Aged Care Award 2010
[2023] FWCFB 93
•18 MAY 2023
| [2023] FWCFB 93 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
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)
| VICE PRESIDENT ASBURY | BRISBANE, 18 MAY 2023 |
Applications to vary modern awards – work value – Aged Care Award 2010 – Nurses Award 2020 – Social, Community, Home Care and Disability Services Industry Award 2010 – Stage 2 – interim increase – Reasons for Decision.
INDEX
| Chapter | Paragraph |
| 1. Introduction | [1] |
| 2. Background | [6] |
| 2.1 The Stage 1 Decision | [6] |
| 2.2 Stage 2 proceedings | [15] |
| 2.3 Submissions overview | [25] |
| 2.4 The Joint Statement | [32] |
| 3. Scope of the interim increase | [33] |
| 3.1 Submissions | [36] |
| 3.2 Consideration | [69] |
| 4. The Secure Jobs, Better Pay Act | [76] |
| 4.1 Submissions | [93] |
| 4.2 Consideration | [171] |
| 5. Timing and phasing-in of the interim increase | [188] |
| 5.1 Submissions | [188] |
| 5.2 Witness evidence submitted by the Joint Employers | [373] |
| 5.3 Consideration | [405] |
| 6. The modern awards objective | [426] |
| 7. The minimum wages objective | [482] |
| Abbreviations | Page 95 |
Introduction
This case deals with 3 applications to vary modern awards to increase the minimum wages of aged care sector workers:
· AM2020/99 – an application by the Health Services Union (HSU) and a number of individuals to vary the Aged Care Award 2010 (Aged Care Award)
· 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), and
· AM2021/65 – an application by the HSU to vary the Social, Community, Home Care and Disability Services Award 2010 (SCHADS Award) (the Applications).
Throughout this decision the Aged Care Award, Nurses Award and SCHADS Award will be collectively referred to as the Awards.
On 21 February 2023 we issued a decision[1] (the Stage 2 decision) stating that an interim increase of 15 per cent to modern award minimum wages applying to the following employees is necessary to achieve the modern awards objective and the minimum wages objective:
· direct care workers under the Awards and;
· Head Chefs/Cooks under the Aged Care Award (Aged care employee levels 4-7 provided the employee is the most senior chef or cook engaged in a facility); and
· Recreational Activities Officers/Lifestyle Officers under the Aged Care Award.
We determined that the interim increase will take effect from 30 June 2023.
What follows are our reasons for that decision.
Background
2.1 The Stage 1 Decision
On 4 November 2022, a previously constituted Full Bench published a Decision (the Stage 1 decision) in these matters.[2]
The Full Bench concluded that the evidence established that the existing minimum wage rates in the Awards do not properly compensate direct care workers, in either residential or in-home aged care settings, for the value of the work performed.[3] These workers, termed ‘direct aged care workers’, included personal care workers under the Aged Care Award (PCWs), home care workers who work in aged care under the SCHADS Award (HCWs), and Registered Nurses (RNs), Enrolled Nurses (ENs), Assistants in Nursing (AINs) and Nurse Practitioners who work in aged care under the Nurses Award.
The Full Bench considered that the proceedings had raised a number of complex issues for determination which required close examination and would benefit from further submissions and, potentially, further evidence, from the parties.[4] The Full Bench concluded that the following 3 broad considerations weighed in favour of an interim decision providing an increase in minimum wages for discrete categories of aged care workers and stated as follows:
“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.”[5]
The Full Bench was satisfied that the interim increase should apply to PCWs and HCWs at all levels at and below the Certificate III level, along with RNs, ENs, AINs and Nurse Practitioners working in aged care.[6]
The Full Bench did not propose to provide an interim increase for Head Chefs/Cooks and directed the parties to confer in respect of this issue. The Full Bench advised that, should the parties be able to agree upon the quantum of an interim increase and the classification(s) to which it would apply, the Full Bench would give further consideration to determining an interim increase for these employees during the next stage of proceedings. Absent agreement between the parties, the Full Bench indicated that any increase applicable to Head Chefs/Cooks would be dealt with in a later stage of the proceedings.[7]
Further, the Full Bench did not propose to provide an interim increase in the minimum wages of Recreational Activities Officers/Lifestyle Officers (RAOs) and stated that the extent of agreement between the parties about whether work value considerations justify an increase for these workers required further clarification. Parties were directed to confer in respect of this issue and the Full Bench indicated that should the parties be able to agree on the quantum of an interim increase and the classification(s) to which it would apply, the Full Bench would give further consideration to determining an interim increase for RAOs in the next stage of the proceedings. As in the issue of Head Chefs/Cooks, absent agreement between the parties, any increase applicable to RAOs would be dealt with in a later stage of the proceedings.[8]
The Full Bench concluded that an interim increase of 15 per cent to modern award minimum wages applying to direct aged care workers was ‘plainly justified by work value reasons’.[9] The Full Bench clarified that the interim increase did not conclude its consideration of the Unions’ claim for a 25 per cent increase for other employees, namely administrative and support aged care employees, nor did it necessarily exhaust the extent of the increase justified by work value reasons in respect of direct care workers.[10]
The Full Bench concluded that the Applications would be determined in 3 stages, with the Stage 1 decision constituting the first stage in the process. Stage 2 would consider submissions and evidence in relation to:
1.The timing and phasing of the interim increase to modern award minimum wages applicable to direct care workers, including the appropriateness and application of the principles canvassed at paragraphs [974]–[990] in the Stage 1 decision;
2.Whether making the interim increases to modern award minimum wages applicable to direct care aged care employees in these proceedings is necessary to achieve the modern awards objective and the provisional views outlined at [1001]–[1072] in the Stage 1 decision; and
3.Whether the interim increases to modern award minimum wages applicable to direct care aged care employees are necessary to achieve the minimum wages objective and the provisional views outlined at [1073]–[1083] in the Stage 1 decision.[11]
Stage 3 will consider submissions and evidence related to the classification definitions and structures in the Awards and submissions and evidence in relation to whether wage adjustments are justified by work value reasons for employees not dealt with in Stage 1. Stage 3 will also consider whether further wage adjustments are justified by work value reasons for direct care workers granted interim increases in Stages 1 and 2.
2.2 Stage 2 proceedings
On 7 November 2022, Justice Ross, President wrote to the Governor General resigning as President of the Fair Work Commission and as a Judge of the Federal Court, effective midnight 18 November 2022. Justice Ross was the presiding member of these proceedings and as a result the Full Bench was reconstituted.
On 17 November 2022, we issued a Statement in which we expressed a provisional view as to the programming of Stage 2 and invited parties to provide comments at a mention held on 22 November 2022.[12] Following that mention the directions for Stage 2 were amended in terms of the dates by which submissions and evidence were to be filed.[13]
On 6 December 2022 the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Secure Jobs, Better Pay Act) received Royal Assent. A number of the amendments to the Fair Work Act 2009 (FW Act) made by the Secure Jobs, Better Pay Act are relevant to these proceedings including:
1.Amendments to the object of the FW Act in s.3(a) to include reference to the promotion of job security and gender equality[14]
2.Amendment to s.134(1) to repeal s.134(1)(e) of the modern awards objective and replace it with new s.134(1)(ab): the need to achieve gender equality in the workplace by ensuring equal remuneration for work of equal or comparable value, eliminating gender-based undervaluation of work and providing workplace conditions that facilitate women’s full economic participation[15]
3.Amendment to s.134(1) to introduce new s.134(1)(aa): the need to improve access to secure work across the economy[16]
4.Amendment to s.284(1) to repeal s.284(1)(d) of the minimum wages objective and replace it with new s.284(1)(aa): the need to achieve gender equality, including by ensuring equal remuneration for work of equal or comparable value, eliminating gender-based undervaluation of work and addressing gender pay gaps[17]
5.Amendment to s.157 to insert new subsection 157(2B) which provides that the Commission’s consideration of work value reasons must be free of assumptions based on gender and must include consideration of whether historically the work being assessed has been undervalued because of such assumptions.[18]
On 5 December 2022, the ANMF wrote to the Commission and applied to vary the Directions to provide that the Commonwealth, the Unions and the Joint Employers make submissions and provide evidence in respect of the relevant amendments to the FW Act.
On 6 December 2022, we issued Amended directions requiring parties to file submissions or evidence regarding the relevant amendments to the FW Act, Stage 2 matters set out at paragraph [13] above and, if relevant, consultation in respect of increases to minimum wages for Head Chefs/Cooks and Recreational Activities Officers/Lifestyle Officers by 16 December 2022 or 20 January 2023. All parties were required to file submissions and evidence in reply by 9 February 2023 and the matter was listed for hearing in Melbourne at 10:00am on Monday, 13 February 2023.
On 10 February 2023 we issued a Statement and Directions[19] in which, to facilitate the efficient conduct of the Hearing, we requested parties to address various questions.
At the outset of the Hearing before us on 13 February 2023, the Joint Employers advised formally that, due to the merger of bodies LASA and ACSA, the Joint Employers are now comprised of the Aged and Community Care Providers Association Ltd (ACCPA) and Australian Business Industrial (ABI).[20]
During the Hearing, the Joint Employers and the HSU were granted leave to provide written responses to a number of the questions we posed, as well as address a further question raised in relation to Home care employees engaged in domestic assistance and home maintenance.[21] The parties were also granted leave to file written submissions as to the weight that should be accorded to evidence filed by the Joint Employers on 9 February 2023. The parties were asked to file the additional material by no later than Friday, 17 February 2023.
On 21 February 2023, we published our Stage 2 decision together with draft determinations and tracked versions of each of the Awards to illustrate the proposed changes. Interested parties were directed to file any comments in relation to the draft determinations by no later than Wednesday, 1 March 2023.
Final determinations effecting the interim increase to modern award minimum wages in line with the Stage 2 decision were issued on Friday, 3 March 2023.[22]
2.3 Submissions overview
This section sets out the written submissions received in Stage 2.
In November 2022, the Commonwealth convened meetings of industry stakeholders representing the aged care workforce, aged care providers and consumers. Arising from these meetings, on 16 December 2022, a Joint Statement was received from the following stakeholders:
· ACCPA
· Anglicare Australia
· ANMF
· Baptist Care Australia
· Catholic Health Australia
· Council of the Aged
· HSU
· Older Persons Advocacy Network
· Australian Workers’ Union (AWU) Queensland Branch
· UnitingCare Australia
· UWU
The Commonwealth made a submission on 16 December 2022.
On 20 January 2023, submissions were received from the following parties:
· UWU
· AWU
· Joint Employers
· ANMF
· HSU (including a second supplementary report by Prof Kathleen Eagar)
On 9 February 2023 (or, in the case of the Commonwealth, 10 February 2023), the following parties made submissions in reply:
· HSU
· Joint Employers
· ANMF
· The Commonwealth
On 9 February 2023 the UWU also filed as submissions over one thousand messages from aged care workers addressed to the Fair Work Commission in support of an immediate increase to their wages.
