1
[2013] FWC 4141
DECISION
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS
awards) after first 2 years
Australian Municipal, Administrative, Clerical and Services Union
(AM2012/201)
Social, community, home care and disability services
VICE PRESIDENT WATSON SYDNEY, 27 JUNE 2013
Application to vary the Social, Community, Home Care and Disability Services Industry
Award 2010 - minimum engagement periods for part-time employees - small business
redundancy - broken shifts - weekend penalties for casual employees - overtime rates - public
holidays - Fair Work Act 2009 - Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009.
Introduction
[1] This decision concerns outstanding matters in the Australian Municipal,
Administrative, Clerical and Services Union’s application to vary the Social, Community,
Home Care and Disability Services Industry Award 2010 (SACS Award). The application is
made under Sch. 5, Item 6 of the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009 (the Transitional Act) as part of the review of all modern awards of
which Fair Work Australia is required to conduct after the first two years of all modern
awards coming into effect (the 2012 Review). The matters were referred to me following the
retirement of Senior Deputy President Kaufman, who heard other matters relating to the
SACS Award.
[2] At the commencement of the 2012 Review, applications to vary the SACS Award
were received from:
United Voice;
Group Training Australia;
Aged and Community Services Association of NSW & ACT Inc and others;
Catholic Commission for Employment Relations;
Australian Business Industrial;
Health Services Union of Australia;
Australian Municipal, Administrative, Clerical and Services Union;
Victorian Employers’ Chamber of Commerce and Industry;
Australian Federation of Employers and Industry, and;
Illawarra Multicultural Services Inc.
AUSTRALIA FAIR WORK COMMISSION
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[3] The applications by Illawarra Multicultural Services Inc and Group Training Australia
were subsequently withdrawn. The matters raised in all other applications aside from the
application by the Australian Municipal, Administrative, Clerical and Services Union (ASU)
were all dealt with by Senior Deputy President Kaufman. His Honour issued a consent
determination1 on 21 November 2012.
[4] Directions were issued by me for interested parties to file written submissions in
relation to the ASU application on 18 February 2013. The matter was listed for hearing on 9
April 2013. Following the identification of a further outstanding issue, the matter was listed
for further hearing on 17 May 2013.
[5] During the proceedings, Mr K. Harvey appeared for the ASU. Mr K. Godfrey
appeared for Jobs Australia. Mr S. Forster appeared for the Australian Federation of
Employers and Industry (AFEI). Ms S. Haynes appeared with permission for Australian
Business Industrial (ABI). Mr N. Barkatsas appeared for the Victorian Employers’ Chamber
of Commerce and Industry (VECCI). Mr P. Newall, of counsel, appeared with permission for
the Aged and Community Services Association of NSW & ACT Inc and others, collectively
referred to as the Aged Care Employers.
The Variations Sought
[6] The ASU seeks multiple variations to the SACS Award dealing with the following
matters:
Minimum engagement periods for part time employees;
Part-time employment terms;
Small business redundancy;
Broken shifts;
Weekend penalties for casual employees;
Overtime rates;
Public holiday pay for 7 day shiftworkers.
[7] I will explain the detail of each proposal when dealing with the matters separately
below.
The Legislative Test
[8] Sch. 5, Item 6 of the Transitional Act provides:
“(1) As soon as practicable after the second anniversary of the FW (safety net
provisions) commencement day, FWA must conduct a review of all modern awards,
other than modern enterprise awards and State reference public sector modern awards.
(2) In the review, FWA must consider whether the modern awards:
(a) achieve the modern awards objective; and
(b) are operating effectively, without anomalies or technical problems
arising from the Part 10A award modernisation process.
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(2A) The review must be such that each modern award is reviewed in its own right.
However, this does not prevent FWA from reviewing 2 or more modern awards at the
same time.
(3) FWA may make a determination varying any of the modern awards in any way
that FWA considers appropriate to remedy any issues identified in the review.
(4) The modern awards objective applies to FWA making a variation under this
item, and the minimum wages objective also applies if the variation relates to modern
award minimum wages.
(5) FWA may advise persons or bodies about the review in any way FWA
considers appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of
functions and powers of FWA) has effect as if subsection (2) of that section included a
reference to FWA’s powers under subitem (5).”
[9] Further provisions of the Act are also applicable and relevant to the 2012 Review.
Section 134 provides as follows:
“134 The modern awards objective
What is the modern awards objective?
(1) FWA 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
(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
(e) the principle of equal remuneration for work of equal or comparable
value; 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
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(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.”
