Application to vary the Social, Community, Home Care and Disability Services Industry Award 2010
[2023] FWC 830
•5 APRIL 2023
| [2023] FWC 830 |
| FAIR WORK COMMISSION |
| STATEMENT |
Fair Work Act 2009
s.160—Variation of modern award
Application to vary the Social, Community, Home Care and Disability Services Industry Award 2010
(AM2020/21)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 5 APRIL 2023 |
Application to vary the Social, Community, Home Care and Disability Services Industry Award 2010.
On 6 April 2020, Ms Zeenat Abdullah lodged a Form F46: Application seeking a variation to clause 25.3 of the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) to remove ambiguity or uncertainty or correct an error. Pursuant to ss.621(2) and 582 of the Fair Work Act 2009 (the Act), Justice Ross directed the matter be dealt with by me as an application under s.160 of the Act.
I have previously outlined the procedural history of the application in a statement dated 28 September 2021 (September Statement).[1]
Ms Abdullah seeks by her application to vary clause 25.3 of the SCHADS Award, which currently provides:
“25.3 Rostered days off
Employees, other than a casual employee, will be free from duty for not less than two full days in each week or four full days in each fortnight or eight full days in each 28 day cycle. Where practicable, days off will be consecutive.”
The application has engaged the interest of National Disability Services (NDS), the Australian Industry Group (Ai Group) and the Australian Federation of Employers and Industries (AFEI), together with the Australian Services Union (ASU), the Health Services Union (HSU) and the United Workers Union (UWU) (collectively, ‘the Unions’). A summary of submissions in writing previously filed by these parties, and those filed by Ms Abdullah, was outlined in the September Statement.
At a hearing held on 27 October 2021, the parties were afforded the opportunity to make oral submissions in support of their written submissions. The parties were also asked to address the amended clause that had been proposed by Ms Abdullah on 15 June 2020 and the following two options suggested by NDS, which she has now adopted:
i)Retain the existing clause 25.3 but add an exception that adopts the wording of the draft determination, confined to periods free from duty following the performance of a sleepover or night shift;[2] or
ii)Express time off for night shift workers as “nights off” rather than days off, reflecting the approach used in some pre-reform awards that applied in the community and disability services sector.[3]
It was apparent from the hearing that Ms Abdullah, NDS, Ai Group and AFEI support the variation of clause 25.3 so that it deals with employees engaged to work sleepover or night shifts in a manner they submit would be consistent with day workers. The ASU, HSU and UWU maintained their opposition to the application, arguing there was no evidentiary basis to support the changes sought.
NDS submitted that the application might most effectively be progressed by the development of a draft determination for further consideration. NDS suggested that such a draft determination might be developed either by the Commission or by interested parties. The transcript from the hearing held on 27 October 2021 is available here.
I afforded the NDS, Ai Group and AFEI the opportunity to develop a joint draft determination by 3:00pm on 19 November 2021. The NDS engaged with Ms Abdullah as part of that process. On 19 November 2021, the NDS filed submissions and a draft determination, and advised that the submissions were supported by Ms Abdullah and the draft determination was supported by each of AiG, AFEI and Ms Abdullah.
In the submissions, the NDS identified ‘the problem’ as constituting the following:
· The current clause 25.3 of the SCHADS Award requires an average of 2 rostered days off each week;
· As it stands, it is not possible to roster 5 shifts in a week where one or more shifts are a night shift or sleepover that spans two calendar days, and still comply with the requirement for two days off in each week;
· The effect of one or more night shifts or sleepovers in a week where 5 shifts are rostered is that the periods of work span 6 calendar days;
· The result is that it is not possible for a fulltime, or part-time employee to be rostered for 5 shifts per week where one or more shifts are night shift or sleepover, in a way that complies with the SCHADS Award; and
· As a consequence, employees who regularly work night shift or sleepover are unable to be rostered in a way that would maximise the hours they are able to work.
The NDS submitted that this constitutes a deficiency in the construction of the SCHADS award and that the award should be varied to remedy the deficiency as a matter of merit.
The draft determination outlined a proposed clause 25.3 in the following terms:
“25.3 Rostered Time Free From Duty
a)Subject to clause 25.3(b), employees, other than casual employees, will be free from duty for not less than two full days in each week or four full days in each fortnight or eight full days in each 28 day cycle. Where practicable, days off will be consecutive.
b)Where the time free from duty is rostered to immediately follow a night shift or the performance of a sleepover, for the purposes of clause 25.3(a), ‘day’ shall mean a 24 hour period.”
As to this proposed clause 25.3, the NDS submitted it provides an appropriate remedy to the problem that has been identified. In particular, the NDS emphasised:
· The title of the clause is varied to “Rostered time free from duty” to take the focus off the concept of a “day” while preserving the principle that employees are entitled to time off as prescribed by the clause.