Following the Hearing on 13 February 2023, the following further submissions were received:
· on 15 February 2023, the Joint Employers made a submission in response to questions by the Full Bench;
· on 16 and 17 of February 2023, the ANMF, the Joint Employers and the HSU made a submissions as to the weight to be given to the Joint Employers’ reply evidence; and
· on 17 February 2023 the Joint Employers provided a note on the Home care employee evidence.
2.4 The Joint Statement
Parties to the Joint Statement reached agreement on 6 matters in relation to the interim increase,[23]summarised as follows:
1. The interim increase should be fully funded by the Commonwealth, including on costs, and the increase should extend to both award-reliant employees and those covered by enterprise agreements.
2. The interim increase should commence operation as soon as possible, should not be phased in over time and should instead occur from the first full pay period on or after a single specific date. Funding from the Commonwealth should be provided in full as soon as possible. ACCPA, Anglicare Australia, Baptist Care Australia, Catholic Health Australia and UnitingCare Australia maintain that the funding must be provided to aged care employers by the Commonwealth on and from the operative date of any increase.
3. RAOs and Head Chefs/Cooks (the latter being Aged care employees levels 4 to 7 in the food services stream of the Aged Care Award) should receive a 15 per cent interim increase at the same time as direct care workers.
4. Measures to ensure transparency and accountability with respect to payment of the interim increase and any future payments should be put in place within 3 months of the first payment. Implementation of transparency measures should not delay payment of funding for interim increases to direct care workers, RAOs and Head Chefs/Cooks.
5. Stage 3 of the proceedings should commence as soon as possible at the Commission’s earliest convenience.
6. The interim increase be implemented based on the principle that services to older Australians are not to be negatively impacted as a result of the increase in costs. The Commonwealth should explore all options to operationalise the funding of the increase in order to fulfil this principle.
Scope of the interim increase
This section summarises the submissions of the parties in respect of which classifications in the Awards should be subject to the interim increase to minimum wages. This includes whether the interim increase should apply to Head Chefs/Cooks and RAOs in the Aged Care Award and Home care employees levels 4 and 5 in the SCHADS Award.
Included in this section are responses to the questions posed to all parties in our Statement and Directions[24] of 10 February 2023 that relate to the scope of the interim increase, being the following:
3.Whether the interim increase should be applied to all employees in Schedule E of the SCHADS Award, or whether it should exclude Home Care Employee Level 4 and/or Level 5, noting the implications for internal relativities in the Award if increases are not applied to supervisory workers who are not providing direct care.
4.In relation to the interim increase for ‘Head Chef/Cooks’ how are the positions eligible for the increase identified within the Aged Care Award given the range of classification levels applicable to the roles?
The Commonwealth and the Joint Employers were also requested to address the following question:
5.Noting the Joint Employers submission that the interim increase for head chefs/cooks and RAOs/lifestyle officers is supported ‘on the basis that the increase is to be funded by the Commonwealth’, has the Commonwealth agreed to fund the increase in relation to these employees?
3.1 Submissions
Commonwealth submissions
The Commonwealth submitted that further consideration should be given to ‘clearly defining the scope of who is a ‘direct care worker’ and noted that the Stage 1 decision defined ‘direct care worker’ as ‘employees in the aged care sector covered by the Awards in caring roles, including nurse practitioners, RNs, ENs, AINs, PCWs and HCWs.’[25]
The Commonwealth submitted that in order to provide certainty to employers and employees and support any required accountability measures, the final variations to the Awards will require a more precise definition of which employees will receive the interim increase. The Commonwealth maintained this was particularly important in the home care sector under Schedule E of the SCHADS Award as there is ‘less of a clear delineation of caring and non-caring work than in the Aged Care Award’.[26]
Commonwealth submissions in response to questions 3, 4 and 5
The Commonwealth addressed questions 3, 4 and 5 of our Statement and Directions[27] of 10 February 2023 in its oral submissions during the hearing of 13 February 2023.
In relation to questions 3 and 4, the Commonwealth made no submissions on either issue, stating only that it is open to the Commission to determine whether the interim increase should apply to Home care employees levels 4 and 5 under the SCHADS Award and the issue in respect of Head Chefs/Cooks.[28]
In response to question 5, the Commonwealth referred to its position as stated in its reply submissions, confirming that its funding commitment extends to any decision of the Commission regarding funding increases for Head Chefs/Cooks and RAOs.[29]
HSU submissions
The HSU reiterated the position from the Joint Statement that the interim increase of 15 per cent applicable to direct care workers should additionally be applied to the classifications of ‘head chefs and head cooks’ (being employees in the food services stream of the Aged Care Award at Aged care employee level 4 to level 7) and RAOs (to the extent that RAOs were not already entitled to any increase by virtue of being paid and/or classified as a ‘direct care worker’).[30]
In response to the Commonwealth’s submissions of 16 December 2022 that further consideration was required regarding whether employees working in the home care sector, as defined in the SCHADS Award, fall within the scope of ‘direct care worker’, the HSU submitted that the Stage 1 decision is clear and that such employees are direct care workers. Accordingly, the HSU submitted that the proposed interim increase would apply to all classifications of Home care employee from levels 1 to 5 under the SCHADS Award.
HSU submissions in response to questions 3 and 4
The HSU provided written responses to questions 3 and 4 posed in our Statement and Directions issued on 10 February 2023.
In relation to question 3, the HSU submitted that the interim increase should apply to all levels of Home care employee in Schedule E from level 1 to level 5. The HSU submitted this is consistent with the Joint Statement regarding Stage 2 and 3 of the proceedings.[31]
The HSU submitted that employees engaged at level 4 and level 5 are involved in direct care work by way of mentoring, supervising and providing advice in relation to direct care work, and dealing with incidents or emergencies in relation to direct care work.[32]
The HSU submitted that applying the increase at level 1 to level 3 but not at level 4 and level 5 would disrupt the relativities in the classification scale in Schedule E of the SCHADS Award. It would have the effect of employees at level 2 and level 3 receiving higher rates of pay than all level 3 employees and level 3.2 would receive higher rate of pay than level 5 employees. The HSU submitted that the relativities should be maintained as those rates have been previously set on the basis of comparable work value between the different roles.[33]
In relation to question 4, the HSU noted that in previous submissions[34] and in the Joint Statement[35] the Joint Employers indicated their support that the interim increase should apply to Head Chefs/Cooks. In their submission dated 15 February 2023, the Joint Employers submitted that the increase should apply to employees from level 4 to level 7 but qualified that their perspective was the increase would apply to ‘the most senior chef/cook in the facility with ultimate menu and nutrition responsibility, not a series of chefs or cooks within the catering team’.[36]
The HSU submitted this was a departure from the position settled in the Joint Statement.[37] The position agreed by relevant stakeholders, pursuant to the request of the Full Bench in the Stage 1 decision,[38] should be given effect by the Full Bench.[39]
The HSU submitted that the evidence does not suggest that there are facilities at which multiple chefs/cooks are employed at level 4 or above under the Aged Care Award. Accordingly, there is not an evidentiary basis for not extending the interim increase to all food service stream employees from level 4 to level 7.[40]
The HSU submitted that the proposal that the classification structure in the Aged Care Award be reviewed in order to separate out the ‘most senior’ chef/cook at a facility is likely to cause uncertainty, confusion and delay. If the interim increase were to be limited to the ‘most senior’ chef/cook at a facility, there is no utility in limiting the increase to levels 4 to 7. Instead, determining the interim increase to apply to all employees in the food services stream from level 4 to level 7 is easier for employers to implement and for employees to understand.[41]
The HSU noted that during the hearing on 13 February 2023, a further question was raised in relation to the application of the interim increase to Home care employees where those employees are engaged in domestic work. The question posed was as follows:
“It’s also on the Schedule E question. There's two other dimensions which one is that the home care sector isn't confined to the provision of personal care, but also domestic assistance and home maintenance. Given that the interim increase is only in respect of personal care, any determination, I presume, would have to separate out that part of home care from the balance.”[42]
In response to this question, the HSU submitted that delineating between personal care, domestic assistance and maintenance services within a home care setting is inappropriate and would be impossible based on the evidence before the Full Bench. The HSU noted there is substantial evidence to suggest HCWs perform a mixture of personal care work and other duties.[43] Home care duties that are domestic or social are not divorced from the direct provision of care.[44]
ANMF submissions
The ANMF agreed with and endorsed the position of the Joint Statement, to which it is a party, that RAOs and Head Chefs/Cooks (the latter being employees in the food services stream of the Aged Care Award at Aged care employee level 4 to 7) should also have a 15 per cent interim increase applied to their pay rates at the same time as direct aged care workers.[45] Accordingly, they submitted the Full Bench should give consideration to determining the increase for RAOs and Head Chefs/Cooks in Stage 2.[46]
In response to the Joint Employers’ position consenting to the interim increase for Head Chefs/Cooks and RAOs on the basis it is funded by the Commonwealth,[47]insofar as this suggests that to the extent it is unfunded it is not consented to, the ANMF submitted that this is inconsistent with the position taken by the Joint Employers in the Joint Statement.[48] The ANMF submitted that the Joint Employers should be held to this position and in any case the increase is justified by work value reasons.[49]
ANMF submissions in response to questions 3 and 4
The ANMF submitted that questions 3 and 4 concern matters outside of the scope of its application.[50]
UWU submissions
The UWU reiterated the view of the Joint Statement of 16 December 2022[51] that RAOs and Head Chefs/Cooks should also have the 15 per cent interim increase applied to their pay rates at the same time as direct care workers.[52]
Given parties have agreed, the UWU submitted that the decision regarding Head Chefs/Cooks and RAOs should be dealt with prior to Stage 3.[53] The UWU submitted that this would be consistent with the modern awards and minimum wages objective.[54]
UWU submissions in response to questions 3 and 4
In relation to question 3, the UWU endorsed the submissions of the HSU and AMNF, and added that it makes little sense for the interim increase not to apply to Home care employees levels 4 and 5 and that doing so would not have a significant impact on funding.[55]
In relation to question 4, the UWU again endorsed the submissions of the HSU and ANMF and submitted that the interim increase should be applied to levels 4 to 7 of the Aged Care Award.[56]
Joint Employer submissions
The Joint Employers reiterated their support of applying the interim increase to Head Chefs/Cooks and RAOs provided the increase is funded by the Commonwealth, noting RAOs ‘are a very small cohort of the employee base’ and ‘are firmly aligned to direct care employees in how they work directly with consumers.’[57]
Joint Employer submissions in response to questions 3, 4 and 5
On 15 February 2023, the Joint Employers provided a written response to questions 3, 4 and 5 posed by the Full Bench.
