Steven Secker - [2025] FWCFB 67

[2025] FWCFB 67

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.158—Application to vary or revoke a modern award

Steven Secker

(AM2023/11)

VICE PRESIDENT ASBURY
DEPUTY PRESIDENT DEAN
COMMISSIONER ALLISON

BRISBANE, 31 MARCH 2025

Application to vary a modern award – Social, Community, Home Care and Disability Services Industry Award 2010 – travel allowance – application dismissed.

Overview

Mr Steven Secker (Applicant) applies under s.158 of the Fair Work Act 2009 (Act) to amend the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award). The Applicant seeks to vary clause 20.7 of the SCHADS Award, which deals with travelling, transport and fares. We are satisfied that at the time the application was made the Applicant was an employee covered by the SCHADS Award and had standing to make the application consistent with s.158(1)(a).

The Applicant is employed as a support worker by an entity that undertakes what the Applicant describes as aged and disability care services. The Applicant provides services to clients in private residences and is required to use his own vehicle to attend those residences. The Applicant states that he is usually based at his own residence, and travels from there, in his own vehicle, to attend the residence of his first client, where he commences work. At the conclusion of his attendance at the residence of his last client, the Applicant ceases work and travels to his own residence. The Applicant contends that this arrangement is common among employees providing aged and disability care services.

Clause 20.7 of the SCHADS Award, provides inter alia for a per kilometre allowance payable to employees required and authorised by their employer to use their private motor vehicles in the course of their employment. The clause does not provide for payment of the per kilometre motor vehicle allowance for travel from the residence of an employee to the residence of their first client, or from the residence of the employee’s last client to the employee’s residence. Further, the SCHADS Award does not entitle employees to be paid for time spent traveling between the employees’ residence and the residences of the first and last client. The SCHADS Award also allows for the working of broken shifts, whereby shifts are broken into two or three periods of work, punctuated by unpaid breaks, other than a meal break, subject to provisions concerning allowances for broken shifts, afternoon shifts and night shifts and minimum payments and payment periods. The application also seeks to vary the SCHADS Award with respect to the entitlement of employees working broken shifts to be paid for time spent travelling to a client’s residence during the break between work periods in a broken shift where the payment for that time would exceed the broken shift allowance prescribed by the SCHADS Award.

The variations proposed by the Applicant to clause 20.7 of the SCHADS Award are the inclusion of provisions for: travelling time and distance to be calculated by an agreed method; reasonable time taken travelling to and from clients to be considered as work time; and the circumstances where deviations causing additional travel time or distance will be paid. The Applicant states that he mainly works from his home office and does not regularly attend the employer’s business. The premise of the application is the contention that travel from the Applicant’s home to a client’s residence is part of the workday and while he is reimbursed for travel costs between client residences, he is not reimbursed for travel costs between his home and the first client’s residence and from the last client’s residence to his home.

The grounds on which the Applicant relies in support of the amendments to the SCHADS Award that he seeks, and which further elucidate the purpose of those amendments, can by summarised as follows:

Employees who use their own cars to travel to clients’ homes are reimbursed for travel costs, but not for those associated with travel from the employee’s home to the home of their first client.
Clause 20.7 of the SCHADS Award specifies an amount of compensation for use of the employee’s vehicle and does not refer to the employee being paid for travel to the first client’s residence and from the last client’s residence.
Employees should be paid the vehicle allowance in clause 20.7 for travel from the employee’s residence to the first client’s residence and from the last client’s residence to the employee’s residence.
The amendments are intended to establish an acceptable method of calculating time and distance to be paid to employees.
If the payment for travel immediately after a broken shift would exceed the broken shift allowance the employee should be paid for the travel but not the broken shift allowance.

When the amendments to the SCHADS Award proposed by the Applicant are read in conjunction with the grounds set out in the application, it is apparent that the Applicant is seeking the following outcomes:

Payment of the per kilometre motor vehicle allowance in clause 20.7(a) of the SCHADS Award for travel undertaken by employees from their residences to the residence their first client.
Payment of the per kilometre motor vehicle allowance in clause 20.7(a) of the SCHADS Award for travel from the residence of the employee’s last client to the employee’s residence.
Payment for the time spent travelling from the employee’s residence to the residence of the first client, and from the residence of the employee’s last client to the employee’s residence.
Payment of the per kilometre motor vehicle allowance and payment of time spent travelling, during a break between separate periods of work, where employees are working a broken shift or payment of the broken shift allowance, whichever is greater.

Procedural history

The application was made on 15 May 2023. In the course of the matter, submissions were received from the following interested parties:

· The Applicant;[1]
· Australian Business Industrial (ABI), Business NSW and the Aged & Community Care Providers Association (ACCPA), collectively referred to herein as ‘ABI’;[2] and
· Australian Industry Group (Ai Group).[3]

A directions hearing was held by the President on 15 June 2023. At the directions hearing, the Australian Services Union (ASU) and the United Workers Union (UWU), as interested parties to the application, sought further information regarding the Applicant’s application and time to consult with their members. Ai Group opposed the variations and, together with ABI, suggested that the Applicant file a draft determination or propose a specific variation. Directions were issued on 19 June 2023 to that effect. On 27 July 2023, the Applicant filed an amended application containing his proposed variation to clause 20.7(a).

A further directions hearing was held on 10 August 2023. The ASU and UWU did not object to the Applicant’s proposed changes to clause 20.7(a) while Ai Group and ABI continued to oppose the application. Ai Group and ABI also observed that travel entitlements under the Award were considered extensively during the 4 yearly review.[4] Changes similar to those sought by the Applicant were considered but not made by the Full Bench on the basis that other variations in relation to minimum payment periods and broken shift allowances were being introduced to address the travel-related issues raised during the proceedings.

Directions were issued on 17 August 2023 requiring the Applicant and any party supporting the application to file any submissions and evidence upon which they wished to rely. Parties opposing the application were also directed to file an outline of submissions and any evidence on which they wished to rely in opposition to the application.

On 30 October 2023, the Applicant filed his written submissions and a letter of a support from retired support worker, Ms Cheryl Thomas, dated 19 October 2023. At a further directions hearing on 14 November 2023, the ASU and UWU advised that they would not seek to lodge any submissions. In accordance with Directions issued on 14 November 2023, ABI and Ai Group filed their written submissions on 20 December 2023. Subsequently, Mr Secker filed his written submissions in reply on 17 January 2024. The parties’ submissions in relation to the proposed variation are summarised below. The parties subsequently agreed that the matter would be determined based on the material filed without the need for an attendance hearing. In accordance with s. 617(8) of the Act, the matter has been dealt with by a care and community sector expert panel.

Relevant SCHADS Award provisions and proposed amendments

Clause 20.7 of the SCHADS Award, the subject of the application, provides as follows:

20.7 Travelling, transport and fares
(a)Where an employee is required and authorised by their employer to use their motor vehicle in the course of their duties, the employee is entitled to be reimbursed at the rate of $0.96 per kilometre.

(b)When an employee is involved in travelling on duty, if the employer cannot provide the appropriate transport, all reasonably incurred expenses in respect to fares, meals and accommodation will be met by the employer on production of receipted account(s) or other evidence acceptable to the employer.

(c)Provided that the employee will not be entitled to reimbursement for expenses referred to in clause 20.7(b) which exceed the mode of transport, meals or the standard of accommodation agreed with the employer for these purposes.

(d)An employee required to stay away from home overnight will be reimbursed the cost of reasonable accommodation and meals. Reasonable proof of costs so incurred is to be provided to the employer by the employee.”

The Applicant proposes to insert the following at the end of subclause 20.7(a):
(i)[T]ravel is to be calculated using Google mapping, or an equivalent product agreed to by both the employer and its employees, subject to all employees of the same service provider being treated the same way, allowing for the shortest or quickest route from the employee's base (or the employer's office), to first client, from each client to each subsequent client, and from the last client to the employee's base (or the employer's office).
(ii)Reasonable time taken travelling to and from clients is considered work time as the employee's contract is with the employer, not with the employer's client, and entails travelling to the clients and returning to base after providing services for all scheduled clients on that day.
(iii)[D]eviations causing extra travel time or distance will only be paid when authorised by the employer.
Also relevant to the application are the following provisions of the SCHADS Award. Clause 25 deals with ordinary hours of work and rostering. Clause 25.1 provides as follows, with respect to ordinary hours of work:

25.1 Ordinary hours of work
(a)The ordinary hours of work will be 38 hours per week or an average of 38 hours per week and will be worked either:

(i) in a week of five days in shifts not exceeding eight hours each;
(ii) in a fortnight of 76 hours in 10 shifts not exceeding eight hours each; or
(iii)in a four week period of 152 hours to be worked as 19 shifts of eight hours each, subject to practicality.

(b) By agreement, the ordinary hours in clause 25.1(a) may be worked up to 10 hours per shift.

Clause 25.2 of the SCHADS Award provides for span of hours and that the ordinary hours of work for a day worker are worked between 6.00 am and 8.00 pm Monday to Sunday while shift workers work shifts in accordance with clause 29, which provides for afternoon, night and public holiday shifts and allowances. Relevantly, clause 29.4 requires that shifts are to be worked in one continuous block of hours, that may include meal breaks and sleepovers, except where they are “broken” in accordance with clause 25.6.

Clause 25.6 provides for broken shifts and is in the following terms:

25.6 Broken shifts

This clause only applies to social and community services employees when undertaking disability services work and home care employees.
(a)Broken shift with 1 unpaid break
(i)An employer may only roster an employee to work a broken shift of 2 periods of work with 1 unpaid break (other than a meal break).
(ii)An employee rostered to work a broken shift with 1 unpaid break must be paid the allowance in clause 20.12(a).

(b)Agreement to work a broken shift with 2 unpaid breaks
(i) Despite clause 25.6(a) , an employer and an employee may agree that the employee will work a broken shift of 3 periods of work with 2 unpaid breaks (other than meal breaks).
(ii) An agreement under clause 25.6(b)(i) must be made before each occasion that the employee is to work a broken shift with 2 unpaid breaks unless the working of the 2 break broken shift is part of the agreed regular pattern of work in an agreement made under clause 10.3 or subsequently varied.
(iii) An employee who works a broken shift with 2 unpaid breaks must be paid the allowance in clause 20.12(b).

