Application to vary the Social, Community, Home Care and Disability Services Industry Award 2010

[2021] FWC 5997

[2021] FWC 5997

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, 28 SEPTEMBER 2021

Application to vary the Social, Community, Home Care and Disability Services Industry Award 2010.

[1] On 6 April 2020, Ms Zeenat Abdullah made an application pursuant to s.157 of the Fair Work Act 2009 seeking a variation to clause 25.3 of the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award).

[2] 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.”

[3] The basis of the application Ms Abdullah makes is that while the wording of clause 25.3 is sufficient and self-evident for day shift workers, it does not fairly or equitably deal with night shift or sleepover shift workers. Ms Abdullah contends that sleepovers cannot and should not be measured in days because a sleepover shift crosses over two calendar days and is therefore measured in hours. As such, Ms Abdullah contends that the rostered time off for sleepover and night shift workers should instead be stated as “48 hours free from duty” as opposed to “two full days”.

[4] A conference before me by telephone took place on 18 May 2020. It was attended by Ms Abdullah and her representative, Mr Stewart Bailey. Also present were representatives from the Australian Industry Group (Ai Group), Australian Federation of Employers and Industries (AFEI) and National Disability Services (NDS). While these parties did not express opposition to the application, they requested the opportunity to consult further with their members in relation to the application. The transcript from the conference is available here.

[5] Following the Conference, a statement dated 11 June 2020 (June 2020 statement) was issued confirming that the SCHADS Award is currently the subject of review as part of the 4 yearly review of Modern Awards and as part of that process, the Commission has released a series of Exposure Drafts which outline proposed amendments to the SCHADS Award. The June 2020 statement confirmed that the equivalent to clause 25.3 of the SCHADS Award in the most recent version of Exposure Draft dated 15 March 2019, is clause 13.3.

[6] Submissions were filed in response to directions made in the June 2020 statement by:

•  AFEI

•  AiGroup

•  Australia Services Union (ASU)

•  Health Services Union (HSU)

•  NDS

•  United Workers’ Union (UWU)

Australian Federation of Employers and Industries

[7] AFEI gives in principle support of the application. They do not support the replacement of clause 25.3, but rather a variation that substitutes:

•  ‘“two full days in each week” with “Two periods of 24 hours in each week”’; 1

•  ‘“four full days in each fortnight” with “Four periods of 24 hours in each fortnight”’; 2

•  ‘“eight full days in each 28 day cycle” with “Eight periods of 24 hours in each 28 day cycle”’. 3

[8] AFEI reserve the opportunity to review any proposed determination submitted by the Applicant and provide a draft determination with their proposed wording.

Australian Industry Group

[9] The Ai Group supports the application and proposes the following amendments (underlined) to ‘ensure that employees are entitled to 24 consecutive hours off work and that where practicable, those 24 hour periods are consecutive. This is consistent with the scheme of the extant clause 25.3.’ 4.

25.3 Rostered days off

(a) An employee, other than a casual employee, will be free from duty for at least:

(i) Two periods of 24 consecutive hours in each week;

(ii) Four periods of 24 consecutive hours in each fortnight; or

(iii) Eight periods of 24 consecutive hours in each 28 days cycle.

(b) Where practicable, hours off the 24 hour periods prescribed by clauses 25.3(a)(i)–(iii) will be consecutive.

National Disability Services

[10] NDS support the application in principle but this support is subject to any variation being limited to ‘employees engaged to work sleepover or night shifts.’ 5

[11] NDS suggest two redrafting options which might achieve this objective:

•  ‘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’;⁶ or

•  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.⁷

[12] In addition, NDS suggest consideration of a further amendment for the purpose of ‘clarifying the treatment of hours worked where such time off is not provided.’ 8

Australia Services Union

[13] The ASU opposes the application for the following reasons:

•  For full-time, part-time and casual employees it would reduce their ‘entitlement to be absent from work. The right to ‘full days’ off work ensures that an employee is able to properly rest and recuperate. To reduce that entitlement to periods measured in hours would mean that employees could finish work one day and return to work the next’; 9

•  ‘The application is not supported by any probative evidence or any cogent submissions’; 10 and

•  ‘The application appears to be motivated by the Applicant’s desire to return to work from her rostered days off sooner than permitted by the SCHDS Award after working a sleepover shift. Her concerns do not appear to be shared by our members. This is an individual matter that could be resolved in some other way, such as an individual flexibility arrangement.’ 11

Health Services Union

[14] The HSU support the submissions of the ASU and in addition submit the following:

•  the proposed change ‘is not necessary to meet the modern awards objective;

•  the Applicant has not provided any probative evidence to satisfy the Fair Work Commission that the variation is necessary;