In respect of question 3, the Joint Employers submitted the interim increase should apply to all employees in Schedule E of the SCHADS Award. This prevents an anomaly where levels 2 and 3 will have a wage rate higher than level 4 pay point 1 and level 3 pay point 2 will have a wage rate higher than level 5 pay point 1. The Joint Employers submitted that applying the increase to all the employees ensures a fair and relevant minimum safety net of terms and conditions and that the Full Bench should return to the question of appropriateness of existing classification structure in Stage 3.[58]
In respect of question 4, the Joint Employers consented to the interim increase extending to Head Chefs/Cooks under the Aged Care Award provided it will be funded by the Commonwealth.[59] The Joint Employers submitted that the increase should apply from Senior cook (trade) (level 4) through to Chef/Food services supervisor (level 7). This implementation will require the classification structure of the Aged Care Award to be reviewed. From the perspective of the Joint Employers, the increase was to apply to the most senior chef/cook in the facility with responsibility for the menu and nutrition, not a series of chefs or cooks within a catering team.[60]
In respect of question 5, the Joint Employers submitted that the Commonwealth have confirmed funding to award the interim increase to Head Chefs/Cooks and RAOs. [61]
Joint Employer note on Home care employee evidence
In their submissions on 17 February 2023, the Joint Employers noted that the Full Bench has before it the evidence of 21 Home care employees, excluding team leaders and coordinators.[62] The Joint Employers referred to analysis of this evidence that they undertook during Stage 1 of these proceedings, which outlined the primary duties of each worker.[63]
The primary duties fell into the categories of personal or direct care work, domestic care work, social support and medication prompts.[64]
The Joint Employers observed that:
· 15 of the Home care employees provide personal care, with the majority also providing additional services.[65]
· 6 of the Home care employees exclusively provide domestic assistance and/or social support.[66]
· Some of the Home care employees that did not provide personal care, received training to provide a medication prompt.[67]
The Joint Employers submitted that further consideration may be required in Stage 3 as to whether Home care employees that do not provide personal care should have separate classifications.[68]
3.2 Consideration
In the Stage 1 decision the Full Bench said that they did not propose to provide an interim increase to RAOs at this time but directed the parties to confer as to the issue and, if they could agree on the increase and to the classifications to which it should apply, we would give the matter further consideration. If agreement could not be reached the Full Bench said they would determine the issue in Stage 3.
In the Joint Statement the stakeholders agreed that the interim increase should be applied the classifications of RAOs at the same time as the interim increase for direct care workers. We accept that this is a ‘small cohort’ of employees and that the work performed by them is aligned to the work of direct care workers.
We are satisfied that the increase is justified on work value grounds. We emphasise that our decision with respect to these employees is not based on a commitment or otherwise with respect to funding the increase.
In the Stage 1 decision, the Full Bench said, with respect to Head Chefs/Cooks:
“we note the submission by the Joint Employers that an increase in minimum wages for Head Chefs/Cooks is justified by work value reasons. We do not propose to provide an interim increase in respect of this classification, at this time. The parties are directed to confer in respect of this issue and if they are able to agree upon the quantum of an interim increase and the classification(s) to which it applies, we will give further consideration to determining an interim increase for these employees.”[69]
In the Joint Statement there was no dissent that ‘head chefs and head cooks’ should have the full 15 per cent interim increase applied to their pay rates at the same time as direct aged care workers.
We are satisfied that the interim increase should apply to Head Chefs/Cooks in levels 4 to 7 or as Food services supervisors engaged at level 7, but only to the extent that the individual employee is the most senior food services employee engaged in the facility. To be clear we do not make this decision based on any submissions as to funding or otherwise of the interim increase but rather we are satisfied that the increase for Head Chefs/Cooks is justified on work value grounds.
We are satisfied that the interim increase should apply to all employees in Schedule E of the SCHADS Award. We accept that employees at Home care employee level 4 and/or level 5 are direct care workers, regardless of the level of supervisory responsibility they may hold. Further, to not provide the increase to such employees would create anomalies in the classification structure whereby employees at level 2 and level 3 would be paid more than those at level 4 and/or level 5.
The Secure Jobs, Better Pay Act
This section concerns amendments to the FW Act arising from the Secure Jobs, Better Pay Act relevant to Stage 2 of these proceedings, namely:
· Amendments to the object of the FW Act to include reference to the promotion of job security and gender equality (s.3)
· Amendments to the modern awards objective to include secure work and gender equality considerations, including ensuring equal remuneration for work of equal or comparable value, eliminating gender-based undervaluation of work and providing workplace conditions that facilitate women’s full economic participation, (ss.134(1)(aa), (ab))
· Amendments to the minimum wages objective to include gender equality considerations including ensuring equal remuneration for work of equal or comparable value, eliminating gender-based undervaluation of work and addressing gender pay gaps (s.284(1)(aa))
· The addition of a provision specifying that the Commission’s consideration of work value must be free of assumptions based on gender and include consideration of whether historically the work has been undervalued because of assumptions based on gender (s.157(2B)).
The Secure Jobs, Better Pay Act amended the modern awards objective to include 2 new considerations, ss.134(1)(aa) and 134(1)(ab) referring to improving access to secure work and to the need to achieve gender equality in the workplace by ensuring equal remuneration for work of equal or comparable value, eliminating gender-based undervaluation of work and providing workplace conditions that facilitate women’s full economic participation.
Sections 134(1)(e) and 284(1)(d) of the modern awards objective and minimum wages objective respectively, were repealed.
In the Stage 1 decision the Full Bench made the following observations about gender undervaluation in the context of ss.134(1)(e) and 284(1)(d):
“we accept that the aged care workforce is predominantly female and the expert evidence is that, as a general proposition, work in feminised industries including care work has historically been undervalued and the reason for that undervaluation is likely to be gender-based. We also accept the logic of the proposition in the expert evidence that gender-based undervaluation of work is a driver of the gender pay gap and if all work was properly valued there would likely be a reduction in the gender pay gap. While it has not been necessary for the purposes of these proceedings for us to determine why the relevant minimum rates in the Awards have not been properly fixed we accept that varying the relevant awards to give effect to the interim increase we propose would be likely to have a beneficial effect on the gender pay gap and promote pay equity.”[70]
The Full Bench considered that the ‘more contentious issue’ is the proper construction and application of ss.134(1)(e) and 284(1)(d)[71] and noted that, consistent with authority, the definition of ‘equal remuneration for work of equal or comparable value’ contained in s.302(2) is to be read into ss.134(1)(e) and 284(1)(d) such that the relevant consideration is ‘the principle of equal remuneration for men and women workers for work of equal or comparable value’.[72] The Full Bench set out the Expert Panel’s approach to ss.134(1)(e) and 284(1)(d) in the Annual Wage Review 2017-18, including the meaning to be attributed to the principle:
“As explained in the Equal Remuneration Decision 2015, the principle of equal remuneration for work of equal or comparable value is enlivened when an employee or group of employees of one gender do not enjoy remuneration equal to that of another employee or group of employees of the other gender who perform work of equal or comparable value. Further, as the Full Bench observed:
“This is essentially a comparative exercise in which the remuneration and the value of the work of a female employee or group of female employees is required to be compared to that of a male employee or group of male employees.””[73]
Further, the Full Bench noted that in the Teachers Decision, the Full Bench held that even where an award variation would significantly improve the remuneration of a female-dominated area of the workforce, unless its purpose was to equalise the remuneration of workers in the sector with a group of male workers performing work of equal or comparable value, the principle in ss.134(1)(e) and 284(1)(d) is not a relevant consideration.[74]
The Full Bench went on to state:
“this approach essentially imports the statutory test for satisfying the jurisdictional prerequisite for the making of an equal remuneration order − that the Commission is satisfied that, for the employees to whom the order will apply, there is not equal remuneration for men and women workers for work of equal or comparable value − into the principle of equal remuneration. On reflection, it may not be necessary to do this.”[75]
The Full Bench then made a number of observations about the application of ss.134(1)(e) and 284(1)(d):
“1.Equal remuneration for work of equal or comparable value’ is expressed as a principle that the Commission must take into account as part of an evaluative exercise; it is not a matter about which the Commission must be satisfied in order to meet a statutory test.[76]
2.The principle is one of several broad social and economic considerations in s.134(1) and 284(1), which are applied on a case-by-case basis. The ss.134(1) and 284(1) considerations do not, in themselves, set a standard against which a modern award could be evaluated.[77]
3.If the approach to ss.134(1)(e) and 284(1) in the Teachers Decision is adopted, the principle ‘would seem to have very little work to do’:
“[Sections 134(1) and 284(1)] have no application to Part 2-7. If so limited, the principle would only appear to be relevant if it could be shown, through a comparator group of the opposite gender, that work covered by the award was undervalued or that the variation would otherwise address the discriminatory effect of an award term on the male or female-dominant workforce covered by the award. This restrictive reading seems inconsistent with the nature of the considerations in ss.134(1) and 284(1), which comprise broad social and economic objectives.”[78]
4.In the context of the equal remuneration provisions in Part 2-7, the Commission has observed that these provisions are remedial or beneficial, with the general purpose being ‘to remedy gender wage inequality and promote pay equity.’”[79]
The Full Bench went on to observe:
“if increasing minimum wages in an award would be likely to remedy historical gender based undervaluation of the subject work or have a beneficial effect on the gender pay gap or gender pay equity, then it might be said to be consistent with, or ‘promote’ or ‘further’ ‘the principle of equal remuneration for men and women workers for work of equal or comparable value’ and be a factor weighing in favour of the award variation.
If this were correct, then the principle’s relevance would not be confined to where an award variation would equalise wage rates for men and women workers performing work of equal or comparable value.”[80]
The Secure Jobs, Better Pay Act amended s.134 to remove subsection 134(1)(e) – the principle of equal remuneration for work of equal or comparable value and insert new subsection 134(1)(ab):
“the need to achieve gender equality in the workplace by ensuring equal remuneration for work of equal or comparable value, eliminating gender-based undervaluation of work and providing workplace conditions that facilitate women’s full economic participation”
The Secure Jobs, Better Pay Act also amended the equal remuneration provisions in Part 2–7 of the FW Act. Relevantly, the amendments introduced new subclauses 302(3A)–(3C):
(3A) For the purposes of this Act, in deciding whether there is equal remuneration for work of equal or comparable value, the FWC may take into account:
(a)comparisons within and between occupations and industries to establish whether the work has been undervalued on the basis of gender; or
(b)whether historically the work has been undervalued on the basis of gender; or
(c)any fair work instrument or State industrial instrument.
(3B) If the FWC takes into account a comparison for the purposes of paragraph (3A)(a), the comparison:
(a) is not limited to similar work; and
(b) does not need to be a comparison with an historically male-dominated occupation or industry.
(3C) If the FWC takes into account a matter referred to in paragraph (3A)(a) or (b), the FWC is not required to find discrimination on the basis of gender to establish the work has been undervalued as referred to in that paragraph.