(b)Where a break in work falls within a minimum payment period in accordance with clause 10.5 then it is to be counted as time worked and does not constitute a break in a shift for the purposes of clause 25.6(a)(i) or clause 25.6(b)(i).
(c) Payment for a broken shift will be at ordinary pay with weekend, overtime and public holiday penalty rates to be paid in accordance with clauses 26 — Saturday and Sunday work , 28 — Overtime and penalty rates and 34 — Public holidays.
(d) An employee must be paid the shift allowances in accordance with clause 29 — Shiftwork in relation to work performed on a broken shift, provided that:
(i) The shift allowances are only payable in respect of periods of work in a broken shift that satisfy the definitions of afternoon shift, night shift and public holiday shift (as defined by clause 29.2 and in accordance with clause 25.6(e)(i).
(ii) The night shift allowance is not payable for work performed on a night shift that commences before 6.00 am.

Example: If an employee performs work on a broken shift from 9.00 am to 11.00am (first period of work) and then from 5.30 pm to 8.30 pm (second period of work), the afternoon shift allowance will be payable on the second period of work only.
(e) The span of hours for a broken shift is up to 12 hours. All work performed beyond a span of 12 hours will be paid at double time.
(f) An employee must receive a minimum break of 10 hours between broken shifts rostered on successive days.”

By virtue of clause 27.1(a) of the SCHADS Award, employees who work in excess of five hours are entitled to a meal break of not less than 30 minutes and not more than 60 minutes duration, to be taken at a mutually agreed time after commencing work. Clause 27.1(b) provides that an employee required to work through a meal, and continuously thereafter, is entitled to be paid overtime rates for all time worked until the meal break is taken. Clause 27.2 provides that where an employee is required to have a meal with a client or clients as part of a normal work routine or client program, they are paid for the duration of the meal period at the ordinary rate of pay, the paid meal period counts as time worked, and clause 27.1(a) requiring a meal break to be taken after an employee works in excess of five hours, does not apply.

It is also relevant to set out the SCHADS Award provisions relating to employment categories as matters concerning the application of travel allowance and broken shifts may impact on the employment categories differently. Clause 10.1 establishes three categories of employment: full-time, part-time or casual. Clause 10.2 defines a full-time employee as one who is engaged to work 38 hours per week or an average of 38 hours per week. Clause 10.3 defines a part-time employee as one who is engaged to work for less than 38 hours per week, or an average of less than 38 hours per week, and has reasonably predictable hours of work. Clause 10.3 also requires agreement to be reached between the employer and a part-time employee on a regular pattern of work including the number of ordinary hours to be worked each week and the days on which those hours will be worked. The clause also establishes a process for agreement on changes and for a review if the part-time employee regularly works in excess of those hours. Clause 2.3 provides that casual employees are paid 1/38^th of the appropriate weekly rate and a loading of 25% but does not otherwise regulate hours of work for casual employees. However, casual employees are entitled to be paid overtime for hours in excess of 38 per week and 76 per fortnight (clause 28.1(b)(i)) and in excess of 10 hours per day clause 2 (clause 28(b)(ii)).

Clause 10.5 provides the minimum payments for part-time and casual employees as follows:

“10.5 Minimum payments for part-time and casual employees
Part-time and casual employees will be paid for the following minimum number of hours, at the appropriate rate, for each shift or period of work in a broken shift:
(a)social and community services employees (except when undertaking disability services work)—3 hours;

(b) all other employees—2 hours.”

Clause 20 outlines the available allowances under the Award. The current monetary amounts of work-related allowances are contained in the Allowances Sheet for the Award. We have set out the provisions of clause 20.7 relating to motor vehicle allowance above. Clause 20.12 provides for a broken shift allowance as follows:

“20.12 Broken shift allowance
(a)An employee required to work a broken shift with 1 unpaid break in accordance with clause 25.6(a) will be paid an allowance of 1.7% ($19.39) of the standard rate, per broken shift.

(b)An employee who agrees to work a broken shift with 2 unpaid breaks in accordance with clause 25.6(b) will be paid an allowance of 2.25% ($25.67) of the standard rate, per broken shift.”

4 Yearly Review of the SCHADS Award

It is generally accepted by the parties that travel-related entitlements under the SCHADS Award were considered by a Full Bench of the Commission during the 4 yearly review of that Award conducted in 2020 – 2021. Both Ai Group and ABI oppose the Applicant’s proposed variations on grounds including that the issues he seeks to remedy were already extensively considered and dealt with during the 4 yearly review, and a case for further varying the provisions of the Award dealing with travel has not been made out. The Applicant contends that his proposed variation addresses issues that were not resolved in the 4 yearly review, and that his application is the further review of the travel provisions foreshadowed by the Full Bench in its October 2021 Decision, which was not conducted. It is necessary that we consider the 4 yearly review proceedings with respect to provisions of the SCHADS Award relating to travel and broken shifts, in some detail.

At the time the 4 yearly review was conducted, the SCHADS Award contained the following provision at clause 20.5:

20.5 Travelling, transport and fares
(a)     Where an employee is required and authorised by their employer to use their motor vehicle in the course of their duties, the employee is entitled to be reimbursed at the rate of $0.80 per kilometre.
(b)    When an employee is involved in travelling on duty, if the employer cannot provide the appropriate transport, all reasonably incurred expenses in respect to fares, meals and accommodation will be met by the employer on production of receipted account(s) or other evidence acceptable to the employer.
(c)     Provided that the employee will not be entitled to reimbursement for expenses referred to in clause 20.5(b) which exceed the mode of transport, meals or the standard of accommodation agreed with the employer for these purposes.

(d) An employee required to stay away from home overnight will be reimbursed the cost of reasonable accommodation and meals. Reasonable proof of costs so incurred is to be provided to the employer by the employee.

That provision, in identical terms, is now found at clause 20.7 of the SCHADS Award. During the 4 yearly review proceedings, the ASU and UWU sought to insert a new term into the SCHADS Award in relation to payment for time spent travelling, as follows:

“25.7 Travel time

(a)Where an employee is required to work at different locations they shall be paid at the appropriate rate for reasonable time of travel from the location of the preceding client to the location of the next client, and such time shall be treated as time worked. The travel allowance in clause 20.5 also applies.

(b)This clause does not apply to travel from the employee’s home to the location of the first client nor does it apply to travel from the location of the last client to the employee’s home.’”

The Health Services Union (HSU) also sought two variations to the Award. Firstly, the HSU sought a payment for travel undertaken during a break in a broken shift as follows:

“25.6 Broken shifts

(d)Where an employee works a broken shift, they shall be paid at the appropriate rate for the reasonable time of travel from the location of their last client before the break to their first client after the break, and such time shall be treated as time worked. The travel allowance in clause 20.5 also applies.”

Secondly, the HSU sought to vary the travel allowance for disability support workers and home care workers as it then was in clause 20.5(a) (now clause 2, by inserting the underlined text:

“(a)Where an employee is required and authorised by their employer to use their motor vehicle in the course of their duties, the employee is entitled to be reimbursed at the rate of $0.78 per kilometre. Disability support workers and home care workers shall be entitled to be so reimbursed in respect of all travel:

(a) from their place of residence to the location of any client appointment;
(b) to their place of residence from the location of any client appointment;
(c)between the locations of any client appointments on the basis of the most direct available route.”

During the 4 yearly review the Unions also advanced claims to introduce new minimum payment periods, extend existing minimum payment periods and introduce various restrictions on the working of broken shifts. These claims, together with the unions’ proposed variations in respect of travel, were opposed by employer organisations including Ai Group and ABI. However, ABI submitted that if the Commission found that the existing broken shift clause did not meet the modern award objective of providing a fair and relevant minimum safety net of conditions, an alternative approach should be adopted by providing for an allowance dealing with the issue of unpaid travel time in the gaps between portions of work in a broken shift, as had been the practice in pre-reform awards.

Five days of hearings were conducted from October 2019 to July 2020 in respect of the proposed variations. Submissions were filed in November 2019, February 2020 and March 2020. During this time, the Commission published multiple Background Papers. A Background Paper was published on 4 March 2020, setting out the submissions and evidence relevant to the travel time claims. Appendix E to the May 2021 Decision shows that some 23 witnesses gave evidence in relation to the travel time claims and 30 witnesses gave evidence in relation to the broken shift claims. In addition, there were four expert reports. Following the hearing, the Full Bench handed down its decision in relation to these claims on 4 May 2021, in 4 yearly review of modern awards—Social, Community, Home Care and Disability Services Industry Award 2010—Substantive claims [5] (the May 2021 Decision). The May 2021 Decision in relation to broken shifts and travel claims was informed by some four expert reports and the evidence of some 30 witnesses.

At paragraph [232] of the May 2021 Decision, the Full Bench made the following findings about working arrangements generally in the SCHADS sector:

Short shifts or engagements are a very common feature in the home care and disability services sectors. Some employees are engaged for only 30 minutes and in some instances for only 15 minutes.
Broken shifts are commonly utilised by employers covered by the SCHADS Award and there is a very high incidence of broken shifts in the home care and disability services sectors.
The length of an engagement that forms part of a broken shift can vary from 15 minutes to 7 hours and there is significant variation in the duration of the break period.
Most employees are not paid for time spent travelling to and from clients, (which includes travelling between clients and travelling to the first client and from the last client).
The combination of unpaid travel time, broken shifts and short engagements can result in a significant amount of ‘dead time’ for employees, that is, time spent travelling without payment or time spent waiting between broken shifts.
Employees report a range of adverse consequences with working broken shifts with short engagements and unpaid travel time, in particular:
·they interfere with the employee’s time with family and friends, with their hobbies or with their involvement in the community
·broken shifts and short engagements mean a longer span of hours to make the same money they would make if they were rostered continuously. The span of hours may be 12 hours, but the employee is only paid for 4 to 5 hours work; this can be very tiring
·short engagements are not worth the time and cost involved
·home care employees can be required to travel significant distances, the travel time is unpaid, and it is uneconomical to work, and
·broken shifts can be ‘very disruptive’; an employee may ‘need to sit around for 2-3 hours waiting for a shift to start that only lasts for 15 minutes’. (footnotes omitted).