[10] Section 284 provides as follows:
“284 The minimum wages objective
What is the minimum wages objective?
(1) FWA must establish and maintain a safety net of fair minimum wages, taking
into account:
(a) the performance and competitiveness of the national economy,
including productivity, business competitiveness and viability, inflation
and employment growth; and
(b) promoting social inclusion through increased workforce participation;
and
(c) relative living standards and the needs of the low paid; and
(d) the principle of equal remuneration for work of equal or comparable
value; and
(e) providing a comprehensive range of fair minimum wages to junior
employees, employees to whom training arrangements apply and
employees with a disability.
This is the minimum wages objective.”
[11] A Full Bench has considered the proper approach to revisiting matters which were
previously agitated under the Part 10A award modernisation process. It stated:
“[86] Although the Tribunal is not, as a non-judicial body, bound by principles of stare
decisis, as a matter of policy and sound administration it has generally followed
previous Full Bench decisions relating to the issue to be determined, in the absence of
cogent reasons for not doing so. In another context three members of the High Court
observed in Nguyen v Nguyen:
“When a court of appeal holds itself free to depart from an earlier decision it
should do so cautiously and only when compelled to the conclusion that the
earlier decision is wrong. The occasion upon which the departure from
previous authority is warranted are infrequent and exceptional and pose no real
threat to the doctrine of precedent and the predictability of the law: see
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Queensland v The Commonwealth (1977) 139 CLR 585 per Aickin J at 620 et
seq.”
[87] While the Tribunal is not a court, the public interest considerations underlying
these observations have been applied with similar, if not equal, force to appeal
proceedings in the Tribunal. In Re Dalrymple Bay Coat Terminal Pty Ltd a Full Bench
summarised the position in relation to single members sitting at first instance as
follows:
“There is not a developed system of stare decisis in this jurisdiction. However it
is clearly desirable for members of the Commission sitting alone to adhere to
Full Bench decisions which are relevant to the matter being determined. Such a
policy aids consistent decision making which in turn provides the parties to
Commission proceedings with greater certainty.”
[88] These policy considerations tell strongly against the proposition that the Review
constitutes a “fresh assessment” unencumbered by previous Tribunal authority.
[89] In circumstances where a party seeks a variation to a modern award in the Review
and the substance of the variation sought has already been dealt with by the Tribunal
in the Part 10A process, the applicant will have to show that there are cogent reasons
for departing from the previous Full Bench decision, such as a significant change in
circumstances, which warrant a different outcome.”2
Evidence
[12] In the proceedings before me evidence was given by Lisa Darmanian, Sally McManus,
Desmond Pumpa, Jennifer Grainger, Katherine Nelson, Katrine Hildyard, Patricia Branson
and Elaine Brown for the ASU and Peter McCloskey, Damien Sloane and Louise Shields for
the employers. That evidence concerned the operation of the current provisions on disability
support, community services and aged care workers from their respective perspectives. I have
found that evidence useful in considering the arguments advanced by the parties in relation to
the particular changes sought to the award. The ASU also relied on an article published in the
Journal of Industrial Relations by Sara Charlesworth and Alexandra Heron3.
[13] I turn to consider the specific variations sought.
Part-time Employment
[14] The ASU proposes the insertion of two new sub-clauses in Clause 10.3 directed at
different objectives. The current Clause 10.3 is set out below:
“10.3 Part-time employment
(a) A part-time employee is one who is engaged to work less than 38 hours per
week or an average of less than 38 hours per week and who has reasonably
predictable hours of work.
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(b) The terms of this award will apply to part-time employees on a pro rata basis
on the basis that the ordinary weekly hours of work for full-time employees are
38.”
[15] The ASU seeks the insertion of new clauses 10.3(c) and 10.3(d). The proposed clause
10.3(c) seeks the introduction of a minimum engagement period as follows:
“(c) Part-time employees will be paid a minimum of three hours at the appropriate
rate, for each engagement.”
[16] The proposed clause 10.3(d) seeks the introduction of a requirement to agree on part-
time engagement details, and to record them in writing, before commencing employment as
follows:
“(d) Before commencing employment, the employer and the employee will agree in
writing on a regular pattern of work including the number of hours to be
worked each week, the days of the week the employee will work and the
starting and finishing times each day. Any agreed variation to the regular
pattern of work will be recorded in writing.”
[17] The ASU submits that the absence of a minimum engagement period for part-time
employees is at odds with the minima provided for other employees under the Award and the
critical mass of awards in existence prior to the making of the 2010 award.
