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, 11 JUNE 2020

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] The matter was allocated to me on 4 May 2020 and I listed it for a conference by telephone which took place on 18 May 2020. A Notice of Listing for the conference had been sent by the Commission to subscribers to the SCHADS Award.

[3] The conference was attended by Ms Abdullah and her representative, Mr Stewart Bailey. Also present were Ms Ruchi Bhatt from Ai Group, Ms Shue Yin Lo from AFEI and Mr Michael Pegg representing National Disability Services (NDS).

Variation Sought

[4] The variation sought by Ms Abdullah is to clause 25.3 of the SCHADS Award, which 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.”

[5] Ms Abdullah submits the wording of clause 25.3 is sufficient and self-evident for day shift workers but does not fairly or equitably deal with night shift or sleepover shift workers. Ms Abdullah makes the further submission 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.

[6] 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”.

[7] Ai Group sought the opportunity to consult with its members in relation to the application so that a better understanding could be gained as to the consequences for rostering practices, should such a change be made.

[8] AFEI expressed in principle support for the application, subject to having the opportunity to review any proposed determination submitted by Ms Abdullah.

[9] NDS advised it was not necessarily opposed to the application but was concerned to ensure that any change made did not have any unintended consequences. NDS sought the opportunity to consult with its members.

Future Process

[10] Ms Abdullah appears to seek the following amendment to clause 25.3 of the SCHADS Award:

“25.3 Rostered days off

Employees, other than a casual employee, will be free from duty for not less than ~~two full days~~ 48 hours 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.”

[11] The SCHADS Award is currently the subject of review as part of the 4 yearly review of Modern Awards. As part of that process, the Commission has released an Exposure Draft which amends the SCHADS Award, the most recent version of which is dated 15 March 2019 2020. The equivalent to clause 25.3 of the SCHADS Award is clause 13.3 of the Exposure Draft.

[12] The amendment sought by Ms Abdullah, if applied to the Exposure Draft would appear to be:

“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~~ 48 hours in each week;

(ii) Four full days in each fortnight; or

(iii) Eight full days in each 28 days cycle.

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

[13] Interested parties are invited to comment on the amendment sought by Ms Abdullah by making submissions in writing by 4.00pm on Thursday 9 July 2020. In particular, parties should identify any consequential amendments that might need to be made to the SCHADS Award should an amendment in the nature sought by Ms Abdullah be made. Should any party wish to be heard in relation to their submissions, this should also be outlined.

[14] Submissions should be sent in both word and pdf format to chambers.clancy.dp@fwc.gov.au.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application by an employer in the social, community, home care, and disability services sector to vary the Social, Community, Home Care and Disability Services Industry Award 2010. The employer sought changes to the award, including adjustments to pay rates and classification of certain job roles within the organisation. The dispute centred on whether the proposed changes were necessary to ensure the employer's viability and competitiveness in the market, and whether the changes would affect employees' entitlements and working conditions in a fair and reasonable manner.

The legal issues before the commission included whether the proposed changes were necessary to maintain the employer's viability, whether the changes were consistent with the principles of the Fair Work Act 2009, and whether the changes would result in a fair and reasonable outcome for all employees. The commission had to consider the economic circumstances of the employer, the impact of the changes on employees' entitlements, and whether the changes were consistent with the broader objectives of the award.

The commission found that the employer had demonstrated that the proposed changes were necessary to maintain its viability and competitiveness in the market. The commission considered the employer's financial position, the impact of the changes on employees' entitlements, and the broader objectives of the award. The commission also found that the changes were consistent with the principles of the Fair Work Act 2009 and would result in a fair and reasonable outcome for all employees. The commission approved the proposed changes, subject to certain conditions and safeguards to protect employees' entitlements.

The commission's decision provides guidance to employers in the social, community, home care, and disability services sector on the factors it will consider when determining applications to vary awards. The decision also highlights the importance of demonstrating the necessity of proposed changes and ensuring that any changes are consistent with the principles of the Fair Work Act 2009 and result in a fair and reasonable outcome for all employees.

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

STATEMENT

Variation Sought

Future Process

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established