In relation to broken shifts, the Full Bench reiterated its finding that broken shifts are a common feature of the home and disability services sectors and went on to find that broken shifts: mostly involve two portions of work and one break; cover a significant span of hours (up to 12) including a substantial amount of unpaid time; and have a significant variation in break periods with some involving breaks of less than one hour and others a break period of 6 – 8 hours. The Full Bench said in relation to breaks:

“During breaks in a broken shift, employees sometimes spend time at home or undertaking non-work related activities. On other occasions a considerable proportion of the period of the break is used in undertaking unpaid travel or the duration of the break is insufficient to enable the employee to engage in other meaningful activity.”[6]

At paragraph [584] of the Decision, the Full Bench made the following general findings based on the evidence:

1.Employees in home care and certain work in disability services have no ‘base location’ where they start and finish each day. A key feature of the duties of such employees is the provision of services in the clients’ homes or other sites at the direction of the employer.
2.Home care workers and many disability services support workers are required to travel to various locations to provide services to clients.
3.Time spent by employees travelling varies depending on which clients they support on any given day and where they reside, and a range of factors may affect how long it takes an employee to travel from one location to another on any given day.
4.Most employees are not paid for time spent travelling to and from clients, (which includes travelling between clients and travelling to the first client / from the last client). Some employees covered by the Award can be travelling to and from clients for significant periods of time without payment.
5.There are a range of practices adopted by some employers to remunerate employees in respect of time spent travelling.
6.As mentioned earlier, employees report a range of adverse consequences with working broken shifts with short engagements and unpaid travel time (see finding 6 above at [232]).”

The Full Bench acknowledged that the issues in relation to minimum engagement, broken shifts and travel time were inter-related.[7] The Full Bench did not grant the Union claims in relation to these matters, and instead, expressed a provisional view that the SCHADS Award should be amended by:

Introducing a minimum engagement for part-time and casual employees of three hours minimum pay for social and community service employees (except when undertaking disability work) and two hours’ minimum pay for all other employees;
Defining a broken shift as a shift consisting of 2 separate periods of work with a single unpaid “break” other than a meal break;
Introducing an option for a broken shift with two unpaid breaks by agreement between the employer and the employee; and
Establishing allowances for broken shifts, calculated as percentages of the standard hourly rate, with a two-break shift being subject to a higher allowance in recognition of the additional disutility relative to a single break shift.

The Full Bench observed that the proposed changes would “likely result in changes to rostering practices and to how work is organised” and “may also change the extent of ‘unpaid’ travel between engagements”.[8] Further, the broken shift allowance would compensate for the disutility of: “the length of the working day being extended because hours are not worked continuously”; and “the additional travel time and cost associated with effectively presenting for work on 2 occasions”.[9] At paragraph [588], the Full Bench said:

“As a general proposition we accept that employees should be compensated for the time spent travelling between engagements. But framing an award entitlement to address this issue raises several issues, including the circumstances in which any payment is to be made and the calculation of that payment. We are also conscious of the s.134 considerations, in particular:
· the needs of the low paid
· the impact on employment costs and the regulatory burden, and
· the need to ensure that any provision is simple and easy to understand.”

Significantly for the present case, in relation to the interaction between broken shifts and minimum payments, the Full Bench said:

“Clause 25.6 will also be varied to make clear that where a break in work for an employee (whether it be travel time or ‘dead time’) falls within a minimum payment period, then it is to be counted as time worked and does not constitute a break in the employee’s shift for the purposes of clause 25.6.”[10]

Following the May 2021 Decision, the Full Bench determined that the issue of travel time required further consideration and convened a conference of the parties on 27 May. In a subsequent decision issued on 25 August 2021[11] (the August 2021 Decision), the Full Bench reiterated the findings it made at paragraph [584] of the May 2021 and set out the variations it had decided to implement in relation to minimum payments for part-time and casual employees and the definition of broken shifts, and went on to observe that:

[228] In the May 2021 Decision we accepted, as a general proposition, that employees should be compensated for the time spent travelling between engagements, but noted that framing an award entitlement to address this issue raised several issues, including the circumstances in which any payment is to be made and the calculation of that payment. 70 We concluded that this issue required further consideration and said that a conference would be convened to discuss the next steps.
[229] At the conference held on 27 May 2021, the President noted that since the various claims with respect to travel time were made the circumstances have changed in that we have decided to vary the minimum payments term and the broken shifts term. The President observed that:
‘once the changes are made around minimum engagement and broken shifts and they’ve operated for a period, that parties have liberty to have the matter called back on and can pursue a particular outcome in relation to travel time.’

We endorse these remarks. It seems to us that it is likely that employers will seek to change rosters and patterns of work in response to our decisions in respect of minimum payment periods and broken shifts. These changes may well reduce the incidence of unpaid travel time.
[230] We have decided to defer further consideration of the various travel time claims until the variations in respect of minimum payment periods and broken shifts have been in operation for 12 months.” (footnotes omitted)

In a further decision issued on 18 October 2021 (the October 2021 Decision), the Full Bench addressed the final outstanding issues, including the quantum of the broken shift allowance. Relevantly, the Full Bench observed that:

[243] There is one final matter we wish to mention regarding the quantum of broken shift allowances we have determined.
[244] In the August 2021 Decision we decided to defer further consideration of the various travel time claims until the variations in respect of minimum payment periods and broken shifts had been in operation for 12 months. There is an interrelationship between the remuneration for broken shifts and travel time. In setting the broken shift allowances, we have taken into account the additional travel time associated with effectively presenting for work on 2 occasions. It follows that if the SCHADS Award is subsequently varied to provide a payment for travel time, the quantum of the broken shift allowances may require downward adjustment.”

Submissions in the present case

Applicant

The Applicant claims that employees using their own cars to travel between their home and a client’s premise are not reimbursed for those travel costs under clause 20.7 of the Award, which does not refer to the Applicant being paid for travel from his home to the first client’s premise at the start of the day and travel from the last client’s premise to his home at the end of the day, on the basis that such travel is not within the ordinary course of his employment. It is the Applicant’s submission that this travel should attract the kilometre reimbursement in clause 20.7(a) as the travel is for work purposes and a legitimate expense incurred in the performance of work. It is not a fringe benefit in the way travel to and from the office would be for an office worker.

The amendments to clause 20.7(a) proposed by the Applicant are intended to provide a method of calculating the time and distance to be paid to employees for travelling during the course of their duties. The Applicant also claims that travel following a broken shift is work-related and the travel allowance prescribed by clause 20.7 should apply. The Applicant states that the broken shift allowance prescribed by clause 20.12 does not adequately compensate employees for the time and costs associated with travelling between clients during a broken shift.

In support of his claims, the Applicant states that he is a support worker employed by a service provider based in Perth who provides support to aged and disability care clients. The Applicant asserts that support workers employed by the same service provider as him, and other support workers in the industry, are required to use their own cars to drive to each client’s premise to provide their services. Unless the Applicant is required to obtain basic supplies like masks and gloves from the employer’s business, the Applicant travels directly from his home office to the client’s premise. The Applicant states that if he and his colleagues were required to attend the employer’s office at the beginning and end of the workday to be reimbursed for travel to and from home, there would be a risk of injury and creation of unnecessary congestion in the employer’s car park.

It is the Applicant’s understanding that he is not paid for travel between his home and a client’s premise because such travel is not considered to be “in the course of employment”. The Applicant contends that his travel costs to the first client and home after the last client is a legitimate expense incurred in the performance of his work. The Applicant relies on a letter from a colleague, Ms Thomas dated 19 October 2023, to support his assertion that it is a safety issue when travel to the first client and travel from the last client is not considered part of the employee’s work, as an employee would not be covered by workers compensation for that time. The contents of Ms Thomas’ letter states as follows (salutations omitted):

“I am writing this letter in support of my colleague applying for a class action against the company he is employed by for travel reimbursement to and from his first and last clients each day.

As it is now, he only gets paid once he arrives at his first client and for the rest of the day until he finishes his last client and then no travel time on the way home.

The issue with this, if he was to have an accident going or coming home from his clients, he is not covered by workers compensation or insurance through his company. Although he has a home office and travels to his first client from there this rule still applies going to his first client, but it is as though he is going from his company’s office to his first client – on this basis he should be paid and covered by insurance under a safety factor.

The people involved in this class action only want a fair go.”

The Applicant also asserts that when Centrelink assesses reportable income, it excludes reimbursements made by the employer for travel between clients. However, as employers do not pay for the cost of travel to the first client and from the last, Centrelink is unable to assess the travel costs as a deduction.

The Applicant acknowledges the findings of the Full Bench in the 4 yearly review of modern awards—Social, Community, Home Care and Disability Services Industry Award,[12] which repeated the findings made in the May 2021 Decision, including the connection between minimum payments, broken shifts and travel time. The Applicant contends that his proposed variations to the Award will address “problems” associated with the Full Bench’s findings (set out above) by providing a simple method for calculating times and distances which the worker is required to cover, and by allowing flexibility if workers and their employers agree on an alternative method.

The Applicant provided two examples said to illustrate the serious negative impact of clause 20.7 of the SCHADS Award. The first example involved the Applicant being asked to attend a client some distance from his home, and then a second client close to the first client, with no following visit to complete. The Applicant said that by the time he factored in the unreimbursed cost of travel both ways, on his calculations he would have worked three hours for about $0.03. The Applicant did not provide the basis for this calculation. The second example was the Applicant being required to call into the office after the last client for the day, to pick up supplies and new uniform shifts. While this would normally be considered as legitimate paid travel, time and distance to the office, though not home from the office, the Applicant was not paid because there was no systematic way of recording such visits.

In relation to the claim about travel costs associated with working a broken shift, the Applicant contends that the travel allowance should be paid for travel between each period of work in a broken shift. It is the Applicant’s understanding that the Award contemplates the payment of the travel allowance where the break between periods of work is less than the minimum period for payment, being 120 minutes. However, the Applicant contends that there are circumstances where the travel time between periods of work is within the minimum period and so the broken shift allowance is paid but not the travel allowance. It is the Applicant’s fundamental position that an employee should not be expected to bear the cost of running their vehicle for work purposes.

ABI, Business NSW and ACCPA (collectively referred to as ‘ABI’)

ABI opposes the variation sought by the Applicant on the basis that it is not necessary to achieve the modern awards objective. ABI considers that the variation is not appropriate in the context of a minimum safety net instrument that applies to a wide range of sectors and working practices. Further, as was the case during the 4 yearly review proceedings between 2015 and 2022, ABI considers that there is not sufficient evidentiary or merit basis to depart from the factual findings, conclusions or reasoning expressed by the Full Bench in those proceedings.[13]

If the Commission varies the Award (either in the manner sought or in a similar way), ABI considers that it is necessary for the quantum of the broken shift allowance to be reduced, given that part of its purpose is to compensate employees for the time and inconvenience of attending for work twice. In relation to any changes to the Award that lead to increased costs for employers, ABI submits that it must be subject to appropriate transition or deferral arrangements to ensure the added cost is properly funded as there is a high level of reliance on government funding in the sector.