•  the Applicant’s reasons for making the application are not adequate to justify the proposed changes;

•  the proposed clause goes against the intent of the provision and renders the provision meaningless.’ 12

•  if the provision that the Applicant has drafted were to apply, employees in her position would not be entitled to ‘48 hours rest’. They would be entitled to a period of ‘24 hours’ rest a week, which could be broken up into individual hours of rest if consecutive hours off are not ‘practicable’. It is not clear, therefore, that the outcome of the proposed variation matches the Applicant’s intention in making the Application’; 13 and

•  ‘the Application clearly goes against the intent of the current clause 25.3. As the heading of the clause clearly states, the provision is for Rostered days off. It is not a provision intended to provide ‘hours’ off. By measuring the period of time in ‘hours’ rather than ‘days’ and allowing these to be broken up non-consecutively, the proposed variation would remove the essence of the provision’. 14

United Workers’ Union

[15] The UWU object to the application based on the following:

•  the application changes ‘the requirement that employees covered by the Award must be provided with at least two full days free from duty in each week’;  15

•  ‘The application is not supported by probative evidence or submissions’; 16

•  the variation sought is not consistent with section 134(1) of the Fair Work Act 2009 as it would weaken the safety net; and

•  the application ‘appears to be aimed at a confined set of individual circumstances.’ 17

Amended proposed variation

[16] On 15 June 2020, Ms Abdullah filed an amended proposed clause which, when applied to clause 13.3 of the Exposure Draft, is as follows:

13.3 Rostered days off

(a) An employee, other than a casual employee, will be free from duty for at least:

(i) two full days two periods of 24 hours in each week;

(ii) four full days four periods of 24 hours in each fortnight; or

(iii) eight full days eight periods of 24 hours in each 28 days cycle.

(b) Where practicable, hours off will be consecutive.

Next Steps

[17] The wording of the amended proposed clause filed by Ms Abdullah on 15 June 2020 and wording suggested by AFEI appears to be identical. The Ai Group submitted wording that provided for 24 consecutive hours off work and where practicable, those 24-hour periods are to be consecutive. The NDS position is that any variation ought to be limited to those employees engaged to work sleepover or night shifts. Each of the ASU, HSU and UWU (the unions) oppose the application, raising concerns that the variation sought would reduce the entitlement to full days off work. The unions also submit the application is not supported by any probative evidence or submissions and assert it is an application limited to an individual set of circumstances.

[18] Having reviewed all the submissions, Ms Abdullah filed a submission indicating her endorsement of the NDS position that any variation ought to be limited in scope to those employees engaged to work sleepover or night shifts. Further, Ms Abdullah indicated her support for two options the NDS had proposed:

•  ‘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’;¹⁸ or

•  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.¹⁹

[19] The parties will now have the opportunity to make oral submissions in support of their written submissions. As such, the application is listed for hearing at 12:00pm (AEST) on Wednesday, 27 October 2021.

[20] At this time the parties are to address the amended clause proposed by Ms Abdullah on 15 June 2020 (referred to in paragraph [16] above), the proposal that any variation be limited in scope to those employees engaged to work sleepover or night shifts and the suggestions made in paragraphs [22] and [23] of the NDS submissions dated 9 July 2020, which appear to have been adopted by Ms Abdullah.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR734342>

 1   AFEI Submission, 10 July 2020 at paragraph 11.

 2   AFEI Submission, 10 July 2020 at paragraph 11.

 3   AFEI Submission, 10 July 2020 at paragraph 11.

 4   Ai Group Submission, 10 July 2020 at paragraph 6.

 5   NDS Submission, 10 July 2020 at paragraph 20.

6 NDS Submission, 10 July 2020 at paragraph 22.

7 NDS Submission, 10 July 2020 at paragraph 23.

 8   NDS Submission 10 July 2020 at paragraph 24.

 9   ASU Submission, 13 July 2020 at paragraph 3.

 10   ASU Submission, 13 July 2020 at paragraph 6.

 11   ASU Submission, 13 July 2020 at paragraph 8.

 12   HSU Submission, 14 July 2020 at paragraph 5.

 13   HSU Submission, 14 July 2020 at paragraphs 9–10.

 14   HSU Submission, 14 July 2020 at paragraph 14.

 15   UWU Submission, 14 July 2020 at paragraph 4.

 16   UWU Submission, 14 July 2020 at paragraph 5.

 17   UWU Submission, 14 July 2020 at paragraph 5.

18 NDS Submission, 10 July 2020 at paragraph 22.

19 NDS Submission, 10 July 2020 at paragraph 23, citing the examples of Social and Community Services - Western Australia Award 2002 at clause 20.3, Disabilities Service Award (SA) at clause 6.4 and Social and Community Services Award (SA) at clause 6.8.