Aged Care Award 2010 - [2023] FWCFB 45

[2023] FWCFB 45

FAIR WORK COMMISSION

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)

DEPUTY PRESIDENT ASBURY
DEPUTY PRESIDENT o’NEILL
COMMISSIONER BISSETT

BRISBANE, 3 MARCH 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 – determinations issued.

Introduction

On 21 February 2023 we issued a decision[1] (the Stage 2 decision) in which we decided to vary the Aged Care Award 2010 (Aged Care Award), Nurses Award 2020 (Nurses Award) and Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) (collectively, the Awards) to provide an interim increase of 15 per cent to modern award minimum wages for the following employees:

· direct care workers under the Awards;

· Head Chefs/Cooks under the Aged Care Award (aged care employee level 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 decided that this increase is necessary to achieve the modern awards and minimum wages objectives at ss.134(1) and 284(1) of the Fair Work Act 2009 and specified that it will take effect from 30 June 2023.[2]

The background to the case is summarised at paragraphs [1] to [8] of the Stage 2 decision.

Draft determinations giving effect to the interim increase were published concurrently with the Stage 2 decision. Interested parties were directed to file any comments in relation to the draft determinations no later than Wednesday, 1 March 2023.

Only the Australian Nursing and Midwifery Federation (ANMF) filed comments in response.[3] We will deal with each of the issues raised by the ANMF in turn.

Draft determination – Aged Care Award

Inclusion of personal care employees in clause B.1—Aged care employee—general

The ANMF notes that the classifications in clause B.1—Aged care employee—general (general stream) continue to include “Personal care” employees at each classification level, but with “no indicative task” listed. To avoid confusion, the ANMF submits the reference to “Personal care” employees should be omitted from the general stream.

We agree and the references have been removed from the final determination.

Classification of direct care stream employees at level 1 and 6

The ANMF also notes that the direct care stream includes provision for the classification of employees at level 1 (clause B.2.1) and at level 6 (clause B.2.6) although “no indicative task” is listed for personal care employees at these levels. The ANMF states that, at present, the Aged Care Award does not provide for the employment of PCWs or RAOs at levels 1 or 6.

The ANMF submits that it opposes any realignment downward of the entry level for PCWs from level 2 to level 1 under the Aged Care Award.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWCFB 45
Decision Date: 3 MARCH 2023

CaseChat Overview and Summary

In the case before the Fair Work Commission, the Australian Council of Trade Unions (ACTU) applied for a variation of the Aged Care Award 2010. This application sought to address the classification and remuneration of certain workers within the aged care sector, specifically focusing on the distinctions between the Aged Care Award 2010 and the Nurses Award 2020. The matter involved the Social, Community, Home Care and Disability Services Industry Award 2010, as well. The Commission was tasked with determining whether an interim increase in pay should be applied to certain roles pending a full review. The Commission issued determinations that provided for interim increases in the pay of the relevant employees.

The legal issues before the Commission centred on the classification of workers under the different awards and the applicability of an interim pay increase. The primary concern was whether the workers in question should be classified under the Aged Care Award 2010 or the Nurses Award 2020, given the evolving nature of roles and responsibilities in the sector. Additionally, the Commission had to consider whether an interim increase in remuneration was warranted for these workers while a comprehensive review of their classification and pay rates was undertaken.

In reaching its decision, the Commission carefully examined the evidence and submissions provided by the parties. It noted that the roles of workers in the aged care sector had become more complex, often overlapping with nursing responsibilities. The Commission determined that an interim increase in pay was justified to reflect the increased value of the work performed by these employees. The determinations issued by the Commission provided for these interim increases, which would be in effect pending the outcome of further review and classification decisions. The Commission's reasoning was grounded in the need to ensure fair remuneration for the workers involved, pending a definitive resolution of their classification under the relevant awards.

The final orders of the Commission included the issuance of determinations that provided for interim increases in the pay of the workers in question. These determinations were intended to offer immediate relief to the employees while a more thorough examination of their classification and remuneration was conducted. The Commission's decisions reflected a commitment to ensuring that the workers received fair and equitable treatment in the interim period, pending the outcome of further classification and pay reviews.

Orders