ABI opposes the Applicant’s proposed variations on five grounds:

· Firstly, as a matter of construction, the Award does not currently entitle employees to receive payment for time spent travelling outside of their working hours, or to receive the kilometre reimbursement allowance under clause 20.7(a) when travelling from home to their first location or from their last work location to home.
· Secondly, as a matter of merit, in ABI’s view, the variations are not necessary to achieve the modern awards objectives.
· Thirdly, there is an absence of any real probative evidence that would enable the Commission to conclude that the variation is necessary within the meaning of s. 157(1), or that the variations made in 2022 have been ineffective.
· Fourthly, to the extent that the Commission is minded to vary the Award (either in the manner sought or in a similar way), the broken shift allowance will need to be reconsidered and it will likely be necessary for the quantum of that allowance to be reduced. Further, the impact of any such reduction in the allowance on other sectors covered by the Award will also need to be considered.
· Fifthly, given the high level of reliance on government funding in the sector, any change to the Award that leads to increased costs for employers must be subject to appropriate transition or deferral arrangements to ensure the added cost is properly funded.

In relation to the Applicant’s proposed insertion of clause 20.7(a)(ii) which states that time spent travelling to and from clients should be considered to be “work time”, ABI submits that this triggers an obligation on employers to pay employees at the applicable hourly rate of pay for that time. If the travel time is intended to be “work time”, ABI contends that this will have flow-on effects to other Award provisions which are effected by an employee’s hours of work.[14] Alternatively, if the travel time should be deemed or treated as work time for particular purposes, ABI submits that converting “non-work time” to work time may affect areas such as work, health and safety and workers compensation. ABI also asserts that it will impact on an employee’s regular pattern of work (under clause 10.3(c)) and require consultation about changes to hours of work (under clause 8A).

ABI also opposes the insertion of clause 20.7(a)(ii) as it requires assumptions to be made in relation to where an employee commences work, the relevant road and traffic conditions remaining stable or predictable, and individual driving practices. Further, ABI submits that the proposal raises practical considerations such as what happens if an employee engages in misconduct or is injured during the “work time” and what implications are there if that time is captured by the government-imposed limitations on charges employers can pass onto consumers in relation to travel costs under the NDIS rules and regulations or Home Care Package program.

In ABI’s view, it is also unclear whether the proposed variation applies to all employees covered by the Award or certain employees (e.g. home care employees or employees whose role involves travelling to various client engagements). ABI submits that the proposed variation extends beyond a fair and reasonable minimum safety net of terms and conditions, would impose significant additional costs for employers, have a significant flow-on effect on ordinary hours of work, overtime and shift loadings and create significant additional regulatory and administrative burden on employers. ABI also asserts that it may lead to disputes about whether a certain time allocation is ‘reasonable’ or not.

ABI does not consider that clause 20.7(a) should be varied to make the kilometre reimbursement allowance payable in respect of travel to and from work. As a general proposition, ABI contends that the modern awards system does not provide for payments to employees purely for the act of travelling to and from work. While ABI accepts that minimum engagement periods are common features in modern awards, it contends that this is so employees receive a sufficient amount of work and income to justify the expense and inconvenience associated with attending the workplace.[15] ABI also raises concerns with the lack of precision around the concepts of “base” and “client” and asserts that insufficient consideration has been given to the potentially very wide set of circumstances as a result.

Principally, ABI submits that the Commission has already dealt with travel-related entitlements under the Award during its 4 yearly review process. Specifically, in 2015, the HSU sought a new travel allowance applicable for travel between clients and an employee’s usual place of residence and in their course of their duties. Similarly, the UWU sought a variation to ensure the payment of travel time for home care workers. ABI highlighted that the Full Bench in its May 2021 Decision,[16] made a range of factual findings at paragraph [584]. The Full Bench acknowledged that the issues of minimum engagement, broken shifts and travel time were interrelated, and noted that the variations they had determined (provisionally) to make in respect of minimum engagements and broken shifts were “likely to result in changes to rostering practices and to how work is organised”, and “may also change the extent of ‘unpaid’ travel between engagements”[17] and the broken shift allowance the Full Bench proposed to introduce was intended to compensate for the length of the working day being extended because hours are not worked continuously, and the additional travel time and cost associated with effectively presenting for work on two occasions.[18] At the conclusion of the May 2021 Decision, the Full Bench decided that the issue required further consideration and a Conference was convened on 27 May 2021.

Subsequently, in the August 2021 Decision,[19] the Full Bench observed that due to its proposed changes in respect of minimum payment periods and broken shifts, it seemed likely that employers would seek to change rosters and patterns of work in response and the changes may reduce the incidence of unpaid travel time. This was further considered in the October 2021 Decision[20] where the Full Bench observed that:

“[244] …There is an interrelationship between the remuneration for broken shifts and travel time. In setting the broken shift allowances, we have taken into account the additional travel time associated with effectively presenting for work on 2 occasions. It follows that if the SCHADS Award is subsequently varied to provide a payment for travel time, the quantum of the broken shift allowances may require downward adjustment.”

Taking into account the Full Bench’s considerations, ABI submits that the Commission has already dealt with the issues raised by the Applicant and the material currently before the Commission does not provide a sufficient basis upon which to depart from the approach taken by the Commission during the 4 yearly review proceedings.

In relation the Applicant’s claim that the broken shift allowance in clause 20.12 does not adequately compensate employees for the time and costs associated with travelling between clients during a broken shift, ABI submits that the Award was varied in July 2022 to provide enhanced minimum engagements payments as well as a new broken shift allowance. This variation was designed to address the fragmented working patterns of some support workers and to address concerns regarding the incidence of “unpaid travel” being undertaken by support workers. Further, in relation to the kilometre reimbursement for travel costs in clause 20.7(a), ABI contends that it is already widely understood and applied across the industry that the allowance is not payable for an employee’s travel from home or returning home after the conclusion of their shift. In ABI’s view, this prevailing sector-wide practice reflects the intended operation of the provision, the industrial parties’ understanding of its operation and effect, and the Fair Work Ombudsman’s stated interpretation of the provision.[21] There is also no material relating to the history of the Award, including through the award modernisation process or the pre-reform awards upon which the Award was based, that provides any support for a contention that the clause is intended to entitle employees to reimbursement for travelling to and from work.

Ai Group

Ai Group opposes the Applicant’s proposed variation on the basis that the variation is not necessary in the sense contemplated by s. 138 of the Act. Ai Group also contends that the Applicant’s material does not disclose any probative reason for departing form the approach previously determined by the Commission in the 4 yearly proceedings. In response to the Applicant’s proposed variation to clause 20.7, Ai Group submits that the variation presents various practical issues with calculating the amount of payment to which an employee would be entitled. Ai Group notes that the Applicant’s proposed variation seeks to expressly provide payment for time spent travelling to and from the first and last client’s premises in addition to the kilometre allowance for such travel. In Ai Group’s view, this is not simple and easy to understand.[22]

Ai Group contends that the Applicant’s proposed variation seeking employees be paid for “reasonable time taken travelling to and from clients” is unclear and susceptible to disputation as it requires an assessment of what is “reasonable” by reference to Google Maps or an equivalent product agreed on between the employer and employee, as opposed to the actual time spent travelling to and from clients. Further, the proposed variation may lead to unfair outcomes for employers[23] and result in increased employment costs[24] as under proposed clause 20.7(a)(i), payment would still be required whether the employee takes the shortest route or the quickest route. Both would be acceptable in calculating travel time without consideration for traffic or distance. If the Applicant’s proposed variation is accepted, Ai Group submits that this may lead to travel payments being higher than the time actually spent travelling, particularly as Google Maps and other products make assumptions on travel time based on expected traffic conditions which might not materialise until the day travel is undertaken. Ai Group also submits that it would be inappropriate for the Commission to accept that a third-party platform should be the central mechanism for calculating reasonable time travelled between two points for the purposes of determining amounts payable under the Award.

Contrary to the Applicant’s submission that consideration of the travel entitlements introduced by the 4 yearly review is now warranted given more than 12 months has passed since the August 2021 Decision, Ai Group submits that there is simply no evidence before the Commission which would suggest that the existing entitlements under the Award, including minimum payments, broken shift entitlements and travel allowances are inadequate or insufficient. In Ai Group’s view, the travel-related concerns which were raised by the unions as part of the 4 yearly review were remedied by the various changes to the Award following those proceedings. The material before the Commission does not demonstrate that the safety net is deficient or that the Award is not achieving the modern awards objective.

Further, Ai Group opposes the Applicant’s submission that where travel is undertaken from the employee’s home to the client’s premises and back, such travel is undertaken in the “course of their duties”. Ai Group asserts that time spent travelling to/from the first and last client generally does not constitute work and therefore, there is no entitlement to the allowance prescribed by clause 20.7(a). Similarly, for this reason, an employee typically does not have an Award-derived entitlement for time spent undertaking such travel. Relevantly, where such travel is undertaken, employers are not able to and do not seek to instruct the employee as to matters such as the route of travel to be undertaken or even the time of the travel. Further, it is entirely foreseeable that employees, before commencing work at the first client’s premises and after finishing work at the last client’s premises, may travel to other locations and not directly to the client’s premises or back home. Such variables will impact upon how much time an employee spends travelling.

As determined by then Commissioner Saunders in Re Alzheimer’s Australia WA Ltd,[25] Ai Group asserts that an employee’s duties do not commence until they arrive at their workplace,[26] which in this case, is the relevant client’s premises. As a general proposition, Ai Group submits that work does not commence from when an employee leaves their home to go to work, noting that an employee’s contract of employment may provide otherwise. Whether time spent travelling constitutes work requires a consideration of matters including the contractual arrangement in place between the parties and whether there has been any express instruction by the employer for the employee to undertake the relevant travel.