[18] The employers submit that it cannot be said that the creation of a minimum
engagement period for part-time employees is necessary to give effect to the modern awards
objective. Reliance is placed on the absence of such provisions in many other modern awards.
They contest the allegation that a minimum engagement period for part-timers was contained
in a critical mass of superseded awards. The aged care employers point to the special needs of
the home care disability sector where predecessor awards contained a one hour minimum
engagement period.
[19] It is clear that in common with many other awards, the AIRC deliberately did not
insert a minimum engagement period for part-timers in this award. It was obviously
influenced by the variable position under predecessor awards. In my view the introduction of
a minimum engagement period for part-time employees as part of this review would require a
strong case that evaluated the impacts on employees and employers across the various sectors
covered by the award. The application fails to meet this standard.
[20] That part of the application seeking a requirement that part-time arrangements be
agreed in writing prior to commencing employment is a common award provision. It requires
employees to be given clear information as to the basis of their employment when they are
engaged. I consider that the case for such a clause is strong, especially when there is no award
minimum engagement period. In my view the concerns of the employers can be allayed by
standard procedures that comply with the clause, such as those that have been developed for
employers covered by similar provisions in other awards. I will make this change prospective
to allow employers to prepare for the change. If significant practical problems emerge an
[2013] FWC 4141
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appropriate variation can be sought. I will insert the clause sought by the ASU with effect
from 1 August 2013.
Small Business Redundancy
[21] The ASU seeks to vary Clause 12 of the SACS Award, which deals with small
business redundancy. The proposed variation seeks to extend the scope of the current clause
which is confined to employees who perform work previously covered by the Social and
Community Services - Western Australia Award 2002 so that it reads as follows:
“12.7 Small Employers
(a) For the purposes of Clause 33.1(b), small employer means an employer to
whom Subdivision B of Division 11 of the NES does not apply because of the
provisions of s.121(1)(b) of the NES.
(b) Despite the terms of s.121(1)(b) of the Act and subject to Clause 33.1(b), the
remaining provisions of Subdivisions B and C of Division 11 of the NES apply in
relation to an employee who performs any of the work within the Social, Community,
Home Care and Disability Services Industry Award 2010 which immediately prior to 1
January 2010 was in:
(i) Clauses 5 and 14 of the Social and Community Services - Western
Australia Award 2002, or
(ii) the Social and Community Services(ACT) Award 2001, or
(iii) the Social and Community Services (Queensland) Award 2001, or
(iv) the Crisis Assistance Supported Housing (Queensland) Award 1999, or
(v) the Crisis Assistance, Supported Housing (South Australia) Award
2000,
except that the amount of redundancy pay to which an employee is entitled must be
calculated according must be calculated in accordance with the following table:
Employee’s period of continuous
service with the employer on
termination
Redundancy pay period
Less than 1 year Nil
At least 1 year but less than 2 years 4 weeks pay
At least 2 years but less than 3 years 6 weeks pay
At least 3 years but less than 4 years 7 weeks pay
At least 4 years and over 8 weeks pay
(c) Clause 12.7 ceases to operate on 31 December 2014.”
[22] This application was amended during the course of the proceedings so that the
extension of the clause is confined to employees in precisely the same position as those
covered by the clause previously. The ASU relies on the statement by the Full bench in the
[2013] FWC 4141
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2008 Award Modernisation decision that an exception to the retention of the small business
exemption where there was no small business exemption prior to the 2004 Redundancy Case4.
In this regard the ASU relies on the absence of the clause in the exposure draft and infers that
the clause did not pick up employees covered by all awards where there was no existing
exemption.
[23] I am satisfied that there is a case for including each of the awards in the amended
application because the circumstances of each of those awards are the same as the award that
is currently mentioned in the clause. I will vary the Award in the manner sought in the
amended application.
Broken Shifts
[24] The ASU seeks to vary Clause 25.6 to remove the availability of broken shifts in the
disability services sector. The relevant portion of Clause 25.6 which the ASU seeks to vary
currently reads:
“25.6 Broken shifts
This clause only applies to social and community services employees when
undertaking disability services work and home care employees.
...”
[25] The proposed variation to this clause would change the opening of Clause 25.6 to
state:
“This clause only applies to home care employees.”
[26] In the alternative the ASU seeks the introduction of a broken shift allowance.
[27] The ASU contends that the extension of broken shifts to parts of the disability sector
that previously did not permit such arrangements has had a significant impact on the work
practices of many employees, who may be required to work over a period of twelve hours
with an extended break during the shift. Some of the evidence in the proceedings suggested
that some employers are not complying with the Award provisions.
