[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]
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- 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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