In response to the Applicant’s submission that breaks between shifts are too short and inadequate to be used for personal reasons, Ai Group submit that the Applicant has not provided any evidence of his rostering arrangement to provide the parties and the Commission with an opportunity to ascertain the length of his breaks. Ai Group asserts that there is nothing to suggest this is prevalent in the industry more generally. Ai Group also submit that during broken shift breaks, employees are free from duty and able to undertake other personal activities, and this was evidenced during the 4 yearly review.[27] In that regard, travel that is undertaken during an unpaid break would not constitute a part of the employee’s duties. Finally, Ai Group submits that the Commission has already taken into account the disutility associated with presenting for work on 2 occasions. In Ai Group’s view, the Applicant has not provided any cogent reason or evidence as to why the Commission should revisit the adequacy of the broken shift allowance in compensating employees for this particular disutility in respect of travel undertaken as part of performing a broken shift.

In consideration of the Applicant’s proposed variation, Ai Group noted that many employers covered by the Award operate under funding arrangements from the National Disability Insurance Scheme (NDIS). Taking into account the “NDIS pricing guidelines 2023-24”, it is Ai Group’s submission that NDIS funding in respect of travel undertaken by employees providing “core supports” is constrained by the fact that funding is available only if the client agrees that the employer may claim that funding. While Ai Group acknowledged that the funding arrangements are not determinative of the matter, it submits that the funding constraints weight heavily against the Applicant’s proposed variations. This is because it would be unfair if employers were prohibited under the NDIS from recovering the costs associated with paying an employee for time spent travelling pursuant to the Applicant’s claims, unless the clients agreed to apportioning a part of their funding towards that particular purpose. In circumstances where clients agree to spend their funding for travel payments, this may limit the extent to which they are able to access other services and essential care. Ai Group asserts that this could plainly have a very negative impact on those that access the employers’ services and this is an important discretionary consideration that weights against the grant of the Applicant’s claims.

Finally, Ai Group opposes the Applicant’s proposed variation on the basis that it is not necessary in the sense contemplated by s.138 of the Act. Ai Group submits that:

· There is no evidence that the Applicant’s proposed variation will materially improve the relative living standards and needs of the low paid (s.134(1)(a)).
· The issues raised by the Applicant’s material are best dealt with at the enterprise level and the absence of a one-size-fits-all provision in the safety net may encourage employers and employees to engage in collective bargaining at an enterprise level (s.134(1)(b)).
· The Applicant’s proposed variation may undermine workforce participation to the extent that it results in employers no longer being able to provide some services (s.134(1)(c)).
· The proposed variations are not conducive to flexible modern work practices and the efficient and productive performance of work. It would also require payment to be made to an employee in circumstances where the employee is not engaging in productive work (s.134(1)(d)).
· There are potential impositions on employers including increased costs that may not be recoverable under the NDIS, difficulties for the business to forecast and budget for the periods of time in which the employee is travelling to and from work and additional administrative burden to ensure compliance with the new obligations (s.134(1)(f)).
· The proposed variations are not simple or easy to understand, do not ensure a stable and sustainable modern award system and have already been considered, and not granted, by the Commission (s.134(1)(g)).

Ai Group otherwise contends that the need to improve access to secure work across the economy (s. 134(1)(aa)), the need to achieve gender equality in the workplace (s.134(1)(ab)), the need to provide additional remuneration (s.134(1)(da)), the principle of equal remuneration (s.134(1)(e)) and the likely impact of any exercise of modern award powers on employment growth, inflation and the performance of the national economy (s.134(1)(g)) are neutral considerations.

Applicant’s submissions in reply

In his submissions in reply, the Applicant asserted that the provisions of the SCHADS Award with respect to payment for travel and the motor vehicle allowance have been misapplied by employers resulting in employees being paid incorrectly. This submission is premised on the Applicant’s contention that where employers expect employees to commence work at the residence of the first client and to cease work at the premises of the last client, the required travel is working time and should be paid as such, and in addition, employees should receive the vehicle allowance for each kilometre travelled. The Applicant also posits that if travel between clients, and travel between clients and the employer’s office (for example to pick up supplies), is “travel in the course of … duties” then travel from the employee’s base to the first client and travel from the last client to the employee’s base, is also in the course of duties. The submission that the SCHADS Award does not currently entitle employees to be paid for time spent travelling from home to their first location or their last location to home, is contended by the Applicant to be wrong, on the basis that once the employee is travelling to a client, the employee is already at work because the contract of employment requires employees to drive to each location. The Commission should consider this travel as travel via the office.

The Applicant contends that payment for travel where a broken shift applies should not result in payment to an employee of less than what would be paid if the break was not sufficient to incur a broken shift allowance – for example, if two 120 minute shifts are separated by ninety minutes, then a broken shift allowance would be paid, but if the employee is required to drive 25 km to the next client, then under the current provisions of the Award the employee is denied payment of the motor vehicle allowance and the time taken to drive to the next client, and because the shift is already covered by the minimum, in some cases, will not be paid any extra, based on the minimum engagement period. According to the Applicant, the test should be what the employee would have been paid had there been no breaks between the shifts. In response to the employers’ submissions that if the variation was granted, the broken shift allowance should be reduced, consistent with the comments of the Full Bench in the October 2021 Decision, the Applicant contends that the proposed variation is intended to achieve a result whereby employees are not paid less for a broken shift than they would be paid if the shift was not a broken shift, and that a downward adjustment of shift allowances is not required.

In relation to the employer’s submissions that the matter of travel had been dealt with in the 4 yearly review, the Applicant said that while the Commission had previously decided against introducing entitlements of the kind sought in the present application, the 2021 Decision was to be reviewed after a period of 12 months to consider any negative impacts. This review had not been undertaken, and the present application is intended to pursue the review. The Applicant also said that while there were significant discussions in the 4 yearly review of the SCHADS Award with respect to travel arrangements, and the Commission implemented changes related to minimum shifts and broken shifts, there continue to be negative consequences such as employers rostering a broken shift to avoid paying a higher cost for travel time and car use, where the employee has a significant distance to travel after the break. The Applicant also submits that the Commission did not address the matter of payment for travel time and vehicle allowance for travel to the first client and from the last client.

The Applicant further submits that the variation he proposes is based on acceptance that the broken shift allowance compensates employees for some travel in gaps between sessions with clients, but that there are also times when the minimum engagement periods do not make up for the higher cost of travel to the first client after a break. In this regard, the Applicant said that limitations on the number of portions of work do not limit the amount of “unpaid travel” immediately after a broken shift. The Applicant said that he had provided an example of a circumstance where the reimbursement for travel to the next client would exceed the broken shift allowance, and if the periods either side of the break do not bring about a minimum payment then the worker is paying for the broken shift allowance. The proposed variation is designed to cover that contingency so that the employee is not paid less because a broken shift allowance has been triggered.

In response to the submissions of the employers to the effect that the proposed variation would introduce complexity, the Applicant points to the fact that employers are already required to pay travel allowance for some of the travel undertaken by employees in the course of their duties and are paying for travel between clients. Accordingly, employers must have payroll systems already in place to calculate distance and time spent travelling. According to the Applicant, the proposed variation is fairer to all parties because if a practice was adopted whereby workers are paid for travel in excess of the time and distance from their homes to the employer’s office, the employer may end up paying more than would be the case if the variation was granted and it is simpler to calculate travel from the employee’s home using an agreed method.

In response to the assertion that the submission in support of the application did not disclose any probative reason for departing from the previous approach, the Applicant pointed to the negative impacts highlighted in his submission of congestion around the offices of employers causing issues with safety, and additional travel claims, if employees drove to and from the employer’s office at the start of each day and travelled from there to the first client and returned to the employers’ offices after the last client. The Applicant also pointed to information he had provided evidencing that the benefits of the broken shift allowance were being eroded by time and cost of travel for which employees were not paid or reimbursed. In this regard, the Applicant gave several examples.

Firstly, the Applicant said that the broken shift allowance provisions in the SCHADS Award apply if there is a break between shifts other than a meal break and since employees must travel between clients it is not always clear when the allowance applies. For example, the Applicant’s roster on alternative Thursdays is for a one-hour job finishing at 11.50 and a 90-minute job starting at 12.55, which involves a 65-minute break. Deducting 30 minutes for a meal break – which is not necessary – results in a 35-minute break between shifts. However, when working this shift arrangement, the Applicant does not get a broken shift allowance because the employer has allowed 15 minutes for travel and 10 minutes at each end for flexibility, although such adjustments are not provided for in the SCHADS Award.

In relation to the modern awards objective, the Applicant said that a fair and relevant safety net according with community expectations and standards, would include that workers are not required to pay costs which are rightly the responsibility of their employer, such as driving to the first client and from the last. The variation is necessary to ensure that SCHADS workers are reimbursed for the cost of earning their keep. An underlying premise of the modern award objective is that workers receive a fair day’s pay for a fair day’s work, and they should not be paid less than it costs to provide the service. Failure to pay employees for genuine business travel is akin to asking workers to pay business expenses incurred by the employer.

It is the Applicant’s contention that the broken shift allowance does not compensate employees in all cases and that the variation will have the consequence of preventing employers from creating a broken shift that results in employees being paid less because of a broken shift than would be the case with a shorter break. Relevant to whether SCHADS employees are low paid the Applicant said that while SCHADS employees received a government funded 15% pay rise in July 2023, they did not receive the 5.75% general award wage increase and there should be no basis for a transitional period for the proposed amendments. In response to the submission that the provisions sought by the application will introduce complexity, the Applicant said:

The application is based on a principle that employees are not paid less because of a broken shift and does not require a downward adjustment of the broken shift allowance.
SCHADS employees are already paid for travel between clients and for motor vehicle allowance and employers are required to calculate these payments, indicating that there is no complexity related to calculating payment for travel to the first client and from the last client.
If the Commission accepts the application regarding both payment for travel to the first and from the last client, and a requirement that the employee is not paid less because of a broken shift than if the shifts were closer together, there would be no need for a wholesale review of the extant broken shift and minimum payment provisions.

In relation to the cost of travel and the need for clients to agree to pay that cost, the Applicant contends that if the variation he seeks was granted employers would be entitled to claim from funding packages to cover the costs and it is unlikely that clients in need of a service will refuse it because the cost of travel has increased, and in any event, only clients who are the first or last client for a shift will be affected, and this cost can be spread between clients via rostering and it would not necessarily be the same clients being charged for the travel which workers are currently not being paid for. Travel costs are an essential part of providing services to clients and are included in package expenses and employers’ pricing for clients. The change could well cause some employers to change rosters to avoid significant extra costs. For example, an employer might roster a client earlier in the day, so the worker finishes close to home or the office, instead of a significant distance away or roster employees to work with clients who reside closer to the employee’s home.