The Explanatory Memorandum notes that prior to the amendments, the FW Act was ‘silent as to how equal remuneration should be assessed’ with the amendments providing further guidance to the Commission.[81] The Explanatory Memorandum notes that the amendments are intended to clarify the relevance of a ‘male comparator’:
“The FWC has interpreted the current equal remuneration provisions of the FW Act as requiring that it must be satisfied that a group of employees covered by an equal remuneration application do not receive equal remuneration for work of equal or comparable value compared to another group of employees of the opposite gender. This requirement for a reliable ‘male comparator’ group has been interpreted as a necessary threshold test which parties must satisfy before the FWC will determine an application for an ERO. The combined effect of new paragraph 302(3A)(a) and subclause 302(3B) would be to remove this requirement to establish a reliable ‘male comparator’ as a jurisdictional prerequisite to making an ERO. The FWC would still have the discretion to take into account comparisons within and between occupations and industries in order to establish whether work has been undervalued on the basis of gender.”[82] [emphasis added]
In the Stage 1 decision, the Full Bench noted that the consideration in s.284(1)(d) is in the same terms as s.134(1)(e) and invited further submissions on the proper construction and relevance of the principle, having regard to the discussion about s.134(1)(e).[83]
The Secure Jobs, Better Pay Act amended s.284(1) to remove s.284(1)(d) – the principle of equal remuneration for work of equal or comparable value – and introduce new s.284(1)(aa).
Section 284(1)(aa) is expressed in similar terms to s.134(1)(ab) however rather than the consideration of ‘providing working conditions that facilitate women’s full economic participation’, s.284(1)(aa) requires a consideration of the need to achieve gender equality ‘by addressing gender pay gaps’.
The Secure Jobs, Better Pay Act inserted s.157(2B) into the FW Act which provides:
(2B) The FWC’s consideration of work value reasons must:
(a) be free of assumptions based on gender; and
(b) include consideration of whether historically the work has been undervalued because of assumptions based on gender.
The Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 describes s.157(2B) as follows:
“346. This item would introduce subclause 157(2B) to clarify that the FWC’s consideration of work value reasons must be free of assumptions based on gender and must include consideration of whether historically the work being assessed has been undervalued because of such assumptions. This item is modelled after subsection 248(3) and paragraph 248(4)(c) of the Industrial Relations Act 2016 (Qld) and would ensure that the FWC’s consideration of work value applications cannot be affected by gender-based assumptions about the value of work.
347. In the Equal Remuneration Decision 2015, the Full Bench of the FWC expressed a view that the definition of work value reasons would be sufficiently broad to allow a party to advance a claim that minimum rates of pay in a modern award undervalue work due to historical gender-related reasons [(2015) 256 IR 362, [292]]. This item would have the effect of confirming the Full Bench’s view in the FW Act.”[84]
4.1 Submissions
Commonwealth submissions
The Commonwealth submitted that the reference to ‘secure work’ in s.134(1)(aa) is directed to a similar purpose as the reference to ‘job security’ in the object of the Act, is not defined and takes its ordinary meaning. The Commonwealth offered that indicators of secure work may include, but are not limited to, the degree of certainty an employee has about the duration of their employment, the predictability of their pay and the circumstances in which their employment may end. The Commonwealth submitted that as a result, s.134(1)(aa) is ‘most likely to be engaged in relation to award terms that relate to matters such as the type of employment, arrangements for when work is performed, and notice of termination and redundancy rather than terms that relate only to hourly rates of pay.’[85]
The Commonwealth argued that the Applications do not seek to vary any award terms that are directly relevant to secure work and, in any event, the Government’s commitment to fully fund the interim increase means that any additional costs associated with the Stage 1 decision will not affect employer incentives around secure work. Consequently, the Commonwealth submitted that s.134(1)(aa) is a neutral consideration.
The Commonwealth submitted that the introduction of s.134(1)(ab) means that the issue as to the proper construction and application of s.134(1)(e) falls away. The Commonwealth noted that ‘gender equality’, ‘gender-based undervaluation of work’ and ‘gender pay gaps’ are not defined in the FW Act and so take on their ordinary meaning. The Commonwealth submitted that the breadth and depth of these terms means the Commission need not engage in the comparative exercise contemplated at [1057] of the Stage 1 decision, nor limit the application of the objectives to situations where an award variation would equalise wages for men and women workers performing work of equal or comparable value as contemplated at [1060] of the Stage 1 decision.[86]
The Commonwealth submitted the amendments provide a clear basis for the Commission to consider that its provisional views set out at [1048] of the Stage 1 decision and its findings as to gender-based undervaluation and the gender pay gap at [740]–[758] and [859]–[866] support implementing the interim increase, specifically:[87]
· the Commission must take into account the object of the FW Act in amended s.3(a) to promote gender equality (s.578(a))
· the provisional views expressed at [1048] and the findings as to gender-based undervaluation and the gender pay gap at [740]–[758] and [859]–[866] would lead the Commission to consider that new s.284(1)(aa) is a positive factor in terms of whether the interim increase is necessary to achieve the modern awards objective, as it would support achieving gender equality in the workplace, including by reducing gender-based undervaluation of work and addressing the gender pay gap.
The Commonwealth submitted that as the Commission has not yet made a determination varying the Awards, it is necessary for the Commission to be satisfied that its consideration of work value reasons conforms with s.157(2B).
The Commonwealth maintained that s.157(2B)(a) imposes a negative standard or requirement on how the Commission considers work value reasons within the existing meaning in s.157(2A), that is, in considering work value reasons, the Commission must not make assumptions based on gender.[88]
The Commonwealth submitted that the Commission has extensive expert evidence before it about the ‘gendered assumptions which have historically been applied in the assessment of the work value of work in the aged care sector’ and has given ‘close consideration to that evidence’. The Commonwealth further submitted that in conducting its assessment of work value, the Commission has relied on and applied the expert evidence of Assoc Professor Junor ‘which exposes invisible skills that may have been given inadequate weight in previous work value assessments including because of gender-based assumptions’. The Commonwealth submitted that consequently the Commission’s consideration of work value has met the requirements of s.157(2B)(a).[89]
The Commonwealth submitted that the ‘principal mischief’ that s.157(2B)(b) is intended to address is the use of minimum rates that were improperly fixed because of gender-based assumptions as a foundation or datum point for applying later changes in work value:
“If minimum rates that have been set based on historical assumptions about gender are used as a reference point for future wage rises, gender-based undervaluation will be perpetuated, even if later assessments of changes in work value do not themselves make such assumptions. Section 157(2B)(b) requires the Commission considers whether this is a factor in each case.”[90]
The Commonwealth submitted that s.157(2B)(b) does not require the Commission to make a positive finding about historical undervaluation but rather the Commission ‘must actively turn its mind to the question of historical undervaluation.’[91] The Commonwealth submitted that the Commission’s consideration of historical undervaluation due to gender-based assumptions in the Stage 1 decision is sufficient to satisfy s.157(2B)(b).[92]
The Commonwealth noted that in the Stage 1 decision the Commission observed that ‘while not mandatory, where work value has previously been properly taken into account it is likely the Commission would adopt an appropriate datum point from which to measure work value change, as a means of avoiding double counting’ but that ‘a past assessment which was not free of gender-based undervaluation or other improper considerations would not constitute a proper assessment for these purposes.’[93]
The Commonwealth further noted that in the Stage 1 decision the Commission proceeded on the basis that the existing rates in the Awards have not been properly fixed and submitted:
“This means there is no risk of past undervaluations being carried forward into the minimum rates that the Commission will finally determine at Stage 3 of these proceedings. This will have the effect of addressing the issue of any historical undervaluation because of assumptions based on gender, which is the mischief to which new s 157(2B)(b) is directed.”[94]
The Commonwealth argued that even though the Commission was not required to make a finding as to whether the minimum rates were affected by gender undervaluation, ‘it is apparent that the Commission gave consideration to whether work in the aged care sector had been undervalued because of gender-based assumptions’ for the following reasons:[95]
1. The expert evidence before the Commission and the submissions addressed historical gender-based undervaluation. The Stage 1 decision ‘comprehensively summarises this evidence and argument.’[96]
2. The Commission accepted key propositions from the expert evidence that there is historical undervaluation of care work for gendered reasons.[97]
3. After giving close consideration to expert evidence on gender undervaluation in the aged care sector, the Commission accepted key propositions on gender-based undervaluation, including accepting that there were ‘barriers and limitations to the proper assessment of work value in female dominated industries and occupations’ and that 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.’[98]
4. The Commission drew on expert evidence to ensure that its assessment of work value was free of assumptions based on gender, including accepting the evidence of Associate Professor Junor that Spotlight skills identified in the Junor Report in respect of RNs, ENs and AINs/PCWs working in aged care are correctly characterised as skills, and should be brought to account in the assessment of work value.[99]
The Commonwealth concluded that there are ‘clear indications’ that the Commission has turned its mind to historical gender-based undervaluation and that is ‘sufficient to discharge the obligation in s.157(2B)(b), especially given the Commission’s finding that wages were never properly fixed.’[100]
HSU submissions
In respect of the new amendments to the modern awards objective, the HSU submitted that only s.134(1)(ab) is of real significance to the present case, with s.134(1)(aa) presenting a neutral consideration.[101]
The HSU submitted that the new section s.134(1)(ab) requires the Commission to take into account three distinct matters:
(a) equal remuneration for work of equal or comparable value, which arguably contemplates a comparator-based exercise;
(b) separately, the elimination of gender-based undervaluation, that is, an obligation to, where undervaluation is detected, increase wages to correct it; and
(c) the need to provide workplace conditions that facilitate women’s full economic participation which does not appear to be directly relevant here.[102]
The HSU submitted that s.284(1)(aa) also requires the Full Bench take into account three elements for the purpose of establishing and maintaining a safety net for minimum wages, the first two being the same as in s.134(1)(ab) with the third imposing a direct requirement to take into account the need to address gender pay gaps.[103]
Concerning the inserting of the new s.157(2B), the HSU submitted that the obligations imposed by s.157(2B)(b) are not arid and that the subsection’s purpose is to ensure that where any such historical gender-based undervaluation is detected that it is corrected, that is, by sufficiently increasing wages.[104]
The HSU noted that the Stage 1 decision established that the statutory task before the Full Bench did not require them to form a view as to why the rates in the relevant awards have not then properly fixed.[105] In light of the amendments, the HSU submitted that this task has expanded.[106]
The HSU refers to the following findings of the Stage 1 decision:
“(a) at [758](6)], that historical wage fixing approaches have not properly recognised and corrected for undervaluation based on gendered assumptions;
(b) at [785]-[857], that the roles require skills which, because of assumptions about gender, were traditionally ‘hidden’ and thus not compensated for within current wage levels; and
(c) at [865], that the proper valuation of the work and corresponding wage increases would likely reduce the gender wage gap.”[107]
