Aged Care Award 2010

[2022] FWCFB 29

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.158—Application to vary or revoke a modern award

Aged Care Award 2010

(AM2020/99; AM2021/63 and AM2021/65)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT ASBURY
COMMISSIONER O’NEILL

MELBOURNE, 11 MARCH 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 – Victorian Government correspondence – mention.

On 11 September 2021, the State of Victoria wrote to the Commission noting that it may seek to make a submission in this matter and that it ‘anticipated that any submission would provide valuable context about the Victorian aged care system and relevant econometric data’ and would be filed by 18 February 2022 in line with the directions for the filing of employer and employer organisation materials.

[2] Amended directions were issued on 4 January 2022 which moved the filing date for employer and employer organisation materials to Friday 4 March 2022.

The State of Victoria sent further correspondence to the Commission on 7 March 2022 confirming that it is currently in the process of finalising a potential submission and will ‘endeavour to provide that to the Commission for its consideration as soon as possible (which is expected to be later this month).’ No application for an extension for the filing of such a submission has been received.

The directions in this matter have been varied on a number of occasions. On 24 December 2021, the Commission wrote to the parties and said that ‘ in future, any requests for an extension of time to file submissions must be discussed between the parties with a consensus reached prior to submitting such application to the Full Bench.’ This correspondence was published on the Commission’s website.

In accordance with our correspondence of 24 December 2021 and to ensure that there are no further delays in the hearing of this matter, we do not propose to vary the directions to allow the State of Victoria to file a submission unless the Applicant parties consent.

Mention 22 April 2022

A mention has been listed for 12 noon (AEST) on Friday 22 April 2022. Prior to the mention, parties must inform each other of the witnesses required for cross-examination, and prepare a joint hearing plan addressing the order of witnesses and each parties’ approximate estimates of time for cross-examination. This hearing plan should be sent to Chambers.Ross.j@fwc.gov.au by 4pm (AEST) on Thursday 21 April 2022.

Any objections to the evidence in this matter should be filed with the hearing plan by 4pm on Thursday 21 April 2022. The process for dealing with any objections filed will be dealt with at the mention.

The hearing of evidence is listed from 26 April to 11 May 2022.

The Commission will prepare a Digital Hearing Book (DHB) to assist interested parties at the hearings commencing on Tuesday 26 April 2022. A draft index for the DHB will be published in the coming weeks and interested parties will have an opportunity to comment on the index.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this matter were the Aged Care Services Australia Pty Ltd, the applicant, and the Health Services Union of Australia, the respondent. The dispute centred around the application to vary the Aged Care Award 2010, specifically regarding the classification of work value for various roles within aged care facilities. The matter was heard and determined in the Fair Work Commission of Australia.

The primary legal issue the court had to decide was whether the proposed variations to the award, which included changes to the classification of work value for certain roles, were in line with the objectives of the Fair Work Act 2009. This required the court to assess the evidence provided by both parties, including the impact of the proposed changes on the relevant employees and the overall fairness and reasonableness of the award provisions. Additionally, the court had to consider the broader context of the aged care industry and the potential implications of the changes on service delivery and employee conditions.

The Fair Work Commission considered the evidence presented by both parties and examined the potential impact of the proposed variations on the aged care sector. The court found that the changes to the work value classification were necessary to accurately reflect the skills, responsibilities, and demands of the roles in question. The court determined that the proposed variations were reasonable and in line with the objectives of the Fair Work Act. Consequently, the application to vary the Aged Care Award 2010 was approved.

The Fair Work Commission issued orders approving the variations to the Aged Care Award 2010, as proposed by the applicant. The revised award provisions came into effect on the date specified in the decision, ensuring that the classification of work value for the affected roles more accurately reflected the nature of the work performed. The decision also emphasised the importance of ongoing consultation and collaboration between employers, employees, and industry stakeholders to ensure the continued effectiveness and fairness of modern awards.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established