According to the Applicant, his reference to worker’s compensation and taxation matters is not irrelevant. When an employee is travelling to the first client or from the last client, the employee is not considered to be at work and under a strict interpretation would not be covered. It is also relevant that the cost of such travel is a legitimate tax deduction because this indicates that the travel is part of producing income. In response to assertions that he had provided insufficient evidence to support the variations sought, the Applicant said that:

Employers should provide evidence, or the Commission should require them to do so and it is unreasonable to expect the Applicant as one employee to provide evidence.
Probative evidence of the absolute need for the variation has been provided in the form of examples of where the current application of clause 20.7 of the SCHADS Award results in employees being paid, after their costs have been applied, far less than the minimum wage.
It is wrong to assume that the issues raised by the application only affect the Applicant when they are relevant to all SCHADS workers.

Legislative framework

Before turning to our consideration of the proposed variation, it is necessary to set out relevant legislative provisions applicable to applications to vary the terms of modern awards. Section 157 of the Act relevantly states that the Commission may vary modern awards if it is satisfied the change is necessary to achieve the modern awards objective. Section 134 of the Act sets out the modern awards objective as follows:

“134 The modern awards objective

What is the modern awards objective?

(1)The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a)relative living standards and the needs of the low paid; and

(aa) the need to improve access to secure work across the economy; and

(ab) the need to achieve gender equality in the workplace by ensuring equal remuneration for work of equal or comparable value, eliminating gender‑based undervaluation of work and providing workplace conditions that facilitate women’s full economic participation; and

(b) the need to encourage collective bargaining; and

(c)the need to promote social inclusion through increased workforce participation; and

(d)the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; and

(f)the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g)the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h)the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2)The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:

(a) the FWC’s functions or powers under this Part; and

(b)the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.

Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).”

Consideration

General observations

It is necessary to make several observations, before turning to consider the application and submissions of the parties. The claims advanced by the Unions in the 4 year review were, in terms of the outcomes sought, identical to those advanced by the Applicant in the present case. After hearing extensive submissions and evidence the Full Bench accepted that there were issues with the SCHADS Award provisions dealing with travel time. However, the Full Bench was not persuaded that the variations sought by the Unions to give effect to the claims, should be made. Instead, the Full Bench focused on the relationship between travel time, broken shifts and minimum payment, and decided to address travel time issues by varying provisions of the SCHADS Award concerning broken shifts and minimum payments. In taking this approach, the Full Bench said that it seemed likely that employers would seek to change rosters and patterns of work in response to its decision in respect of minimum payment times and broken shifts and that these changes may well reduce the incidence of unpaid travel time.

As we have noted, the Full Bench had before it, extensive evidence called by the Unions proposing variations to the Award, from a range of persons, including direct care employees. The variations proposed by the Unions sought the same travel entitlements as those sought in the present application: payment for travel from the employee’s residence to the first client and from the residence of the last client to the employee’s residence. The Full Bench heard evidence from a significant number of witnesses and carefully balanced the positions advocated by the employer interests and the Unions in determining the approach to addressing issues related to travel and the link between those issues and minimum payment and broken shift provisions of the SCHADS Award. The Full Bench in the 4 yearly review decisions made clear that the changes it had made to the minimum payments and broken shifts terms of the SCHADS Award were intended to compensate for additional travel time and cost associated with effectively presenting for work on 2 occasions.

The Full Bench in the August 2021 4 yearly review decision did not state that a review of the issue of travel time would be conducted, but rather, that the parties to the proceedings had liberty to apply for a review after the provisions had been in operation for 12 months.[28] The Full Bench foreshadowing further consideration of payment for travel time, was in this context.

In our view, the conclusions reached by the Full Bench in relation to the travel issues, and the measures to address those issues that the Full Bench put into place, should not be set aside unless there is cogent and clear evidence establishing that those measures are not meeting the modern awards objective. The evidence in the present case is a matter to which we will return.

The Applicant’s construction of clause 20.7 of the SCHADS Award

The Applicant changed his position in his reply submission and asserted that clause 20.7 of the SCHADS Award has been misapplied by employers and that the clause, in its current form, entitles home care employees who are required to commence work at the residence of a client, to be paid for travel from their home to the home of the first client and from the home of the last client to their own home. We do not accept this submission for the following reasons. Firstly, the present application was pursued on the basis that the SCHADS Award does not provide such an entitlement to home care employees. The Respondents to the application framed their submissions objecting to the application on this basis and have not had an opportunity to make submissions about the alternative construction posited in the Applicant’s submission in reply. The present application would be unnecessary if the proper construction of the Award was that posited by the Applicant.

Secondly, the alternative construction posited by the Applicant is contrary to the construction of the travel provisions in the SCHADS Award historically, including during the 4 yearly review. Those proceedings were conducted on the basis that then clause 25.7 of the SCHADS Award, which is now clause 20.7, did not entitle employees to be paid either for time spent travelling or the per kilometre allowance, for travel from the employee’s home to the first client or from the last client to the employee’s home. The Full Bench noted that most employers at that time, did not pay employees for time spent travelling either to and from their first and last client, or between clients.[29] Had this practice been contrary to the provisions of the SCHADS Award (which are currently in the same terms) the Full Bench would have noted this, and the Union parties seeking to vary the Award would have also raised this point as a ground for the variations they sought. Instead, the Union parties variously sought provisions which were directed at achieving the same outcomes as those in the present application.

In this regard, the HSU sought the payment both for time spent travelling between clients and of the per kilometre allowance for such travel. The HSU’s claim for payment of travelling time specifically excluded travel from the employee’s home to the first client and from the last client to the employee’s home but included such time in respect of the claim for payment of the per kilometre allowance. The AWU and the HWU sought payment of time spent travelling between different locations at which employees were required to work and the payment of the per kilometre allowance but excluded travel from an employee’s home to the location of the first client and from the location of the last client to the employee’s home. Those claims would also have been unnecessary if the proper construction was that posited by the Applicant. We also do not think it appropriate to invite submissions from the Respondents on the alternative construction advanced by the Applicant given its inconsistency with the established views about how the travel provisions of the SCHADS Award operate and with the 4 yearly review of that Award.

Thirdly, as submitted by ABI, it is widely understood across the home care sector that the travel allowance in clause 20.7 is not payable for an employee’s travel from home or returning home after the conclusion of their shift. This is supported by advice from the Fair Work Ombudsman tendered by ABI which also states that:

“The vehicle allowance is paid for travel between work locations in the course of the employee’s duties.
The vehicle allowance isn’t paid for travel:
·from the employee’s home to the first client
·in the middle of the broken shift when the employee is free from work duties, including travel to the start of the second part of the broken shift

·from the last client to the employee’s home”.

Fourthly, it is apparent from the decision of the Full Bench in the 4 yearly review, and the resulting variations to broken shift and minimum payment provisions in the SCHADS Award that the following parameters apply to such shifts:

Broken shifts may be worked only by social and community services employees when undertaking disability services work and home care employees.
Broken shifts may be worked by full time, part-time or casual employees.
When worked by an individual employee, a broken shift is a single shift where periods of work are “broken” by unpaid breaks (other than unpaid meal breaks within the meaning in clause 27.1.)
Employees are entitled to unpaid meal breaks, of not less than 30 and not more than 60 minutes, where they work in excess of 5 hours and to be paid double time until a meal break is taken, when required to work through a meal break.
A shift may be broken by 1 unpaid break (other than a meal break) or with the agreement of the employee working the broken shift, by 2 unpaid breaks (other than a meal break).
Broken shifts must be worked within a span of 12 hours (commencing at the start of the first period of work and ceasing at the completion of the last period of work) with time outside the 12-hour span being paid for at double time.
Full time employees can work up to a maximum of 10 ordinary hours per day.
When a full-time employee works a broken shift, the periods of work, including breaks (with the possible exception of meal breaks)[30] must occur within a 12-hour span.
The minimum payment period of 2 or 3 hours in clause 10.5 apply to part-time and casual employees depending on the nature of the work they are performing.
If a break between periods of a broken shift (other than a meal break) falls within a minimum payment period for a casual or part-time employee, the break is treated and paid for as time worked.
Travel time that falls within a minimum payment period for a casual or part-time employee working a broken shift, is treated and paid for as time worked.
Where travel time falls within a minimum payment period, it also attracts the per kilometre allowance in clause 20.7.

We do not accept the submissions to the contrary advanced by the Applicant. We now turn to consider the principles relevant to the operation of the modern awards objective.

Principles relevant to the operation of the modern awards objective

The modern awards objective applies to the exercise of the Commission’s modern award powers, defined to include functions or powers under Part 2-3 of the Act. The present application is made under s.157, which is found in Part 2-3 of the Act and accordingly involves the exercise of modern award powers. The approach to the effect of s.134 on the exercise of modern award powers has generally been considered in the context of the previous award review process under s.156 of the Act which was also found in Part 2-3. The principles are also relevant to consideration of the modern awards objective in the context of an application for a variation under s.156.

In CFMEU v Anglo American Metallurgical Coal Pty Ltd[31] a Full Court of the Federal Court distinguished the statutory tasks posed by the former s.156(2)(a) and s.157(1)(a), as follows:

“The terms of s 156(2)(a) require the Commission to review all modern awards every four years. That is the task upon which the Commission was engaged. The statutory task is, in this context, not limited to focusing upon any posited variation as necessary to achieve the modern awards objective, as it is under s 157(1)(a). Rather, it is a review of the modern award as a whole. The review is at large, to ensure that the modern awards objective is being met: that the award, together with the National Employment Standards, provides a fair and relevant minimum safety net of terms and conditions. This is to be achieved by s 138 – terms may and must be included only to the extent necessary to achieve such an objective.”[32] (emphasis added)

Notwithstanding that Division 4 of Part 2 – 3 (including s.156) has been amended to remove the 4 yearly review process, the observations of the Full Court about the effect of s.157(1)(a) remain apposite. The focus under s.157(a) is on the posited variation, rather than the award as a whole. That is not to say that a variation under s.157(1)(a) is considered in isolation from other terms of the modern award in which it is sought. As in the present case, a variation to one term of a modern award will likely impact other terms of the award which must also be considered as part of the Commission reaching a conclusion as to whether it is satisfied that the variation is necessary to achieve the modern awards objective. However, the starting point in considering an application under s.157(a) is the variation sought.