The HSU submitted that, in the new statutory context, these findings ‘not only strongly weigh in favour of a conclusion that the interim increase is necessary to meet both the modern award and minimum wage objectives as now amended’ but ‘indicate that a more significant increase is likely warranted.’ Further, the HSU submitted that the factors now required to be taken into account by s.134(1)(ab) and s.284(1)(aa) also favour the interim increase commencing immediately or as soon as practicable.[108]
The HSU submitted that the interim increases are necessary to achieve the modern awards objective and the minimum wages objective having regard to the findings of the Full Bench that the work of direct care workers is significantly undervalued and that work in feminised industries like care work has been historically undervalued. The HSU submitted that the new ss.134(1)(ab) and 284(1)(aa) support this conclusion.[109]
The HSU noted ss.134(1)(e) and 284(1)(d) have been repealed and replaced with ss.134(1)(ab) and 284(1)(aa) respectively and that both those new subsections require the Full Bench to consider the need to eliminate gender-based undervaluation and, in the case of s.284(1)(aa), address gender pay gaps.[110] The HSU submitted that, in light of the findings set out at paragraph [1048] of the Stage 1 decision, these considerations strongly weigh in favour of the variations being necessary to achieve the modern awards objective.[111]
ANMF submissions
The ANMF noted that the explanatory memorandum and second reading speech to the Secure Jobs, Better Pay Bill refer to the legislative amendments putting gender equity at the ‘heart’ of the Commission’s decision making and the Fair Work system.[112]
In respect of the amendment to the object of the FW Act at s.3(a), the ANMF identified that the explanatory memorandum notes that s.15AA of the Acts Interpretation Act 1901 (Cth) requires that the FW Act be interpreted in a way that would best achieve the object of the FW Act, and that s.578(a) of the FW Act requires that the Commission take into account the objects of the FW Act when performing its functions or exercising its powers under the Act.[113]
The ANMF submitted that the amendment to the object of the FW Act will be relevant to the proper interpretation of s.166, providing the Commission’s powers regarding when determinations varying modern awards minimum wages come into operation, s.157 including the meaning of ‘work value reasons’ for the purposes of s.157(2A) as well as both the modern awards objective at s.134 and the minimum wages objective at s.284.[114]
In respect of s.134(1)(aa), the ANMF agreed with the Commonwealth that the applications before the Commission do not seek to vary any award terms that are directly relevant to secure work, however, it submitted that the interim increase is likely to contribute to increased security of work, and would not prejudice the objective.[115] The ANMF noted the Full Bench has before it substantial evidence and material going to the high rates of staff turnover in the industry and the financial difficulties faced by aged care workers.[116]
The ANMF submitted that granting the interim increase would make a contribution to countering the exploitative use of the ‘many faces’ of job insecurity such as casual employment, labour hire arrangements, part-time employment and rolling fixed-term contracts, in line with the purpose of s.134(1)(aa), and would also contribute to the retention of direct aged care workers in the sector.[117]
The ANMF further submitted the interim increase would not have a significant negative impact upon the business of aged care providers or have a negative impact upon need to improve access to secure work across the economy.[118]
In respect of the need to achieve gender equality, the ANMF noted that s.134(1)(ab) introduces new elements, which involve a substantial re-casting of this aspect of the objective. The ANMF submitted that the use of ‘the need to achieve’, as well as the words ‘ensuring’, ‘eliminating’ and ‘providing’ in this context highlights that the necessary goal is achieving gender equality, rather than merely aspiring to gender equality.[119]
The ANMF submitted that the amendments to ss.3(a) and 134(1)(ab), which now include references to promoting gender equality, are a significant change to the legislation applied by the Full Bench in Stage 1 of this proceeding.[120]
The ANMF submitted that the primary task for the Full Bench remains to determine the actual value of the work in aged care and whether a variation is justified by ‘work value reasons’. However, the ANMF submitted that in light of the amendments the Full Bench must now take into account whether the work of direct aged care workers is undervalued for gender-based reasons.[121]
The ANMF noted the Full Bench has already found that care work has been historically undervalued and further submitted that in the context of legislative amendments, the Full Bench would now further find that the work of direct aged care workers has been historically undervalued for gender-based reasons, a finding which may be comfortably made based on the evidence, in particular that of Assoc Professor Junor.[122]
The ANMF noted the Full Bench previously found Assoc Prof Junor’s evidence ‘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)).’ The ANMF submitted that in its consideration of s.134(1)(ab), the Full Bench will retain this view of Assoc Prof Junor’s evidence.[123]
The ANMF submitted that the minimum award rates applicable to direct aged care workers undervalue the work for gender-based reasons, is a natural conclusion to be drawn, based upon:
1. The propositions accepted by the Commission at [758] of the Stage 1 decision;
2. Assoc Prof Junor’s application of the Spotlight Tool;
3.The additional evidence of Assoc Prof Junor, Assoc Prof Smith and Dr Lyons and Prof Charlesworth;
4.The evidence of Kristen Wischer (ANMF Senior Federal Industrial Officer) as to the industrial history of the Nurses Award, and the evidence of Leigh Svendsen (HSU Senior Industrial and Compliance Officer) in relation to the industrial history of the Aged Care Award;
5. The gendered nature of the aged care workforce.[124]
After reaching such a conclusion, the ANMF submitted that the Full Bench must then take into account the need to achieve gender equality in the workplace as provided for in s.134(1)(ab).
The ANMF submitted that s.134(1)(ab) weighs in favour of awarding the interim increase, and that failure to grant the interim increase would fail to ensure the provision of a fair and relevant safety net of minimum terms and conditions, having regard to the need to achieve gender equality in the workplace.[125]
The ANMF submitted that there is a substantial overlap between the terms of the modern awards objective at s.134(1)(ab) and the minimum wages objective at s.284(1)(aa). Accordingly, the ANMF reiterated its submissions regarding the modern awards objective which apply equally to the minimum wages objective. However, the ANMF noted the minimum wages objective also directs the Commission to the need to achieve gender equality by ‘addressing gender pay gaps’.[126]
The ANMF submitted that addressing gender pay gaps is an apt reference to the practical consequence of gender-based undervaluation and[127]refers to the variety of evidence provided by Assoc Prof Smith and Dr Lyons that identify contributing factors to the gender pay gap.[128]
The ANMF submitted that, while it remains true that these proceedings are not a general inquiry into the drivers of the gender pay gap, the terms of s.284(1)(aa) invite the Commission to further develop the findings made in the Stage 1 decision, namely that:
The gender pay gap manifests in the gender-based undervaluation of the work of direct aged care workers; and
Eliminating that gender-based undervaluation would address the gender pay gap and facilitate achieving gender equality and a safety net of fair minimum wages.[129]
In respect of the addition of s.157(2B), the ANMF submitted that, as identified by the explanatory memorandum to the Secure Jobs, Better Pay Bill,[130] one consequence will be to confirm that a party may advance a work value claim on the basis that minimum rates of pay in a modern award undervalue work due to historical gender-related reasons.[131] The use of work value assessments designed to recognise skills otherwise hidden for gender-based reasons will also assist to allow considerations of work value reasons that are free of assumptions based on gender.[132]
The ANMF submitted that it appears that the insertion of s.157(2B) requires the Full Bench to revisit paragraph [866] of the Stage 1 decision, and others, where it held that it is not necessary to decide why the relevant minimum rates have not been properly fixed given that the Commission must now to consider whether historically aged care work has been undervalued because of assumptions based on gender.[133]
The ANMF submitted that the Full Bench has already undertaken substantial consideration of the kind contemplated by s.157(2B), notably in its acceptance of Assoc Prof Junor’s evidence both that skills utilised by aged care workers are ‘invisible’ due to gender-based assumptions about the work, and similar evidence from Assoc Prof Smith and Dr Lyons.[134] The ANMF submitted that because of s.157(2B)(b), it is now necessary for the Full Bench to expressly make a finding that the historical undervaluation of work in feminised industries, including care work, is gender-based.
UWU submissions
The UWU submitted that the amendments arising from the Secure Jobs, Better Pay Act have the effect of making the Stage 1 decision even more compelling and its implementation more urgent.[135] The UWU agreed with the Commonwealth’s submissions generally, regarding the operation of the Secure Jobs Better Pay Act, except in so far as they are relevant to the timing of the implementation of the interim increase.[136]
The UWU agreed with the provisional views of the Full Bench expressed at paragraphs [1053] to [1063] of the Stage 1 decision concerning consideration s.134(1)(e), the principle of equal remuneration, noting that this decision was made prior to the amendments of the Secure Jobs, Better Pay Act.[137]
The UWU submitted that, to the extent it is necessary to satisfy the modern awards objective, the Full Bench should depart from earlier decisions in respect to the proper construction of ss.134(1)(e) and 284(1)(d) of the Act.[138] Further, UWU submitted that in light of the Secure Jobs Better Pay Act, the continued application of Teachers Decision, the Equal Renumeration Decision 2015 and the Annual Wage Review 2021-22 (and similar) would be inconsistent with the new ss.134(1)(aa) and 134(1)(ab) and s.284(1)(aa).[139]
The UWU submitted that if the Full Bench was to perform the ‘comparative exercise in which the remuneration and the value of the work of a female employee or group of female employees is required to be compared to that of a male employee or group of male employees’ per the Equal Remuneration Case 2015,[140] the Full Bench would fall into error.[141] The UWU submitted that such a comparison would not be comparing like with like and would have the effect of perpetuating the gender pay gap because of the historical undervaluation of work in aged care.[142]
The UWU submitted that the Full Bench should instead adopt a broader interpretation of ss.134(1)(e) and 284(1)(d) that would be consistent with, or ‘promote’ the ‘the principle of equal remuneration for men and women workers for work of equal or comparable value’.[143]
The UWU submitted that a timely implementation of the interim increase would reduce the gender pay gap sooner and in this respect be consistent with the repealed considerations of s.134(1)(e) of the modern awards objective and s.284(1)(d) of the minimum wages objective, as well as benefit female participation.[144]
The UWU submitted that the new ss.134(1)(ab) and 284(1)(aa) support this approach as they require the Full Bench to consider ‘the need to achieve gender equity in the workplace by ensuring equal remuneration for work of equal or comparable value, eliminating gender-based undervaluation of work and providing workplace conditions that facilitate women’s full economic participation’.[145]
The UWU agreed with the submission of the HSU in respect of the operation of ss.134(1)(ab) and 284(1)(aa).[146]
The UWU submitted the new s.284(1)(aa) operates similarly to the new s.134(1)(ab) and reiterated its submissions relating to that consideration in respect of s.284(1)(aa).[147]
Joint Employer submissions
The Joint Employers supported the Commonwealth’s conclusion that the Full Bench can be satisfied that its consideration of work value reasons conforms with the new s.157(2B).
In respect of the new s.284(1)(aa) the Joint Employers submitted that the Stage 1 decision provides clear indications that the Commission has taken into account and properly considered the need to achieve gender equity, having exhaustively considered the question of historical undervaluation due to gender-based assumptions and addressed gender pay gaps.[148]
The Joint Employers submitted that s.134(1)(ab) is similar to s.284(1)(aa), the former being more specific and exhaustive than the latter, and including a reference to ‘workplace conditions’. The Joint Employers submit that the Full Bench have taken s.134(1)(ab) into account, and rely on their submissions made in respect of s.284(1)(aa), which apply to those parts of s.134(1)(ab) that concern minimum wages.