· Clause 25.3 (b) provides that where the time off is rostered to immediately follow a night shift or sleepover, the term “day” (in clause 25.3 (a)) is taken to mean 24 hours.
· If an employee works a mix of shift types, the 24 hour formulation can only apply to a period of time off rostered to follow a night shift or sleepover.
· The 24 hour formulation cannot apply to periods of time off following other types of shifts such as day or afternoon. This means the proposed award variation has no effect on workers who do not work night shift or sleepovers.
· The 24 hour formulation is proposed rather than simply providing for “nights” off, in order to provide a clearer definition of the time off, and to avoid the prospect of rosters being manipulated to further reduce the amount of time off available for the employee.
· The draft determination would make it possible for both fulltime and part-time employees to be rostered to work 5 shifts in a week including one or more night shifts or sleepovers, and also be compliant with clause 25.
A joint submission in response was filed by the Unions on 10 December 2021. The Unions submitted proposed variations of both Ms Abdullah and the NDS were without merit and should be rejected by the Commission. As regards the proposed variation of the NDS, the Unions submitted:
· It would result in a substantial reduction in an employee’s entitlement to time off work.
· The entitlement to a day off work is significant because it allows an employee at least two nights of rest between periods of work and the opportunity to both recuperate after working and participate in life outside of work.
· If the NDS’ proposed variation were adopted, an employee could finish work in the morning of one day and return to work in the morning of the next day.
· This was very likely because of the “chaotic and inefficient business practices in the disability sector;” and
· It is very unlikely that the proposed variation would increase either the amount of work available to part-time employees or the incidence of full-time employment.
The Unions disputed the NDS assertions that Clause 25.3:
· Prevents a full-time or part-time employee from being rostered for five shifts per week where one or more shifts is a sleepover or a night shift in a manner that complies with the Award;
· Operates as a bar to both full-time employment and part-time employees maximising the number of hours that they work; and
· Always requires an employee to have two rostered days off in each week.
The Unions asserted the NDS submissions regarding the operation of Clause 25.3 are characterised by imprecision because they ignore the ‘significant flexibility’ provided by the SCHADS Award to roster employees to work. The Unions contended that the limitations on the hours of work available to disability sector employees result from the ‘unsophisticated and inefficient business practices of disability sector employers’ and structural factors, such as the requirement for services that limit the amount of work available at particular times. The Unions submitted it is more likely that the work available to employees would remain the same, such that instead of increasing the hours of work available to employees, the variations would make their hours of work more chaotic.
The Unions submitted that if Ms Abdullah presses her initial claim, or a variation of it, she should be asked to clarify her application and the matter should be listed for full programming. In the case of the NDS, the Unions submitted that if the NDS presses its claim, it should make another application.
Provisional Views
At 2.3 in the Form F46: Application, Ms Abdullah submitted “The term 2 full days should be removed and replaced with a period of 48 hours” and “To avoid ambiguity please remove day and replace with hours.” Section 160 of the Act provides that the Commission may make a determination varying a modern award to remove ambiguity or uncertainty or correct an error. Section 157 provides that the Commission may make a determination varying a modern award if it is satisfied that making the determination is necessary to achieve the modern awards objective.
Having regard to the variations proposed by Ms Abdullah and NDS, the rationale behind them and the submissions of the parties, I consider that it has become apparent that the application is in substance more than an application for a determination varying the SCHADS Award to remove ambiguity or uncertainty or correct an error.
My provisional views are that the application that has been made by Ms Abdullah pursuant to s.160 of the Act is in substance an application to vary the SCHADS Award pursuant to s.157 of the Act and if I am not persuaded the application falls within the operation of s.160, it is open to me to dismiss it.
The possible eventualities flowing from my provisional views include:
a)An interested party may seek to persuade me that there is a basis for the Commission to continue to exercise powers in relation to the application; or
b)Ms Abdullah may determine instead to discontinue this current application and make application pursuant to s.157 of the Act and pursue the variation she seeks; and
c)NDS may determine to make application pursuant to s.157 of the Act and pursue the variation it seeks.
If an interested party seeks to persuade me that it is open to the Commission to continue to deal with the current application, including other than pursuant to s.160 of the Act, or an application is made pursuant to s.157, regard should be had to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, which has amended the Act to establish new Expert Panels within the Commission. An effect of the amendments, which commenced on 6 March 2023, is that an Expert Panel will be required when the Commission is considering changes to modern awards which relate to, inter alia, the Care and Community Sector. Further, the new Expert Panel provisions also apply to matters already before the Commission.
The parties will have the opportunity to file submissions in response to my provisional views by 3:00pm (AEST) on Monday, 24 April 2023. Submissions should be sent in both word and pdf format to [email protected].
DEPUTY PRESIDENT
<PR760905>
[1] [2021] FWC 5997
[2] NDS Submission, 10 July 2020 at paragraph 22.
[3] NDS Submission, 10 July 2020 at paragraph 23.
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