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[2019] FWCFB 6067

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.156 – 4 yearly review of modern awards

4 yearly review of modern awards—Group 4—Social, Community, Home Care and Disability Services Industry Award 2010—Substantive claims
(AM2018/26)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE

MELBOURNE, 2 SEPTEMBER 2019

4 yearly review of modern awards – award stage – group 4 awards – substantive issues – Social, Community, Home Care and Disability Services Industry Award 2010

Chapters		Paragraph
1	Introduction	[1]
2	The Review	[7]
3	Social, Community Home Care and Disability Services Industry Award 2010
3.1 General	[22]
3.2 Survey of Members of the employer organisations	[28]
3.3 Are SCHADS Award relevant employees low paid?	[44]
4	The SCHADS Sector and the NDIS	[48]
5	The claims
5.1 Overview	[77]
5.2 The 24 hour care clause	[84]
5.3 The claims relating to casual employees	[106]
5.4 Community language skills allowance	[174]
5.5 First aid certificate renewal claim	[178]
5.6 Variation to public holidays clause	[189]
6	Conclusion and Transitional Arrangements	[195]
7	Next Steps	[202]

Attachments

Attachment A– Outstanding claims

Attachment B – Oral evidence and witness list

Attachment C – Draft variation determination

ABBREVIATIONS

ABI	Australian Business Industrial and the New South Wales Business Chamber
Act	Fair Work Act 2009 (Cth)
ADHC	Aging Disability and Home Care
AFEI	Australian Federation of Employers and Industries
Ai Group	Australian Industry Group
ANZSIC	Australian and New Zealand Industrial Classification
ASU	Australian Services Union
Business SA	South Australian Chamber of Commerce and Industry T/A Business SA
Census	The ABS Census of Population and Housing
CoE	Characteristics of Employment Survey
Commission	The Fair Work Commission
EEH	Survey of Employee Earnings and Hours
ERO	Equal Remuneration Order
HSU	Health Services Union
NES	National Employment Standards
NDIS	National Disability Insurance Scheme
NDS	National Disability Services
PC Final Report	Productivity Commission Inquiry Report: Workplace Relations Framework
Review	4 yearly review of modern awards
UV	United Voice

ABBREVIATIONS - Awards

Aged Care Award 2010	Aged Care Award
Hospitality Industry (General) Award 2010	Hospitality Award
Registered and Licensed Clubs Award 2010	Clubs Award
Registered and Licensed Clubs Award 2010, Restaurant Industry Award 2010 and the Hospitality Industry (General) Award 2010	Collectively, the Hospitality Awards
Restaurant Industry Award 2010	Restaurant Award
Social, Community, Home Care and Disability Services Industry Award 2010	SCHADS Award

1. Introduction

[1] This decision deals with a number of claims for substantive variations to the Social, Community, Home Care and Disability Services Industry Award 2010 (the SCHADS Award) as part of the 4 yearly review of modern awards (the Review).

[2] On 3 April 2019 we issued a Statement 1 addressing correspondence that had been received from the Australian Industry Group (Ai Group) and Australian Business Industrial (ABI). In short, that correspondence dealt with whether or not it would be appropriate to proceed with all of the claims in hearings scheduled to commence on 12 April 2019. The Statement provided a list of claims which we considered could be progressed with the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWCFB 6067
Decision Date: 2 SEPTEMBER 2019

CaseChat Overview and Summary

This case involved the four-yearly review of the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) as mandated by section 156 of the Fair Work Act 2009. The Fair Work Commission was tasked with reviewing the SCHADS Award to ensure it achieved the modern awards objective, which includes providing a fair and relevant minimum safety net of terms and conditions. The Commission heard claims from various unions and employer organisations to vary specific clauses of the SCHADS Award, including those relating to 24-hour care, overtime, weekend work, public holidays, and casual loadings. The Commission found that while some claims had merit, others were not supported by evidence or did not align with the modern awards objective. For instance, the Commission rejected the claim to delete the 24-hour care clause, noting its regular use and the value it provides to certain employees. However, the Commission did agree to vary the rates of pay for casual employees working overtime, on weekends, and on public holidays, subject to transitional arrangements that phase in the changes over time. The decision also set a process to address deficiencies in the 24-hour care clause and deferred consideration of a claim for a community language skills allowance. The Commission invited further submissions on the transitional arrangements before finalizing the determination.

Orders