Regarding the new s.134(1)(aa) requiring the Commission to take into account the need to improve access to secure work across the economy, the Joint Employers submitted that this introduces a positive obligation similar to ‘encourage collective bargaining’ in s.134(1)(b),and operates similarly to s.134(1)(h).[149]
Noting the Full Bench’s observations in the Stage 1 decision in relation to s.134(1)(h),[150] the Joint Employers submitted that this matter is unlikely to have implications for secure work ‘across the economy’ as distinct from a sectoral or employer by employer consideration. Accordingly, the Joint Employers submitted that like s.134(1)(h), s.134(1)(aa) should be a neutral consideration.[151]
Commonwealth submissions in reply
The Commonwealth submitted that the consideration in s.134(1)(aa) is neutral as to whether and when the interim increase should be made and the Full Bench should not take into account issues of attraction and retention under s.134(1)(aa). The Commonwealth added that issues of attraction and retention are an individual’s choice to become or remain employed, whereas secure work is determined by factors outside of an individual’s control, namely the security of an individual’s position.[152]
The Commonwealth submitted that the Secure Jobs, Better Pay amendments place gender equality at the ‘heart’ of the Commissions’ decision making.[153] However, this does not displace the existing objects of the FW Act or the modern awards and minimum wages objectives.
The Commonwealth accepted the amendments to s.3(a) and new ss.134(1)(ab) and 284(1)(aa) are relevant to the timing and implementation of the interim increase. The Commonwealth did not accept however that these new provisions mandate the interim increase commencing immediately, or that any other decision would fail to achieve these objectives.[154] The Commonwealth added that the new provisions do not displace the well-established principle that there is no primacy to any of either the ss.134(1) or 284(1) considerations. Similarly, the Commission’s obligation under s.578(a) is to take into account all of the objects of the FW Act.[155]
HSU submissions in reply
In respect of the Joint Employers’ submissions on 20 January 2023, the HSU submitted that the Joint Employers appear to assume the tasks of considering the new ss.157(2B), 134(1)(ab) and 284(1)(aa) have been exhausted by the consideration of the Full Bench in the Stage 1 decision.[156]
The HSU does not fully accept the Joint Employers’ submission that the requirement to eliminate gender-based undervaluation has been achieved by the Commission in the Stage 1 decision or that the Commission has completed the task of setting the rates in the relevant awards. The HSU stated that the Full Bench has made clear the interim increase does not exhaust the extent of the increase and has not completed consideration of the modern awards and minimum wages objectives.
The HSU also submitted that the considerations in s.284(1)(aa) are not only relevant in the assessment of work value reasons contemplated by s.157(2A), now supplemented by s.157(2B), but that ss.134(1)(ab) and 284(1)(aa) make clear the need to achieve gender equality must be taken into account in providing a fair and relevant minimum safety net and establishing and maintaining fair minimum wages. The HSU submitted that these considerations are particularly relevant to submission of the Commonwealth as to the phasing of the interim increase, and is a factor militating against delay in giving effect to the interim increase.[157]
The HSU contested the Joint Employers’ submission that addressing the gender pay gap has already been fully achieved by the Commission or that the Full Bench has reached a view that the gender pay gap would be eliminated by the 15 per cent interim increase.[158]
In respect of the Joint Employers’ submission that the ‘some care’ should be applied to how a statistical concept derived from aggregate level of pay should be translated into a jurisdiction concerned with setting fair minimum rates, the HSU submitted that this ignores the express requirement in s.284(1)(aa) for the Commission to take into account ‘the need’ to address gender pay gaps in establishing and maintaining a safety net of fair minimum wages. The HSU further submitted that although it can be measured in various ways, the ‘gender pay gap’ refers to the difference between average earnings of men and women, and this is consistent with how it is understood in the Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022.[159]
In response to the submissions of the ANMF, the HSU submitted that in respect of s. 134(1)(aa), the submissions of the ANMF appear to go beyond the object of improving access to secure work across the economy. The ANMF suggested that the interim increase would improve the attraction and retention of employees in the aged care sector, and would thereby have a positive impact on secure work.[160] The HSU submitted that the fact that s.134(1)(aa) refers to the need to ‘improve access to secure work’ suggests that it is directed at security from the perspective of the employee and that the objective is to ensure that modern awards provide security to employees in relation to matters such as certainty of ongoing engagement and predictability of duties, hours of work and pay. The HSU added however that the findings of the Full Bench with respect to attraction and retention, and the ample evidence before the Full Bench, are otherwise relevant to the task of providing a fair and relevant minimum safety net of terms and conditions of employment and, at least to the factors in ss.134(1)(c) and 134(1)(f).
ANMF submissions in reply
In response to the Joint Employers’ submissions regarding s.157(2B), the ANMF submitted that the new obligations are not yet met and revisiting some findings will be required.[161]
In response to the Joint Employers’ submission, the ANMF submitted that the Full Bench should:
“decline to substitute other words (“fairness between the genders”) for the words in fact used (“gender equality”). Minds may very well differ about what “fairness” requires, as between the genders; “equality” is a less woolly concept, and it is the word chosen by the legislature.”[162]
The ANMF submitted that despite the submissions of the Joint Employers, it was not concluded by the Full Bench in the Stage 1 decision that the elimination of gender undervaluation has been achieved in awarding the interim increase.[163] The ANMF submitted that the increase foreshadowed is expressly interim only and further increases will be required before the Commission would conclude that gender-based undervaluation has been eliminated.[164]
Similarly, the ANMF disagreed with the Joint Employers and submitted the process of addressing gender pay gaps is still a work in progress. The ANMF submitted the Joint Employers may have suggested ‘addressing’ gender pay gaps is synonymous with ‘considering’ gender pay gaps.[165] The ANMF submitted that this should be rejected, and state that ‘addressing gender pay gaps’ relates to material action, not reasoning and is in service of the achievement of gender equality.[166]
Responding to the Joint Employers, the ANMF submitted that it is not accurate to say that with the award of the interim increase the minimum wages objective is achieved. The ANMF submitted that further increases are required in order to ensure the relevant objective is achieved.[167]
So far as the Joint Employers utilised minimum-wages propositions in addressing the modern awards objective, the ANMF repeated its submissions in regard to the Joint Employer’s minimum wages submissions.[168]
The ANMF referred to the submission of the Joint Employers that the Full Bench does not need to consider s.134(1)(aa) at length because it operates at ‘a macro level’. The ANMF agreed this consideration operates at a macro level in the sense that it is economy-wide, but further submitted that the macro level is a confluence of decisions at the micro level and that s.134(1)(aa) is a mandatory relevant consideration.[169]
The ANMF submitted that the Full Bench should analyse whether the variation will either ‘enhance, detract from, or be neutral in regard to, the security of work’. If it enhances security of work, then this enhances the economy-wide position. The analysis is mirrored for micro detraction, or micro neutrality. In this matter, the ANMF submitted, the Full Bench is able to find that increasing minimum wages will enhance the security of the relevant work.[170]
For reasons given above, the ANMF submitted that s.134(1)(aa) weighs in favour of the variation, rather than being neutral as submitted by the HSU.[171] The ANMF agreed with and adopted the positions of the HSU that the considerations under ss.134(1)(ab) and 284(1)(aa) strongly weigh in favour of the interim increase.[172]
Joint Employer submissions in reply
The Joint Employers submitted that the Full Bench needs to be cautious of the amplification of s.134(1)(ab) above the other considerations noting that no consideration has primacy and all need to be evaluated and weighed.[173]
Additionally, the Joint Employers submitted that the Full Bench ought not become overly focused on the contest between the considerations of s.134(1) but ultimately exercise broad discretion in establishing a fair and relevant minimum safety net for both employers and employees subject to the constraints of s.138.[174]
The Joint Employers reiterated that the current proceedings do not appear to require the Full Bench ‘to say too much’ about the introduction of the notion of secure work in s.134(1)(aa) and the objects of the Act.[175]
The Joint Employers submitted that in its simplest form secure work can only be achieved in the context of financially stable business operations and a decision which undermines the ordinary financial stability of business operations will not improve access to secure work.[176]
4.2 Consideration
Amendments to the modern awards objective
The inclusion of s.134(1)(aa) in the modern awards objective requires the Commission to take into account the need to improve access to secure work across the economy. We consider that this is a neutral consideration in the current context. Whilst ‘secure work’ is undefined, we consider that it is directed at a similar purpose to the new reference to ‘job security’ in the objects of the Act. We agree with the Commonwealth’s submission that secure work is concerned with the security of a person’s position while employed. The consideration of s.134(1)(aa) would be most directly engaged in relation to considering terms such as those relating to the forms of employment, the conditions of engagement and termination of employment, and terms relating to levels of certainty and predictability of when work is performed, from the perspective of an employee. Increases to the minimum rate of pay may increase the attractiveness of the work and in doing so positively impact recruitment and retention in the aged care industry. They may encourage an employee to seek employment in and remain employed in the industry, however the rate of pay itself does not provide either lower or higher levels of secure work or job security from an employee perspective. The issues of attraction and retention of employees are more relevantly considered, and in the Stage 1 decision have been, in relation to s.134(1)(c).
[302] Joint Employers submissions dated 20 January 2023 at [55]-[57].
[303] Joint Employers submissions dated 20 January 2023 at [55]-[59].
[304] Joint Employers submissions dated 20 January 2023 at [60].
[305] Joint Employers submissions dated 20 January 2023 at [62].
[306] Commonwealth submissions in reply dated 10 February 2023 at [2] citing Commonwealth submissions dated 8 August 2022.
[307] Commonwealth submissions in reply dated 10 February 2023 at [4].
[308] Commonwealth submissions in reply dated 10 February 2023 at [5] citing Commonwealth submissions dated 16 December 2022.
[309] Commonwealth submissions in reply dated 10 February 2023 at [8] citing the HSU submissions dated 20 January 2023 at [21].
[310] Commonwealth submissions in reply dated 10 February 2023 at [9] citing the Joint Employer Submission dated 20 January 2023 at [48]; and Commonwealth submissions dated 16 December 2022 at [14]-[18].
[311] Commonwealth submissions in reply dated 10 February 2023 at [10].
[312] Commonwealth submissions in reply dated 10 February 2023 at [11] citing HSU submissions dated 20 January 2023 at [19]; ANMF submissions dated 20 January 2023 at [77] and [86]–[87]; UWU submissions dated 20 January 2023 at [2](b).
[313] Commonwealth submissions in reply dated 10 February 2023 at [12].
[314] Commonwealth submissions in reply dated 10 February 2023.
[315] Commonwealth submissions in reply dated 10 February 2023 Annexure at [2] citing the Eagar second supplementary report.
[316] Commonwealth submissions in reply dated 10 February 2023 Annexure at [2] citing The Commonwealth’s submissions dated 16 December 2022 at [12.3].
