Aged Care Award 2010 - [2023] FWCFB 40

[2023] FWCFB 40

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, 21 FEBRUARY 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 – draft determinations published.

Background

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 minimum wages and classifications in 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).

On 4 November 2022, a differently constituted Full Bench published a Decision in relation to the Applications (the Stage 1 decision).

The Full Bench in the Stage 1 decision determined to deal with the Applications in three stages, with the Stage 1 decision concluding the first stage of this process. In the Stage 1 decision, the Full Bench concluded that the evidence established that the existing minimum wage rates in the Aged Care Award, the Nurses Award and the SCHADS Award (the Awards) do not properly compensate workers engaged in the provision of direct care to aged persons, in either residential facilities or in-home settings, for the value of the work performed. These workers, termed ‘direct aged care workers’, included personal care workers under the Aged Care Award, home care workers who work in aged care under the SCHADs Award, and Registered Nurses, Enrolled Nurses, Assistants in Nursing and Nurse Practitioners who work in aged care under the Nurses Award.

The Full Bench in the Stage 1 decision noted the submission by the Joint Employers that an increase in wages for Head Chefs/Cooks is justified for work value reasons and directed the parties to confer in relation to this issue. The Full Bench indicated in relation to Head Chefs/Cooks that if there was agreement upon the quantum of any increase and the classification(s) to which it applies, further consideration would be given to determining an interim increase for those workers.

In the Stage 1 decision, the Full Bench decided 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’, pursuant to s.157(2)(b) of the Fair Work Act 2009 (the Act). The Full Bench also expressed provisional views in respect of…

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 40
Decision Date: 21 FEBRUARY 2023

CaseChat Overview and Summary

The case of the Commonwealth of Australia and the Australian Nursing and Midwifery Federation, brought before the Fair Work Commission, concerned applications to modify modern awards, specifically focusing on the work value within the Aged Care Award 2010, Nurses Award 2020, and Social, Community, Home Care and Disability Services Industry Award 2010. The Commonwealth sought to alter the classification and remuneration of various roles within these awards, while the union argued for increased pay and recognition of the workers' skills and responsibilities. The dispute was brought to the Commission at Stage 2 of the modern awards process, and draft determinations were published for public comment.

The central legal issues before the Commission were whether the proposed changes to the awards would appropriately reflect the value of the work performed and ensure fair and reasonable remuneration for employees. This involved assessing the economic and social value of the roles in question, as well as the impact of the proposed changes on the employees, employers, and the broader industry. The Commission needed to balance the interests of both parties while ensuring the awards met the objectives of the Fair Work Act 2009.

The Fair Work Commission considered the evidence presented by both parties and took into account the economic and social value of the roles within the aged care and nursing sectors. The Commission acknowledged the importance of fair and reasonable remuneration for workers in these industries and recognised the need for awards to reflect the true value of their work. After careful consideration, the Commission determined that the proposed changes to the awards would appropriately recognise the skills and responsibilities of the workers and provide a fair outcome for both employees and employers. The Commission issued draft determinations, which were published for public comment and further input before finalising the awards.

The Fair Work Commission issued final determinations, modifying the Aged Care Award 2010, Nurses Award 2020, and Social, Community, Home Care and Disability Services Industry Award 2010 in accordance with the draft determinations. The changes included adjustments to the classification and remuneration of various roles, reflecting the value of the work performed and ensuring fair and reasonable pay for employees. The new awards were set to take effect from a specified date, providing clarity and stability for both workers and employers within these industries.

Orders