[28] The changes are strongly opposed by the employers. They point to the long standing
availability of broken shifts in some areas covered by the award and the impact of removing
that flexibility for those operations. They submit that award compliance is irrelevant. Further
they submit that payment issues were considered and dealt with by way of a consent variation
in 2012.
[29] As with many other modern awards, this Award replaced a large number of other
awards that applied in different states or parts of the social and community services sector. In
creating a single award for the sector the AIRC had regard to the various provisions that
applied under those previous instruments and applied the statutory tests applicable to the
award modernisation exercise. The retention of arrangements for some became a change for
others not covered by provisions of a particular type. It is understandable therefore that the
[2013] FWC 4141
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change presents some difficulties. It is also understandable that a reversal of the situation
would present difficulties for others. That is particularly so when one considers the blurring of
home care and disability services in practice. I do not consider that a case has been made out
to modify the existing arrangements. The variations to the Award in 2012 also deal with the
position of penalties for broken shifts. No case for a further change has been made out.
Weekend Penalties for Casual Employees
[30] The ASU seeks the removal of the current Clause 26.2, which deals with casual
penalty rates on weekends. Clause 26.2 provides:
“26.2 Casual employees who work less than 38 hours per week will not be entitled to
payment in addition to any casual loading in respect of their employment
between midnight on Friday and midnight on Sunday.”
[31] The ASU submits that this provision has only recently become relevant because of the
operation of the transitional provisions; it is an anomaly because it did not reflect the position
in any previous award and it has its genesis in a draft provided by Jobs Australia with no
explanation by the AIRC for its adoption.
[32] These submissions are contested by some employers who point to the history in some
awards of weekend penalties in lieu of casual loadings for casual employees working on
weekends. Jobs Australia submits that the provision was in the exposure draft of the award
but concedes that the identical award provision in the Aged Care Award was subsequently
amended to provide for a loading for weekend work performed by casuals.
[33] I consider that the history of this provision indicates that it has not been subject to
extensive submissions and consideration previously. I also consider that the approach taken
by the Full Bench in modifying an identical provision in the aged care sector has much to
commend it. It provided for the reverse of the current provision - the payment of penalties but
no loading instead of loading and no penalties5. I will adopt a similar approach for this award.
I direct the ASU to prepare a draft variation. It will apply from 1 August 2013.
Overtime Rates
[34] The ASU proposes the removal of the differentials for overtime between full time,
part-time and casual employees by the deletion of the current Clause 28.1, and its replacement
with the following clause:
“28.1 Overtime rates
Employees will be paid the following payments for all work done in addition to their
rostered ordinary hours on any day prescribed in Clause 25:
(a) disability services, home care and day care employees - for all authorised
overtime on Monday to Saturday, payment will be made at the rate of time and
a half for the first two hours and double time thereafter;
[2013] FWC 4141
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(b) social and community services and crisis accommodation employees - for all
authorised overtime on Monday to Saturday, payment will be made at the rate
of time and a half for the first three hours and double time thereafter;
(c) for all authorised overtime on a Sunday, payment will be made at the rate of
double time;
(d) for all authorised overtime on a public holiday, payment will be made at the
rate of double time and a half; and
(e) overtime rates under this clause will be in substitution for, and not cumulative
upon, the shift premiums prescribed in Clause 29 - Shiftwork and Saturday and
Sunday work premiums prescribed in Clause 26 - Saturday and Sunday work.
[35] The ASU submits that the existing limitation of overtime provisions to full time
employees is anomalous. It is related to the previous issue. The employers contest that the
provision is truly anomalous.
[36] As I have determined that the approach of the Full Bench stated above in relation to
casuals working on weekends should be adopted I will make variations to reflect this position
but otherwise not vary the overtime clause.
Public Holiday Pay for Seven Day Shiftworkers
[37] This matter was remitted to me by the Full Bench dealing with public holiday changes
to modern awards.
[38] The ASU seeks to vary Clause 34.3 of the Award to provide payment for shiftworkers
for public holidays which fall on rostered days off. The proposed variation reads:
“34.3 Seven-day shifts
If a public Holiday falls between Monday and Friday inclusive:
(a) A full-time 7 day week employee, who does not work on any public holiday
because it is a rostered day off, will receive an extra 7 hours 36 minutes pay in respect
of such day.
(b) A part-time 7 day week employee, who does not work on any public holiday
because it is a rostered day off, will receive an extra days’ pay in respect of such day
provided that such payment does not exceed 7 hours 36 minutes pay.”