[317] Commonwealth submissions in reply dated 10 February 2023 Annexure at [3] citing the Eagar second supplementary report at [3].
[318] Commonwealth submissions in reply dated 10 February 2023 Annexure at [3].
[319] Commonwealth submissions in reply dated 10 February 2023 Annexure at [4].
[320] Commonwealth submissions in reply dated 10 February 2023 Annexure at [6].
[321] Commonwealth submissions in reply dated 10 February 2023 Annexure at [7].
[322] Commonwealth submissions in reply dated 10 February 2023 Annexure at [8] citing the Eagar second supplementary report at [32]-[34].
[323] Commonwealth submissions in reply dated 10 February 2023 Annexure at [8].
[324] Commonwealth submissions in reply dated 10 February 2023 Annexure at [9] citing the Eagar second supplementary report at [34].
[325] Commonwealth submissions in reply dated 10 February 2023 Annexure at [9].
[326] Commonwealth submissions in reply dated 10 February 2023 Annexure at [10.2] citing Commonwealth Submissions dated 16 December 2022 at [11.2].
[327] Commonwealth submissions in reply dated 10 February 2023 Annexure at [10.2] citing Commonwealth Submissions dated 16 December 2022 at [11.3].
[328] Commonwealth submissions in reply dated 10 February 2023 Annexure at [10].
[329] Transcript, 13 February 2023 at PN436.
[330] Transcript, 13 February 2023 at PN437.
[331] HSU submissions in reply dated 9 February 2023 at [11] citing the Joint Employers submissions dated 20 January 2023 at [51]-[52].
[332] HSU submissions in reply dated 9 February 2023 at [11] citing HSU submissions dated 20 January 2023 at [47]-[48].
[333] HSU submissions in reply dated 9 February 2023 at [12]-[14] citing the Joint Employers submissions dated 20 January 2023 at [42].
[334] HSU submissions in reply dated 9 February 2023 at [15]-[16] citing the Commonwealth submissions dated 29 August 2022 at [5]-[6], [16].
[335] HSU submissions in reply dated 9 February 2023 at [17].
[336] HSU submissions in reply dated 9 February 2023 at [18] citing Commonwealth Submissions dated 16 December 202 at [5.1]–[5.2].
[337] HSU submissions in reply dated 9 February 2023 at [18].
[338] HSU submissions in reply dated 9 February 2023 at [19].
[339] HSU submissions in reply dated 9 February 2023 at [20].
[340] Commonwealth submissions dated 16 December 2022 at [14]-[18].
[341] HSU submissions in reply dated 9 February 2023 at [21] citing the Joint Employers submissions dated 20 January 2023 at [48].
[342] HSU submissions in reply dated 9 February 2023 at [22] citing the e Joint Employers submissions dated 20 January 2023 at [52].
[343] HSU submissions in reply dated 9 February 2023 at [22] citing The Joint Statement dated 16 December 2022 at [2].
[344] HSU submissions in reply dated 9 February 2023 at [23].
[345] HSU submissions in reply dated 9 February 2023 at [24] citing the Joint Employer submissions dated 20 January 2023 at [55].
[346] HSU submissions in reply dated 9 February 2023 at [24].
[347] HSU submissions in reply dated 9 February 2023 at [25].
[348] HSU submissions in reply dated 9 February 2023 at [26].
[349] HSU submissions in reply dated 9 February 2023 at [27] citing the Second Supplementary Eagar Report at [28].
[350] HSU submissions in reply dated 9 February 2023 at [27] citing the Second Supplementary Eagar Report at [31(b)]-[32].
[351] HSU submissions in reply dated 9 February 2023 at [27] citing the Second Supplementary Eagar Report at [233]-[34].
[352] HSU submissions in reply dated 9 February 2023 at [28].
[353] HSU submissions in reply dated 9 February 2023 at [29].
[354] HSU submissions in reply dated 9 February 2023 at [31] citing the Joint Employer submissions dated 20 January 2023 at [86].
[355] HSU submissions in reply dated 9 February 2023 at [32].
[356] HSU submissions in reply dated 9 February 2023 at [33] see statement of Paul Sadler dated 1 March 2022 at [48]-[52]; Statement of Anna-Marie Wade dated 23 May 2022 at [26]-[45].
[357] HSU submissions in reply dated 9 February 2023 at [33] citing reply witness statement of Lauren Hutchins dated 22 April 2022 at [43]-[44].
[358] HSU submissions in reply dated 9 February 2023 at [33].
[359] HSU submissions in reply dated 9 February 2023 at [37] citing ANMF submissions dated 20 January 2023 at [77] and [86]-[89].
[360] HSU submissions in reply dated 9 February 2023 at [37].
[361] [2022] FWCFB 4.
[362] HSU submissions in reply dated 9 February 2023 at [38].
[363] HSU submissions in reply dated 9 February 2023 at [39] citing ANMF submissions dated 20 January 2023 at [96].
[364] HSU submissions in reply dated 9 February 2023 at [39].
[365] Transcript, 13 February 2023 at PN336-PN337.
[366] Transcript, 13 February 2023 at PN338-PN342.
[367] Transcript, 13 February 2023 at PN344-PN347.
[368] Transcript, 13 February 2023 at PN344-PN348; citing Social, Community, Home Care and Disability Services Industry Award 2010, [2019] FWCFB 6067 at [136]-[138].
[369] Transcript, 13 February 2023 at PN360.
[370] [2023] FWCFB 32.
[371] Transcript, 13 February 2023 at PN386.
[372] ANMF submissions in reply dated 9 February 2023 at [19] citing ANMF submissions dated 22 April 2022 at [148]-[155]; ANMF closing submissions dated 22 July 2022 at [849]-[855]; ANMF closing submissions in reply dated 17 August 2022 at [200].
[373] ANMF submissions in reply dated 9 February 2023 at [20]-[24].
[374] Joint Employers submissions dated 20 January at [44] and [82(a)].
[375] ANMF submissions in reply dated 9 February 2023 at [25].
[376] ANMF submissions in reply dated 9 February 2023 at [26] citing Joint Employers submission dated 20 January at [47].
[377] ANMF submissions in reply dated 9 February 2023 at [26] citing Joint Employers submission dated 20 January at [51].
[378] ANMF submissions in reply dated 9 February 2023 at [26] citing Joint Employers submission dated 20 January at [53].
[379] ANMF submissions in reply dated 9 February 2023 at [26].
[380] Joint Employers submissions dated 20 January at [55]-[61] and [82(e)].
[381] ANMF submissions in reply dated 9 February 2023 at [27].
[382] Joint Employers submissions dated 20 January at [58].
[383] The ANMF submissions in reply dated 9 February 2023 at [28].
[384] Joint Employers submissions dated 20 January at [59]-[61].
[385] ANMF submissions in reply dated 9 February 2023 at [29].
[386] Joint Employers submissions dated 20 January at [88]-[89].
[387] HSU submissions dated 20 January 2023 at [13].
[388] ANMF submissions in reply dated 9 February 2023 at [30].
[389] ANMF submissions in reply dated 9 February 2023 at [31] citing the Joint Employers submission dated 20 January at [90].
[390] ANMF submissions in reply dated 9 February 2023 at [32].
[391] ANMF submissions in reply dated 9 February 2023 at [34].
[392] ANMF submissions in reply dated 9 February 2023 at [35] citing Joint Employers submission dated 20 January at [92].
[393] ANMF submissions in reply dated 9 February 2023 at [35] citing Joint Employers submission dated 20 January at [92].
[394] ANMF submissions in reply dated 9 February 2023 at [36] citing Joint Employers submission dated 20 January at [91].
[395] ANMF submissions in reply dated 9 February 2023 at [36].
[396] ANMF submissions in reply dated 9 February 2023 at [38] citing HSU submissions dated 20 January 2023 at [42], [14]-[16], [19], [27]-[28] and [43]-[48].
[397] ANMF submissions in reply dated 9 February 2023 at [39] citing UWU submissions dated 20 January 2023 at [41]. [43]-[46].
[398] ANMF submissions in reply dated 9 February 2023 at [39] citing AWU submissions dated 20 January 2023.
[399] ANMF submissions in reply dated 9 February 2023 at [40] citing the Commonwealth submissions dated 16 December 2023.
[400] ANMF submissions in reply dated 9 February 2023 at [40].
[401] Transcript, 13 February 2023 at PN468.
[402] Transcript, 13 February 2023 at PN473; PN487.
[403] Transcript, 13 February 2023 at PN444.
[404] Joint Employers submissions in reply dated 9 February 2023 at [4].
[405] Joint Employers submissions in reply dated 9 February 2023 at [6].
[406] Joint Employers submissions in reply dated 9 February 2023 at [7]
[407] Joint Employers submissions in reply dated 9 February 2023 at [8].
[408] Joint Employers submissions in reply dated 9 February 2023 at [9].
[409] Joint Employers submissions in reply dated 9 February 2023 at [11].
[410] Joint Employers submissions in reply dated 9 February 2023 at [12]-[13].
[411] Joint Employers submissions in reply dated 9 February 2023 at [14]-[15].
[412] Joint Employers submissions in reply dated 9 February 2023 at [16] citing statement of Grant Corderoy, 8 February 2023 at [32].
[413] Joint Employers submissions in reply dated 9 February 2023 at [17] and [19].
[414] Joint Employers submissions in reply dated 9 February 2023 at [18].
[415] Joint Employers submissions in reply dated 9 February 2023 at [18] citing statement of Grant Corderoy dated 8 February 2023 and Stuart Brown Report p 1.
[416] Joint Employers submissions in reply dated 9 February 2023 at [8] Corderoy and StuartBrown Report p 3.
[417] Joint Employers submissions in reply dated 9 February 2023 at [20] citing StuartBrown Report Table 1 p 9.
[418] Joint Employers submissions in reply dated 9 February 2023 at [21].
[419] Joint Employers submissions in reply dated 9 February 2023 at [22] citing Witness Statement of Grant Corderoy dated February 2023, [34].
[420] Joint Employers submissions in reply dated 9 February 2023 at [23].
[421] Joint Employers submissions in reply dated 9 February 2023 at [24].
[422] Joint Employers submissions in reply dated 9 February 2023 at [25].
[423] Joint Employers submissions in reply dated 9 February 2023 at [26].
[424] Joint Employers submissions in reply dated 9 February 2023 at [27].
[425] Joint Employers submissions in reply dated 9 February 2023 at [27]-[28].
[426] Joint Employers submissions in reply dated 9 February 2023 at [30], citing Amended statement of Anna-Marie Wade dated 23 May 2022 at [15]-[19].
[427] Joint Employers submissions in reply dated 9 February 2023 at [31].
[428] Joint Employers submissions in reply dated 9 February 2023 at [35-36].
[429] Joint Employers submissions in reply dated 9 February 2023 at [37]-[40].