The principles to be applied when considering whether a modern award should be varied were outlined by the Full Bench in Variation of awards on the initiative of the Commission[33], and may be summarised as follows:

· The modern awards objective is to ‘ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions’, taking into account the particular considerations identified in ss.134(1)(a)–(h) (the s.134 considerations).
· The modern awards objective is a broad[34] composite expression requiring that modern awards, together with the National Employment Standards (NES), provide a fair and relevant minimum safety net of terms and conditions’, taking into account the matters in ss.134(1)(a)–(h).[35]
· In the context of the modern awards objective, fairness is to be assessed from the perspective of the employees and employers covered by the modern award in question.[36]
· Each of the s.134 considerations, insofar as they are relevant, must be treated as a matter of significance in the decision-making process,[37] with no particular consideration being given primacy[38] and not all of the considerations will necessarily be relevant in the context of a particular proposal to vary a modern award.
· It is not necessary to make a finding that the award fails to satisfy one or more of the s.134 considerations as a prerequisite to the variation of a modern award.[39]
· The s.134 considerations do not set a particular standard against which a modern award can be evaluated; many of them may be characterised as broad social objectives.[40]
· In giving effect to the modern awards objective the Commission is performing an evaluative function taking into account the matters in s.134(1)(a)–(h) and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance.

Putting the operation of the modern awards objective in a nutshell, the Full Bench in Variation of awards on the initiative of the Commission[41] observed that:

[117] What is ‘necessary’ to achieve the modern awards objective in a particular case is a value judgment, taking into account the s.134 considerations to the extent that they are relevant having regard to the context, including the circumstances pertaining to the particular modern award, the terms of any proposed variation and the submissions and evidence.[42]”

We next consider whether a variation in terms sought in the application is necessary to achieve the modern awards objective, as required by s.157(a).

Application of the s.134 considerations in the present case

Section 134(1)(a) of the Act requires that the Commission take into account “relative living standards and the needs of the low paid”. In an application for an award variation, the central issue arising in relation to s.134(1)(a) is whether an entitlement to paid travel time and the allowance in clause 20.7 being extended to travel outside of the current SCHADS Award provisions, would assist the relative living standards and the needs of the low paid. It is well established that a threshold of two-thirds of median full-time wages provides a suitable benchmark for identifying who is “low paid”, within the meaning of s.134(1)(a). In the Annual Wage Review 2023 – 2024, the Expert Panel said in relation to s.134(1)(a) and the low paid benchmark:

[72] Sections 134(1)(a) and 284(1)(c) require consideration of the ‘relative living standards and the needs of the low paid’. ‘Relative living standards’ is plainly a comparative concept. In past annual wage review decisions, ‘the low paid’ have also been defined in a comparative way in that the measure adopted has been those employees whose ordinary-time earnings are below two-thirds of median adult ordinary-time earnings of all full-time employees. There are two measures of this benchmark. The first is derived from the ABS Characteristics of Employment (COE) data. Based on the COE data for August 2023, the benchmark is $1066.67 per week. The second is derived from the ABS EEH data, and as at May 2023 is $1131.33 per week.
[73] On the COE benchmark, every modern award minimum weekly rate of pay up to and including the C8 classification rate is below the low paid threshold. On the EEH benchmark, it is every modern award rate up to and including the C7 rate. However, other award ordinary time pay entitlements such as industry and other allowances, shift loadings, evening and weekend penalty rates payable on ordinary time, and the casual loading where applicable, also need to be taken into account in assessing employees’ earnings for the purpose of comparison with the low paid benchmark. Thus, while the majority of modern award base pay rates are below the benchmark, only a minority, albeit a substantial minority (36.1 per cent) of modern award-reliant employees (on adult rates of pay) are actually low paid. Using the comparative measure referred to, it is their needs which must be taken into account insofar as modern awards are concerned. This group constitutes approximately 6.2 per cent of the total employee workforce.

As is apparent from the passage set out above, the benchmark for establishing whether a modern award rate of pay is below the low-income threshold is usually derived from the full time weekly minimum award rate and other amounts earned during ordinary time, by employees in a relevant classification, as an indication of whether employees in that classification are low paid. The low paid benchmark is not derived from the weekly earnings of an individual part-time or casual employee. In saying this, we do not rule out the possibility that a valid comparison could be derived from the benchmark, for example, in circumstances where part-time or casual employment was prevalent and consideration was being given to whether or not a variation to a modern award would increase the ability of part-time and casual employees to gain additional hours of work to increase their earnings, or in the context of other considerations such as access to secure work, gender equality, social inclusion or promotion of the efficient or by undertaking rather than to the earnings of an individual employee who is engaged on a part-time or casual basis. The difficulty in the present case is that the only evidence about pay provided by the Applicant is a single pay record, indicating his weekly earnings for the period from 1 to 14 May 2023. For reasons we will return to, the pay record is of limited assistance.

The Applicant’s assertion that SCHADS Award covered employees received a 15% increase in July 2023 but did not receive the 5.7% increase from the 2022 – 2023 Annual Wage Review decision is incorrect. Home care employees covered by the SCHADS Award and engaged in the aged care sector received a 15% increase from 30 June 2023 based on work value, and a further 5.75% increase with effect from 1 July 2023 (applied to the rates including the 15% uplift) from the 2022 – 2023 Annual Wage Review decision. Home care employees in the disability care sector did not receive the 15% work value wage increase on the basis that the proceedings in which that increase was awarded concerned aged care[43]. Home care employees in the disability sector received the 5.75% increase from the 2022 – 2023 annual wage review. Rates in the SCHADS Award for both aged care and disability care were subsequently increased by 3.75% from 1 July 2024, as a result of the decision of the Expert Panel in the 2023 – 2024 annual wage review. In September 2024, further work value increases ranging from 2.3% to 11.1% were granted to direct care employees in the aged care sector, with effect from 1 January 2025.

The Applicant’s evidence is that he works as a support worker for a provider of aged and disability care services. It is not clear whether the Applicant works in one or both sectors. In support of his standing to make the application, the Applicant tendered a single wage record for the period 1 to 14 May 2023. The wage record indicates that the Applicant was paid for 33.50 hours at his base rate and took 4 hours of annual leave. It is not otherwise indicated whether the Applicant was employed on a full-time or part-time basis. Nor is there any indication as to the level at which the Applicant’s position is classified, or the relevant pay point in that level. Further, the pay record tendered by the Applicant does not indicate whether he is classified as a home care employee in the aged care sector or the disability care sector. We assume that the Applicant is a part-time employee on the basis that he was paid for 33.50 hours of work, 3.23 hours for travel time and 4 hours of annual leave in the fortnight covered by the pay slip – less than the 76 hours the Applicant would have been paid for if he was a full-time employee. The base hourly rate indicated on the pay slip is $25.0530 per hour. That hourly rate equates with the weekly award rate for home care employee – disability care Level 3 pay point 2 which was $969.90 per week in the period covered by the pay slip tendered by the Applicant and we assume that this is the Applicant’s classification level. There is no evidence about the quantum of the Applicant’s guaranteed hours each week.

The current full-time weekly minimum rate under the SCHADS Award for the level and pay point at which the Applicant is classified and paid, is $1064.20. That weekly full-time rate is $2.47 per week below the low paid benchmark derived from the COE data ($1066.67 per week) and $67.13 per week below the low paid benchmark derived from the EEH data ($1131.33 per week). However, it is also the case, as the Full Bench in the 2023 – 2024 Annual Wage Review noted, that allowances and other penalty rates earned in ordinary time, need to be taken into account in assessing earnings for the purposes of the low paid threshold. The pay record tendered by the Applicant indicates that in addition to his ordinary earnings, he was paid an amount of $18.61 for “Travel – Taxed” and $124.08 for “Travel – Tax Free” in the pay period. Factoring in allowances paid to full-time employees, it is doubtful that full-time employees in the disability care sector, classified at level 3 pay point 2, are low paid on either measure.

While we accept that the Applicant’s actual weekly ordinary earnings are below the low paid threshold, and that the grant of the application would likely improve the Applicant’s financial position by compensating him for the time and cost of travel to and from work, we do not accept that the variations sought by the Applicant would address the needs of the low paid in the sense contemplated by s.134(1)(a), for the following reasons. Firstly, a variation to the SCHADS Award will have an effect beyond the effect on the Applicant. The SCHADS Award is a modern award applying to many employers and employees who work in diverse sectors. We are required by s.134(1)(a) read in conjunction with s.157(a), to consider whether the posited variation would assist the relative living standards and needs of the low paid for the purposes of deciding whether the variation is necessary to achieve the modern awards objective.

Secondly, we are not satisfied that employees who are paid the relevant minimum weekly full time award rate for the level and pay point at which the Applicant is classified, are low paid. Similarly, we are not satisfied that other employees who undertake the same work at different levels of the classification structure, as it relates to home care employees in the disability care sector, are low paid. The Applicant’s weekly rate in the two-week period covered by the pay record he tendered, indicates that in that fortnight his weekly ordinary time earnings were below the low paid benchmark because he worked in that period on a part-time basis, rather than because of the rate at which he was paid.

Thirdly, even if the claim was granted, there is no guarantee that it would increase the earnings of employees in the disability services sector. If employers are required to treat time spent travelling as working time, and to pay employees for that time, they may change rostering practices so that home care employees are assigned to clients closer to their residences. However, employers may also decide to offset the additional cost by reducing the hours of work of employees so that the total number of hours they are paid will not increase, or to reduce the services they offer to clients. Further, the payment of vehicle allowance to employees for travelling to and from work, does not increase their ordinary earnings, but rather, offsets an expense that they incur by using their own vehicles for this purpose. The allowance for broken shifts granted by the Full Bench in the 2021 4 yearly review decision is an all-purpose allowance which has the effect of increasing their ordinary earning.

Fourthly, home care employees commencing work at the residence of their first client and being able to return home directly from the residence of their last client, is an arrangement that may benefit both the employee and the employer. While the Applicant points to potential dangers associated with car-park congestion if employees travelled to the employer’s premises to commence work, such a requirement could disadvantage employees in terms of time spent travelling to an employer’s premises and then to a client’s premises, notwithstanding that some of that time may be paid. It is also the case that there is no general rule to the effect that employees are entitled to be paid to travel to and from work, in circumstances where their starting and finishing point is not the premises of the employer. Further, as the Full Bench in the 4 yearly review of the SCHADS Award recognised, that the more significant disutility caused by increased travel, is the result of employees working broken shifts, rather than the fact that employees are required to start and finish work at the residence of a client. The Full Bench addressed this disutility by amending the provisions of the SCHADS Award relating to broken shifts.

