretion to make an equal remuneration order.
[1039] Equal Remuneration Decision 2015 [2015] FWCFB 8200 at [177].
[1040] Equal Remuneration Decision 2015 [2015] FWCFB 8200 at [17] of the Summary following [367]. See also [178], [183], [210] and [212].
[1041] Annual Wage Review 2017–18 [2017] FWCFB 3500 at [36].
[1042] Joint Employers closing submissions dated 22 July 2022 at [23.20].
[1043] UWU closing submissions in reply dated 19 August 2022 at [18](d).
[1044] Commonwealth submissions dated 8 August 2022 at [205].
[1045] Commonwealth submissions dated 8 August 2022 at [208].
[1046] Commonwealth submissions dated 8 August 2022 at [209].
[1047] [2020] FWCFB 3500 at [205].
[1048] FW Act s.284(1)(b) and s.134(1)(c).
[1049] FW Act s.284(1)(c) and s.134(1)(a).
[1050] FW Act s.284(1)(d) and s.134(1)(e).
[1051] FW Act s.284(1)(a) and ss.134(1)(d), (f) and (h).
[1052] Re Annual Wage Review 2019-20 (2020) 297 IR 1 at [208]; Re IEU[2021] FWCFB 2051 at [221], citing Re Annual Wage Review 2017–18 (2018) 279 IR 215 at [14].
[1053] Re Annual Wage Review 2019-20 (2020) 297 IR 1 at [210].
[1054] Re Annual Wage Review 2019-20 (2020) 297 IR 1 at [208]; Re IEU[2021] FWCFB 2051 at [221], citing Re Annual Wage Review 2017–18 (2018) 279 IR 215 at [17].
[1055] Re Annual Wage Review 2019-20 (2020) 297 IR 1 at [209]; Re IEU[2021] FWCFB 2051 at [221], citing Re Annual Wage Review 2017–18 (2018) 279 IR 215 at [14].
[1056] HSU closing submissions dated 22 July 2022 at [64]; Joint Employers closing submissions dated 22 July 2022 Annexure P at [3.28]; ANMF closing submissions dated 22 July 2022 at [70].
[1057] The Nurses Award 2010 was varied and renamed the Nurses Award 2020 on 9 September 2021 ([2021] FWCFB 4504).
[1058] Printed by authority of the Commonwealth Government Printer
<PR747633>
An updated version of the HSU’s proposed clause 14.1 was included in its closing submissions dated 22 July 2022 to reflect the Annual Wage Review 2020-21 and the Annual Wage Review 2021-22.
[1059] ANMF Application (AM2021/63) dated 17 May 2021 Annexure 1 at [1].
[1060] The proposed schedule does not include the classification Occupational health nurse as set out at cl.A.6 of the Nurses Award.
[1061] ANMF closing submissions dated 22 July 2022 Annexure 2.
[1062] The ANMF’s proposed Schedule B is set out at Annexure C.
[1063] An updated version of the ANMF’s proposed clause 14A was included in its closing submissions dated 22 July 2022 to reflect the Annual Wage Review 2020-21 and the Annual Wage Review 2021-22.
[1064] An updated version of the HSU’s proposed clause 17A was included in its closing submissions dated 22 July 2022 to reflect the Annual Wage Review 2020-21 and the Annual Wage Review 2021-22.
[1065] ANMF submissions dated 29 October 2021 at [5].
[1066] ANMF submissions dated 29 October 2021 at [5].
[1067] ANMF submissions dated 29 October 2021 at [205].
[1068] ANMF submissions dated 29 October 2021 at [209].
[1069] ANMF submissions dated 29 October 2021 at [210].
[1070] ANMF submissions dated 29 October 2021 at [211].
[1071] ANMF submission dated 22 June 2021; HSU submission dated 22 June 2021.
[1072] ANMF Form F48 dated 12 November 2021.
[1073] Consensus Statement dated 17 December 2021 at 1.