[430] Joint Employers submissions in reply dated 9 February 2023 at [41] citing Commonwealth submission dated 16 December 2022 at [8]-[18]
[431] Re4 yearly review of modern awards – Penalty Rates [2019] FWCFB 1001; ReAnnual Wage Review 2017-18[2018] FWCFB 3500; Re4 yearly review of modern awards - Pharmacy Industry Award2010[2018] FWCFB 7621; Re Independent Education Union of Australia[2021] FWCFB 2051; ReAlpine Resorts Award 2010[2018] FWCFB 4984.
[432] Transcript, 13 February at PN541.
[433] Transcript, 13 February 2023 at PN547.
[434] Transcript, 13 February 2023 at PN561-PN564.
[435] Transcript, 13 February 2023 at PN570.
[436] Transcript 13 February 2023 at PN523.
[437] Joint Employers submissions in reply dated 9 February 2023 at [12].
[438] Transcript, 13 February 2023, PN214-PN312.
[439] Witness Statement of Grant Corderoy, dated 9 February 2023 at [1].
[440] Witness Statement of Grant Corderoy, dated 9 February 2023 at [5]-[6].
[441] Witness Statement of Grant Corderoy, dated 9 February 2023 at [14]-[21]
[442] Witness Statement of Grant Corderoy, dated 9 February 2023 at [15].
[443] Witness Statement of Grant Corderoy, dated 9 February 2023 at [14]-[31].
[444] Witness Statement of Grant Corderoy, dated 9 February 2023 at [32]-[40].
[445] Witness Statement of Grant Corderoy, dated 9 February 2023 at [33].
[446] Witness Statement of Grant Corderoy, dated 9 February 2023 at [34].
[447] Transcript, 13 February 2023, PN216-PN269.
[448] Transcript, 13 February 2023, PN270-PN312.
[449] Transcript, 13 February 2023, PN227-PN229.
[450] Transcript, 13 February 2023, PN231.
[451] Transcript, 13 February 2023, PN233-PN257.
[452] Transcript, 13 February 2023, PN251, PN254.
[453] Transcript, 13 February 2023, PN253-PN254.
[454] Transcript, 13 February 2023, PN255.
[455] Transcript, 13 February 2023, PN260.
[456] Transcript, 13 February 2023, PN270-PN294.
[457] Transcript, 13 February 2023, PN276 and PN277.
[458] Transcript, 13 February 2023, PN279.
[459] Transcript, 13 February 2023, PN281.
[460] Transcript, 13 February 2023, PN290-PN295.
[461] Transcript, 13 February 2023, PN291.
[462] Transcript, 13 February 2023, PN292.
[463] Transcript, 13 February 2023, PN295-PN312.
[464] Transcript, 13 February 2023, PN301.
[465] Transcript, 13 February 2023, PN302-313.
[466] Transcript, 13 February 2023, PN303.
[467] Transcript, 13 February 2023, PN315-324.
[468] Witness Statement of Johannes Brockhaus, dated 9 February 2023 at [2]
[469] Witness Statement of Johannes Brockhaus, dated 9 February 2023 at [2]-[5], [7]-[14], [15]-[19], [20]-[26] and [27]-[34].
[470] Witness Statement of James Alexander Lachlan McLean Shaw, dated 9 February 2023 at [2].
[471] Witness Statement of James Alexander Lachlan McLean Shaw, dated 9 February 2023 at [5]-[15], [6]-[21] and [22]-[28].
[472] Witness Statement of Michelle Jenkins, dated 9 February 2023 at [2].
[473] Witness Statement of Michelle Jenkins, dated 9 February 2023 at [5]-[30].
[474] Witness Statement of Michelle Jenkins, dated 9 February 2023 at [31]-[34].
[475] Witness Statement of Michelle Jenkins, dated 9 February 2023 at [35]-[43].
[476] ANMF submissions dated 9 February 2023 at [20]; Transcript 13 February 2023 at PN123.
[477] Transcript 13 February 2023 at PN171.
[478] HSU submissions dated 17 February 2023 at [3].
[479] HSU submissions dated 17 February 2023 at [3]-[4].
[480] HSU submissions dated 17 February 2023 at [6].
[481] ANMF submissions dated 16 February 2023 at [2]-[3] citing the Evidence Act 1995 (Cth) s 79; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at 604 [37] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[482] ANMF submissions dated 16 February 2023 at [5].
[483] ANMF submissions dated 16 February 2023 at [6].
[484] ANMF submissions dated 16 February 2023 at [7].
[485] ANMF submissions dated 16 February 2023 at [7] citing StewartBrown Aged Care Financial Performance Survey Sector Report (FY22) p 3.
[486] ANMF submissions dated 16 February 2023 at [7]-[10].
[487] ANMF submissions dated 16 February 2023 at [11].
[488] ANMF submissions dated 16 February 2023 at [12]-[13].
[489] ANMF submissions dated 16 February 2023 at [14].
[490] ANMF submissions dated 16 February 2023 at [15].
[491] ANMF submissions dated 16 February 2023 at [18].
[492] ANMF submissions dated 16 February 2023 at [19]-[23].
[493] ANMF submissions dated 16 February 2023 at [21]-[23].
[494] ANMF submissions dated 16 February 2023 at [24].
[495] ANMF submissions dated 16 February 2023 at [25].
[496] ANMF submissions dated 16 February 2023 at [25].
[497] ANMF submissions dated 16 February 2023 at [27].
[498] ANMF submissions dated 16 February 2023 at [26] citing Statement of Johannes Brockhaus dated 9 February 2023 at [2]-[6] and [31]-[33].
[499] Joint Employers submissions: Weight to be given to Reply Evidence, dated 17 February 2023 at [3].
[500] Joint Employers submissions: Weight to be given to Reply Evidence, dated 17 February 2023 at [3(a)].
[501] Joint Employers submissions: Weight to be given to Reply Evidence, dated 17 February 2023 at [3(b)].
[502] Joint Employers submissions: Weight to be given to Reply Evidence, dated 17 February 2023 at [3(d)].
[503] Joint Employers submissions: Weight to be given to Reply Evidence, dated 17 February 2023 at [3](c)(iv).
[504] Joint Employers submissions: Weight to be given to Reply Evidence, dated 17 February 2023 at [5].
[505] Joint Employers submissions: Weight to be given to Reply Evidence, dated 17 February 2023 at [5] citing Health Sector Awards - Pandemic Leave [2020] FWCFB 3561 (8 July 2020) at [99]
[506] Joint Employers submissions: Weight to be given to Reply Evidence, dated 17 February 2023 at [6].
[507] Joint Employers submissions: Weight to be given to Reply Evidence, dated 17 February 2023 at [7].
[508] Joint Employers submissions: Weight to be given to Reply Evidence, dated 17 February 2023 at [8].
[509] Stage 1 decision at [982].
[510] Stage 1 decision at [983].
[511] Stage 1 decision at [984].
[512] Stage 1 decision at [990].
[513] Stage 1 decision at [922].
[514] Stage 1 decision at [1006].
[515] Stage 1 decision at [916].
[516] Stage 1 decision at [915].
[517] HSU submissions dated 20 January 2023 at [31]; ANMF submissions dated 20 January 2023 at [104]; Joint Employers submissions dated 20 January 2023 at [74]-[79].
[518] Stage 1 decision at [1012].
[519] Stage 1 decision at [1012].
[520] Commonwealth submissions dated 16 December 2022 at [3.1].
[521] HSU submissions dated 20 January 2023 at [35].
[522] HSU submissions dated 20 January 2023 at [16](d).
[523] ANMF submissions dated 20 January 2023 at [90] citing Stage 1 decision at [1008].
[524] UWU submissions dated 20 January 2023 at [2(a)].
[525] UWU submissions dated 20 January 2023 at [10].
[526] Joint Employers submissions dated 20 January 2023 at [74]-[79].
[527] Stage 1 decision at [1028].
[528] Stage 1 decision at [1029].
[529] Stage 1 decision at [1030].
[530] Commonwealth submissions dated 16 December 2022 at [3.1].
[531] HSU submissions dated 20 January 2023 at [36].
[532] HSU submissions dated 20 January 2023 at [37].
[533] ANMF submissions dated 22 July 2022, at [857]-[869].
[534] ANMF submissions dated 20 January 2023 at [92] citing Stage 1 decision at [1028].
[535] UWU submissions dated 20 January 2023 at [11].
[536] UWU submissions dated 20 January 2023 at [12] citing ANMF Form 46 Application to vary a modern award (AM2021/63) dated 17 May 2021 at [27]; 4 November December at [1015].
[537] UWU submissions dated 20 January 2023 at [13].
[538] UWU submissions dated 20 January 2023 at [13].
[539] UWU submissions dated 20 January 2023 at [13].
[540] Stage 1 decision at [1038].
[541] Stage 1 decision at [1039]–[1040].
[542] Commonwealth submissions dated 16 December 2022 at [3.1].
[543] HSU submissions dated 20 January 2023 at [35].
[544] ANMF submissions dated 20 January 2023 at [93] citing Stage 1 decision at [1039].
[545] UWU submissions dated 20 January 2023 at [14].
[546] Stage 1 decision at [1008].
[547] Commonwealth submissions dated 16 December 2022 at [3.1].
[548] HSU submissions dated 20 January 2023 at [35].
[549] ANMF submissions dated 20 January 2023 at [90].
[550] Stage 1 decision at [1008].
[551] Commonwealth submissions dated 16 December 2022 at [3.1].
[552] HSU submissions dated 20 January 2023 at [35].
[553] ANMF submissions dated 20 January 2023 at [90].
[554] Stage 1 decision at [1008].
[555] Commonwealth submissions dated 16 December 2022 at [3.1].
[556] HSU submissions dated 20 January 2023 at [35].
[557] HSU submissions dated 20 January 2023 at [16(f)].
[558] HSU submissions dated 20 January 2023 at [16(f)].
[559] HSU submissions dated 20 January 2023 at [16(f)].
[560] ANMF submissions dated 20 January 2023 at [90].
[561] UWU submissions dated 20 January 2023 at [35].
[562] Stage 1 decision at [1072].
[563] Commonwealth submissions dated 16 December 2022 at [3(a)].
[564] HSU submissions dated 20 January 2023 at [35].
[565] HSU submissions dated 20 January 2023 at [16(h)].
[566] ANMF submissions dated 20 January 2023 at [102] citing Stage 1 decision at [1072].
[567] UWU submissions in reply dated 19 August 2022 at [18].
[568] UWU submissions dated 20 January 2023 at [27].
[569] Joint Employers submissions dated 20 January 2023 at [71].
[570] Stage 1 decision at [1075].
[571] Stage 1 decision at [1074].
[572] HSU submissions dated 20 January 2023 at [49].
[573] ANMF submissions dated 20 January 2023 at [105]-[110].
[574] Joint Employers submissions dated 20 January 2023 at [32].
[575] Stage 1 decision at [1079]–[1080].
[576] Stage 1 decision at [1081].
[577] Stage 1 decision at [1082].
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