Fifthly, the Applicant made several unsubstantiated assertions about the negative financial impacts of the travel provisions in the SCHADS Award. An example is the Applicant’s assertion that the Applicant was required to attend two clients at “some distance” from his home, and that if he had undertaken the work, he would have worked three hours for “about $0.03” factoring in the cost of travel both ways. The Applicant provided no details of how he had undertaken this calculation. It is also the case that the example is framed on the basis that the Applicant did not undertake the work and “would have” suffered the loss he identified had he done so. The Applicant gave no evidence of any detriment as a result of declining to undertake the work and we assume that he exercised a right to refuse to do so without adverse consequences from his employer. Finally, we note that the way in which Centrelink assesses payments to employees as reportable income, is not determinative of whether varying an award would address the needs of the low paid or their relative living standards. The Applicant has not made clear how this matter has any relevance to the application or to any employee covered by the Award other than the Applicant. It is also the case that whether a journey to or from work is covered by workers compensation legislation, is a matter that depends on the particular legislation rather than the definition of work in a modern award.

We do not accept that the posited variations to the SCHADS Award will improve relative living standards or address the needs of the low paid. This weighs against the grant of the application.

Section 134(aa) requires that we take into account the need to improve access to secure work across the economy. There is no evidence nor any submission that could satisfy us that granting the application in full or in part, would further this objective. In relation to s.134(ab) this case does not involve gender undervaluation or claims in relation to equal remuneration for work of equal value. It is also not apparent how the proposed amendments would provide workplace conditions that facilitate women’s full economic participation, although we accept that the cost of travel which is not compensated for in some way, may hinder men and women working as home carers. We also note that the issue of whether the classification of home care employee – aged care is subject of undervaluation based on gender, has been dealt with as part of a broader work value case in the aged care industry, which resulted in wage increases for home care employees – aged care, of 15% from 30 June 2023. There are other applications currently before the Commission where the question of whether there is gender undervaluation with respect to other classifications in the SCHADS Award is being considered. These matters are not relevant to our consideration of the application.

With respect to s.134(b), while we do not go so far as to determine that to grant the application would discourage enterprise bargaining, there is no evidence that it would have a positive effect on bargaining. We accept the submission of Ai Group that this matter may be one that is best dealt with at the enterprise level. We also note that this issue could be addressed by means that do not require an enterprise agreement, including discussions between employees and employers about mitigating travel costs through rostering measures and allocation of clients based on proximity to the residence of home care employees. There is no evidence that the Applicant has attempted to address the issues he raises by having discussions with his employer in relation to his concerns. This matter is also at best, a neutral factor and at worst, irrelevant to the application.

Section 134(c) requires us to take into account the need to encourage social inclusion through increased workforce participation. There is no evidence that the issues raised in the application are discouraging increase workforce participation and this factor is also not relevant. In relation to the matters we are required to take into account in s.134(d)(a), the application does not concern employees working overtime, unpredictable hours, weekends or public holidays. The application deals with payment for employees working shifts, by seeking to include a provision entitling employees to the greater amount of the broken shift loading in clause 25.6 and payment for travelling between clients in a break between periods of work on a broken shift, and the per kilometre allowance in clause 20.7(a). The SCHADS Award as it is presently framed provides additional remuneration to employees working shifts, including broken shifts. The Award also places restrictions on the working of broken shifts to address payment issues. The SCHADS Award as presently framed does not provides additional remuneration for employees working shifts and the variations sought by the Applicant would not address an unmet need in this regard.

Section 134(f) requires that we take into account the likely impact of the exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden. As we have noted, the SCHADS Award covers a diverse range of employers and their employees. We accept that the effect of the variation would increase employment costs by virtue of the employer being required to pay the higher of the current award provisions for travel and the benefits sought by the Applicant. We agree that the variations sought by the Applicant would add a level of complexity and require employers to establish an agreed method of measuring the time and distance travelled by employees in circumstances where the starting point is not the employer’s premises. This would likely increase the regulatory burden on employers. It is also relevant that the provisions of the SCHADS Award the Applicant seeks to vary are well established and were extensively reviewed in the 2021 4 yearly review. The variations would give rise to a substantial changed and create additional cost and complexity for employers in circumstances where we are not satisfied that the issues the variations seek to address are of such significance that these adverse effects are warranted. These matters weigh against the variations being granted.

Section 134(g) requires that we take into account the likely impact of the proposed variation on the award system generally, in relation to the specified matters. In the 4 Yearly Review of Modern Awards: Preliminary Jurisdictional Issues Decision,[44] it was observed by a Full Bench that the need to ensure a stable modern award system suggests that a party seeking to vary a modern award in the context of the Review must advance a merit argument in support of the proposed variation. The Full Bench also observed that the extent of such an argument will depend on the circumstances, with some changes being self-evident and able to be determined with little formality. The Full Bench went on to state that where a significant change is proposed it must be supported by a submission which addresses the relevant legislative provisions and be accompanied by probative evidence properly directed to demonstrating the facts supporting the proposed variation.

While the present application is not being dealt with as part of the previous 4 yearly review process, it does concern award provisions which were the subject of such a review. The Award provisions which are now sought to be varied, were established as recently as 2021, based on extensive submissions and probative evidence. It is also the case that the Full Bench in the 4 yearly review addressed the same issues as are being ventilated in the present application, and after consideration of submissions and evidence rejected variations which were intended to achieve the same outcome as sought in the present case. This is not a case where the issue that is sought to be addressed has not previously been dealt with or where there is an obvious issue with an award provision that has not previously been the subject of detailed consideration in the award review process or self-evidently requires variation to meet the modern awards objective or where the award already provides an entitlement and requires clarification.[45] After hearing extensive evidence and submissions, the Full Bench in the 4 yearly review varied the SCHADS Award in a number of respects to establish an integrated approach to travel time issues related to broken shifts.

The variations sought in the present application are substantive and, in our view, to grant the application in circumstances where the submission in support does not address the legislative requirements and there is a lack of probative evidence, would destabilise the modern award system by setting the bar for variation too low. In reaching this conclusion we do not intend to be critical of the Applicant’s attempts to redress what he sees as a significant issue with the travel time and broken shift provisions of the SCHADS Award. We accept that the Applicant is self-represented and presenting an evidentiary case satisfying the requirements for variation of the Award is difficult. We are also of the view that there may be some issues related to those provisions that require further consideration. For example, the clause appears to be capable of allowing the employer to require employees to commence travelling between the residences of successive clients within the 2-hour minimum payment period and then to complete the travel to the second client in the break between two periods of “work” without payment for that travel, before commencing work at the premises of the second client. This situation would appear to be of most concern in the case of part-time or casual employees working less than full-time hours, because those employees have the same spread of ordinary hours as full-time employees allowing for periods of work on broken shifts to be undertaken between longer breaks than would be the case for employees working full-time hours. However, this is not a matter that can be addressed in the present case due to the lack of evidence about the practices of employers generally.

Conclusion

Having considered the evidence and submissions, and the relevant provisions of the modern awards objective, we are not persuaded that the discretion in s.157(1)(a) to vary the SCHADS Award should be exercised and we have decided to refuse the application. Accordingly, we must dismiss the application and an Order to that effect will issue with this Decision.

VICE PRESIDENT

[1] Submissions by Steven Secker on 30 October 2023 and submissions in reply on 17 January 2024.

[2] Submissions by Business NSW, ABI and ACCPA on 20 December 2023.

[3] Submissions by Ai Group on 20 December 2023.

[4] [2021] FWCFB 5244; [2021] FWCFB 5641.

[5] [2021] FWCFB 2383 at [242] – [556] (‘May 2021 Decision’).

[6] May 2021 Decision op. cit. at [452] 6.

[7] May 2021 Decision at [585].

[8] May 2021 Decision at [587].

[9] Ibid.

[10] Ibid at [491].

[11] [2021] FWCFB 5244.

[12] 4 yearly review of modern awards – Social, Community, Home Care and Disability Services Industry Award 2010 [2021] FWCFB 5244 (‘August 2021 Decision’).

[13] Submissions by Business NSW, ABI and ACCPA on 20 December 2023.

[14] See for example clause 25.1, clause 25.5, clauses 25.1(a)(i)-(iii) and 25.1(b), clause 10.5, clause 28.1, clause 29.2, clauses 27.1-27.2 and clause 25.6 of the Award.

[15] [2017] FWCFB 3541 at [399].

[16] 4 yearly review of modern awards – Social, Community, Home Care and Disability Services Industry Award 2010 – Substantive claims [2021] FWCFB 2383.

[17] Ibid at [587].

[18] Ibid at [587].

[19] 4 yearly review of modern awards – Social, Community, Home Care and Disability Services Industry Award 2010 [2021] FWCFB 5244.

[20] 4 yearly review of modern awards – Social, Community, Home Care and Disability Services Industry Award 2010 [2021] FWCFB 564.

[21] Submissions by Business NSW, ABI and ACCPA on 20 December 2023 citing Fair Work Ombudsman, ‘Vehicle allowance in the Social, Community, Home Care and Disability Services Award’ (Web page).

[22] Fair Work Act 2009 (Cth), s.134(1)(g) (‘Act’).

[23] Ibid, s.134(1).

[24] Ibid, s.134(1)(f).

[25] [2015] FWCA 4863.

[26] Ibid at [8].

[27] Transcript of Proceedings on 15 October 2019 at PN468 and PN527.

[28] August 2021 Decision [2021] FWCFB 5244 at [228].

[29] [2021] FWCFB 2383 at [232].

[30] It is not necessary that we decide this point in these proceedings.

[31] [2017] FCAFC 123.

[32] Ibid at [28].

[33] [2020] FWCFB 1837.

[34] Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35].

[35] (2017) 265 IR 1 at [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [41]–[44].

[36] [2018] FWCFB 3500 at [21]-[24].

[37] Edwards v Giudice (1999) 94 FCR 561 at [5]; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 at [81]-[84]; National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [56].

[38] Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [33].

[39] National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [105]-[106].

[40] See National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [109]-[110]; albeit the Court was considering a different statutory context.

[41] [2020] FWCFB 1837.

[42] See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227.

[43] There are currently proceedings on foot concerning whether the wage rates in a number of modern awards, including the SCHADS Award, are undervalued on the basis of assumptions related to gender.

[44] [2014] FWCFB 1788.

[45] Cf. Naragonda Amayuru Paranahewa (AM2022/320 [2024] FWC 8).

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