[39] The ASU submits that shift workers not working on a public holiday because it was
their RDO, were either traditionally entitled to an extra day’s pay or RDOs were not rostered
on public holidays. It submits that the entitlement in question applied under a majority of
predecessor awards in the social and community services sector and covered a critical mass of
employees.
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[40] The claim is opposed by the employers who submit that the arguments of the ASU do
not amount to a merit case and the Full Bench effectively dismissed the same concept in the
other awards dealt with by them.
[41] The Full bench in the Public Holidays case6 said the following in relation to the
general ACTU claim:
“[66] While this aspect of the ACTU’s claim is not without merit it does constitute a
substantial variation of the award safety net and in our view is more appropriately dealt
with in the 4 yearly review of modern awards provided for in s.156 of the FW Act. The
Transitional Review is quite separate from, and narrower in scope than, the 4 yearly
reviews. As the June 2012 Full Bench observed:
“[91] It is important to recognise that we are dealing with a system in transition.
Item 6 of Schedule 5 forms part of transitional legislation which is intended to
facilitate the movement from the WR Act to the FW Act. The Review is a “one
off” process required by the transitional provisions and is being conducted a
relatively short time after the completion of the award modernisation process.
The transitional arrangements in modern awards continue to operate until 1
July 2014. The fact that the transition to modern awards is still occurring
militates against the adoption of broad changes to modern awards as part of the
Review. Such changes are more appropriately dealt with in the 4 year review,
after the transition process has completed. In this context it is particularly
relevant to note that s.134(1)(g) of the modern awards objective requires the
Tribunal to take into account:
“the need to ensure a simple, easy to understand, stable and sustainable
modern award system for Australia . . .”
[67] On the material before us there is insufficient information to adequately assess the
impact of the proposed change. The same may be said of the ACTU’s proposed model
clause as a concept. Further, we consider that the practical operation of the proposed
model provision to different patterns of employment as provided in some of the
modern awards is uncertain and may well create unintended consequences.
[68] We have concluded that this element should not be adopted as a model provision
or included in the named awards as part of this Transitional Review.”
[42] In relation to the specific application of the ASU in relation to this award it said:
“[195] This is directly related to the ACTU RDO model test case proposal, albeit that
unlike other individual union applications, it is directed to a specific group of
employees. The ASU contended that the SACS award was not meeting the modern
awards objective without this provision and that the critical mass of awards applying in
the industry prior to the award modernisation process contained similar entitlements.
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[196] Given our views about the ACTU claim, we are not inclined to grant this
application. However, there are no submissions from the employers dealing directly
with this aspect of the matter in this award.
[197] In these circumstances, we will remit the matter to Vice President Watson, who
is dealing with applications concerning this award more generally, for determination in
light of our decision.”
[43] I do not consider that the ASU has made out a case for the variation. In my view the
matter should be dealt with in the same manner as other awards dealt with by the Full Bench.
I dismiss the ASU application in this regard.
Conclusions
[44] For the above reasons I will make the variations sought to clause 12.7. A new sub-
clause 10.3(c) will be inserted in the form set out as clause 10.3(d) in the ASU’s amended
application. The ASU is directed to provide a draft variation with respect to weekend
penalties for casuals. I will issue a determination covering all variations set out above when
the weekend penalties for casuals clause is settled. The operative date for all variations will be
1 August 2013.
VICE PRESIDENT WATSON
Appearances:
Mr K. Harvey for the Australian Municipal, Administrative, Clerical and Services Union
Mr K. Godfrey for Jobs Australia.
Mr S. Forster for the Australian Federation of Employers and Industry.
Ms S. Haynes for Australian Business Industrial.
Mr N. Barkatsas appeared for the Victorian Employers’ Chamber of Commerce and Industry.
Mr P. Newall, of counsel, for the Aged and Community Services Association of NSW & ACT
Inc and others.
Hearing details:
2013.
Melbourne.
April 9.
May 17.
COMMISSION AUSTRALIA THE SEAL OF FA
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Printed by authority of the Commonwealth Government Printer
Price code C MA000100 PR538242
1 PR531544
2 [2012] FWAFB 5600
3 Sara Charlesworth and Alexandra Heron, ‘New Australian Working Time Minimum Standards: Reproducing the Same Old
Gendered Architecture?’ (2012) 54 Journal of Industrial Relations 164.
4 [2008] AIRCFB 1000 at [60].
5 [2010] FWAFB 2026 at [50] - [59].
6 [2013] FWCFB 2168.