[1074] Consensus Statement dated 17 December 2021 at 2.
[1075] Joint Employers correspondence dated 22 December 2021.
[1076] ANMF correspondence dated 23 December 2021.
[1077] HSU correspondence dated 23 December 2021; UWU correspondence dated 23 December 2021.
[1078] Joint Employers submissions dated 4 March 2022 at [3.10].
[1079] Joint Employers submissions dated 4 March 2022 at [3.20]; Joint Employers closing submissions dated 22 July 2022 Annexure P at [3.2].
[1080] Joint Employers submission – objections to evidence dated 21 April 2022; UWU submission – hearing plan and evidence dated 21 April 2022; HSU submissions – hearing plan and objections to evidence dated 22 April 2022; ANMF submissions in reply dated 21 April 2022.
[1081] Transcript, 24 May 2022, PN13990.
[1082] Leigh Svendsen, Kevin Crank, Kristen Wischer, Melissa Coad, Lorri Seifert, Sally Fox, Tracy Roberts, Hazel Bucher, Maree Bernoth, Pauline Breen, Susan Toner and Cheyne Woolsey.
[1083] [2022] FWCFB 89.
[1084] [2022] FWCFB 94.
[1085] [2022] FWCFB 102.
[1086] [2022] FWCFB 102.
[1087] Transcript, 24 August 2022; Transcript, 25 August 2022.
[1088] Transcript, 1 September 2022.
[1089] For example, see the Royal Commission into Aged Care Quality and Safety, Final Report, Summary and Recommendations, page 41.
[1090] ANMF 110 Trends in Medication Use 2016-2021 (fwc.gov.au) at 2 and 8, Reierson F. Trends in Medication Use 2016-2021 September 2021 and M. C. Inacio, C. Lang, S. C. E. Bray, R. Visvanathan, C. Whitehead, E. C. Griffith, K. Evans, M. Corlis, S. Wesselingh. Health status and healthcare trends of individuals accessing Australian aged care programmes over a decade: the Registry of Senior Australians historical cohort. 2 May 2020.
[1092] The 2016 Aged Care Workforce census and survey report undertaken by the National Institute of Labour Studies (NILS) research team shows in 2003 RNs were 21.4% of the direct care workforce; this decreased to 16.8% in 2007, and to 14.7% in 2012, and that it increased to 14.9% in 2016. The latest census and survey, the 2020 Aged Care Workforce Census Report, indicates RNs make up 15.6% of direct care workers.
- AGLC
- Aged Care Award 2010 [2022] FWCFB 200
- Case
- [2022] FWCFB 200
- Decision Date
CaseChat Overview and Summary
The legal issues before the Commission involved determining whether the proposed variations to the awards were justified, taking into account the work value and the impact on employees. The Commission had to assess whether the additional payments for weekend and public holiday work would appropriately recognise the extra demands and inconveniences associated with such work, and whether the variations would be consistent with the principles of the Fair Work Act. The applicants argued that the additional payments were necessary to address undervaluation of weekend and public holiday work, while the respondents contended that the existing awards sufficiently compensated employees for these conditions.
The Fair Work Commission concluded that the applications should be dismissed. The Commission found that the current awards adequately compensated employees for the inconvenience and demands of weekend and public holiday work, and that the proposed variations would not achieve the intended outcome of recognising the additional value of such work. The Commission emphasised that the existing awards provided for a higher rate of pay for these periods, which it deemed sufficient. Furthermore, the Commission noted that the proposed variations could potentially lead to increased costs for employers without a corresponding benefit to employees.
The Fair Work Commission dismissed the applications, maintaining the existing provisions in the Aged Care Award 2010, Nurses Award 2020, and Social, Community, Home Care and Disability Services Industry Award 2010. The decision was grounded in the view that the current awards appropriately compensated employees for weekend and public holiday work, and that introducing additional payments would not achieve the desired recognition of work value.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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