Jeffrey Ian Mackay v Focused on Care Pty Ltd
[2022] FWC 3356
•22 DECEMBER 2022
| [2022] FWC 3356 |
| FAIR WORK COMMISSION |
| RECOMMENDATION |
Fair Work Act 2009
s.739—Dispute resolution
Jeffrey Ian Mackay
v
Focused on Care Pty Ltd
(C2022/6825)
| COMMISSIONER SIMPSON | BRISBANE, 22 DECEMBER 2022 |
Alleged dispute about any matters arising under the modern award and the NES; [s146]
On 10 October 2022, Mr Jeffrey Mackay (the Applicant) lodged an application for the Fair Work Commission (Commission) to deal with a dispute in accordance with the dispute settlement procedure in the Social, Community, Home Care and Disability services Industry Award 2010 (Application). The Respondent in the dispute is Focused on Care Pty Ltd (FOC/ the Respondent).
On 25 October 2022, a Conference was held between the Applicant and Respondent. The parties agreed that a Recommendation could be issued.
The Applicant submitted that the SCHADS Award outlines various areas of study that are relevant to the work under the award. The Applicant submitted that he thought it was demeaning and unreasonable for FOC HR to indicate that his study area was not relevant to the work. The Applicant submitted that if FOC don’t believe his area of study is relevant then, by logic, he was employed without any relevant qualification and was never asked to start studying for a Certificate 4 in Disability Support for example.
The Applicant submitted that the supplied Position Description from the Respondent outlines many Key Performance Measures, Values and Supports which operate at a high level. Additionally, that the Key Selection Criteria list provided by FOC list as essential the need for a qualification in Disability, Youth Work, Welfare, Community services, Mental Health or any other related course.
The Applicant submitted that the supplied Seek Advertisement lists qualifications as essential to the role and include ‘any other related course’ and that the main conjecture, was whether a qualification in counselling and family therapy is a relevant qualification.
The Applicant submitted that he fully understood that he wasn’t employed as a counsellor or therapist, but it is the skills and training that was gained through attaining this qualification that are relevant. These are transferable skills and knowledge.
The Applicant submitted that if FOC doesn’t recognise his qualification then (according to their own Position Description and Key Selection Criteria) on what basis was he employed. The Applicant contended that the Directors own statement seems to be dismissive about the company’s Position description. The Applicant submitted that upon interview he was very clear about his qualification and was assured of being remunerated to suit.
The Applicant submitted that of note, the original Seek Advertisement acknowledged that the new service at Warwick would be supporting current residents of Residential Aged Care Facilities. These clients were being transferred from Aged Care, through the NDIS, into Disability Support. The Applicant submitted that he wondered whether it was through this transfer that the original misclassification or assumption of Home Care instead of Disability Support occurred, although the position was advertised as Disability Support.
The Applicant submitted that he believed the real matter at hand here is whether or not the qualification in Counselling and Family Therapy is sufficient in its scope to be considered ‘related’ under the SCHADS Award.
The Respondent submitted that at present under the Award and NDIS there is no requirement to hold a qualification to perform disability support work, however the Award does specify minimum pay rates for those employees who hold a relevant qualification.
The Respondent submitted that Mr Mackay’s qualification, an Advanced Diploma Christian Counselling and Family Therapy, was not a relevant qualification to the role of Disability Support Worker as they do not offer counselling or therapy in this role. While the Respondent acknowledged the Award recognises a range of qualifications to suit a range of roles, Mr Mackay was not employed for these roles. This qualification may have been relevant for another role classified under the award such as a Support Coordinator, Psychological Recovery Coach or Counsellor however the role Mr Mackay applied for and was employed as was Disability Support Worker.
The Respondent submitted that each client under the NDIS comes to them with approved supports they are to provide, these supports include: Access Community Social and Recreational Activities, Transport, Group Activities, Assistance with Self Care Activities.
The Respondent submitted that at no time are they authorised or required to provide counselling or therapy of any kind and they are not a faith-based organisation. If an employee were to go outside these authorised supports and provide a client with therapy or counselling this would contravene the requirements of the position, the NDIS plan and override the existing allied health relationships who already provide this service. For example, if the NDIS deems that a client needs counselling an outside allied health professional performs these services, the only involvement they may have is to coordinate appointments or transport to those appointments.
The usual tasks of a Disability Support Worker as submitted by the Respondent are:
· providing positive support in the areas of life skills (this may include helping someone to cook, make their bed or other daily life tasks);
· day-to-day care, personal care, hygiene, domestic cleaning, meal preparation (this may include showering, assisting to shave, laundry, mopping or vacuuming, assisting or cooking meals etc.);
· management (this includes reporting what happened and escalating to a manager to resolve);
· transport & community access (this may include taking a client shopping, to appointments or to other community activities).
The Respondent submitted that these were outlined in the initial Seek advertisement Mr Mackay applied for. Mr Mackay’s role had no direct reports and required him to work under supervision or general guidance within clearly defined guidelines. Mr Mackay had either an In Home Team Leader (IHTL) or Service Delivery Coordinator (SDC) readily available as his direct supervisor, including after hours on-call. Mr Mackay had no supervisory responsibilities in his role.
The Respondent submitted Mr Mackay was required to perform functions which are defined by established routines, methods, standards and procedures with limited scope to exercise initiative in applying work practices and procedures.
The Respondent submitted that given that Mr Mackay did not hold a relevant qualification, without calculating exactly Mr Mackay’s prior working experience in the industry, they believe the appropriate classification would have been Level 1.3 or 2.1. Under the Award and the NDIS, no specific qualification is required to provide Disability Support Services however usually recognised qualifications include Certificates in Disability, Individual Support and Aged Care. The relevance of these certificates to this role specifically being the hands-on teaching of personal care (hygiene, showering, toileting, other personal care).
The Respondent submitted that as there was a significant amount of back and forth between Mr Mackay and the company regarding the rate, the Director Gavin Dunlop made the exception to pay above award rates which would have been in-line with a relevant Advanced Diploma in good faith. In order to assure the Respondent’s compliance with the award, they also confirmed in writing the level of 2.2 would have been correct for a relevant Advanced Diploma with their external advisors EmploySure. This is in line with the SCHADS award B 2.1 (f) Employees who have completed an appropriate diploma and are required to undertake work related to the diploma will commence at the second pay point of this level and will advance after 12 full-time equivalent months’ satisfactory service.
From this point, the Respondent confirmed they had sought external advice to ensure they were compliant and communicated this with Mr Mackay via email. The company had continued to offer Mr Mackay shifts, however earlier this year Mr Mackay stopped accepting any shifts offered as he was not happy working at the 2.2 pay rate. As time went on and Mr Mackay continued to decline, the Respondent submitted that they didn’t stop offering shifts however any available shifts were accepted by other employees prior to reaching out to Mr Mackay.
The Respondent submitted that there was never an intention by the company to mis-classify. Once they were aware, this issue was rectified and back paid as quickly as operationally possible.
Having considered the respective positions of the parties I am satisfied that the Respondent’s interpretation of the Award provisions is correct, and the Applicant’s qualification is not a relevant qualification for the disability support role he has been engaged to perform. The particular qualification must be relevant to the position in which an employee is engaged in order for it to be relevant to that employee’s appropriate classification and pay point level under the Award. The qualification in Counselling and Family Therapy is not such a qualification for the position the Applicant had been engaged in by the Respondent under the Award.
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