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]
[2019] FWCFB 6067
DECISION
E AUSTRALIA FairWork Commission
Page
Attachments
Attachment A – outstanding claims 52
Attachment B – oral evidence and witness list 53
Attachment C – draft variation determination 55
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
[2019] FWCFB 6067
4
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
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5
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 Statement1 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 first
tranche of hearings and those matters were dealt with at a Mention before the President at
1.00 pm on 3 April 2019. A transcript of the Mention is available on the Commission’s
website.
[3] We issued a Statement2 on 8 April 2019 confirming that the first part of the
proceedings would deal with the following claims:
S44A – deletion or variation to 24 hour care clause;
S40 – consequential variation to the sleepover clause (arising from the deletion of
the 24 hour care clause (S44A));
S47 – variation to excursions clause;
S51 – variation to overtime clause; and
S57 – variation to public holidays clause.
S19 – first aid certificate renewal;
S43 – deleting the 24 hour care clause; and
S48 – Saturday and Sunday work (casual employees receiving casual loading in
addition to Saturday and Sunday rates).
[4] A list of the remaining claims is at Attachment A. Those claims will be the subject of
a hearing in October 2019.
[5] The matter was heard on 15 – 17 April 2019. The transcript of the proceedings are
available on the 4 yearly review section of the Commission’s website. A summary document
was published on 12 April 2019 outlining the relevant procedural history, the claims being
pursued by United Voice (UV), the Australian Services Union (ASU) and the Housing
Services Union (HSU) and a summary of submissions received.
[6] It is necessary to first say something about the Commission’s task in the Review
before turning to describe the sectors covered by the SCHADS Award and the proposed
variations.
1 Statement – [2019] FWCFB 2207.
2 [2019] FWCFB 2324.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/2019fwcfb2207.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-fwc-background-120419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/030419_am201826.htm
[2019] FWCFB 6067
6
2. The Review
[7] Section 156 of the Fair Work Act 2009 (Cth) (the Act) deals with the conduct of the
Review and s.156(2) provides that the Commission must review all modern awards and may,
among other things, make determinations varying modern awards. In this context ‘review’ has
its ordinary and natural meaning of ‘survey, inspect, re-examine or look back upon’.3 The
discretion in s.156(2)(b)(i) to make determinations varying modern awards in a Review, is
expressed in general, unqualified, terms.
[8] If a power to decide is conferred by a statute and the context (including the subject-
matter to be decided) provides no positive indication of the considerations by reference to
which a decision is to be made, a general discretion confined only by the subject matter, scope
and purposes of the legislation will ordinarily be implied.4 However, a number of provisions
of the Act which are relevant to the Review operate to constrain the breadth of the discretion
in s.156(2)(b)(i). In particular, the Review function is in Part 2-3 of the Act and hence
involves the performance or exercise of the Commission’s ‘modern award powers’ (see
s.134(2)(a)). It follows that the ‘modern awards objective’ in s.134 applies to the Review.
[9] Section 138 (achieving the modern awards objective) and a range of other provisions
of the Act are also relevant to the Review: s.3 (object of the Act); s.55 (interaction with the
National Employment Standards (NES)); Part 2-2 (the NES); s.135 (special provisions
relating to modern award minimum wages); Division 3 (terms of modern awards) and
Division 6 (general provisions relating to modern award powers) of Part 2-3; s.284 (the
minimum wages objective); s.577 (performance of functions etc by the Commission); s.578
(matters the Commission must take into account in performing functions etc), and Division 3
of Part 5-1 (conduct of matters before the Commission).
[10] The modern awards objective is in s.134 of the Act:
SECTION 134 THE MODERN AWARDS OBJECTIVE
What is the modern awards objective?
134(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
(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
3 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [38].
4 O’Sullivan v Farrer (1989) 168 CLR 210 at p. 216 per Mason CJ, Brennan, Dawson and Gaudron JJ.
[2019] FWCFB 6067
7
(ii) employees working unsocial, irregular or unpredictable hours;
or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts; 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
(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).
[11] 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).
[12] The modern awards objective is very broadly expressed.5 It is a composite expression
which requires that modern awards, together with the NES, provide ‘a fair and relevant
minimum safety net of terms and conditions’, taking into account the matters in ss.134(1)(a)–
(h).6 Fairness in this context is to be assessed from the perspective of the employees and
employers covered by the modern award in question.7
[13] The obligation to take into account the s.134 considerations means that each of these
matters, insofar as they are relevant, must be treated as a matter of significance in the
5 Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35].
6 (2017) 265 IR 1 at [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017]
FCAFC 161 at [41]–[44].
7 [2018] FWCFB 3500 at [21]-[24].
[2019] FWCFB 6067
8
decision-making process.8 No particular primacy is attached to any of the s.134
considerations9 and not all of the matters identified will necessarily be relevant in the context
of a particular proposal to vary a modern award.
[14] 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.10 Generally
speaking, 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.11 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.
[15] Further, the matters which may be taken into account are not confined to the s.134
considerations. As the Full Court observed in Shop, Distributive and Allied Employees
Association v The Australian Industry Group12 (Penalty Rates Review):
‘What must be recognised, however, is that the duty of ensuring that modern awards, together
with the National Employment Standards, provide a fair and relevant minimum safety net of
terms and conditions itself involves an evaluative exercise. While the considerations in
s 134(a)-(h) inform the evaluation of what might constitute a “fair and relevant minimum
safety net of terms and conditions”, they do not necessarily exhaust the matters which the
FWC might properly consider to be relevant to that standard, of a fair and relevant minimum
safety net of terms and conditions, in the particular circumstances of a review. The range of
such matters “must be determined by implication from the subject matter, scope and purpose
of the” Fair Work Act (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40;
(1986) 162 CLR 24 at 39-40).’13
[16] Section 138 of the Act emphasises the importance of the modern awards objective:
‘138 Achieving the modern awards objective
A modern award may include terms that it is permitted to include, and must include terms that
it is required to include, only to the extent necessary to achieve the modern awards objective
and (to the extent applicable) the minimum wages objective.’
[17] 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.14
8 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].
9 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [33].
10 National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [105]-[106].
11 See National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [109]-[110]; albeit the Court was
considering a different statutory context, this observation is applicable to the Commission’s task in the Review.
12 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161.
13 Ibid at [48].
14 See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR
227.
[2019] FWCFB 6067
9
[18] In 4 Yearly Review of Modern Awards - Penalty Rates (Hospitality and Retail Sectors)
Decision (the Penalty Rates Decision)15 the Full Bench summarised the general propositions
applying to the Commission’s task in the Review, as follows:
‘1. The Commission’s task in the Review is to determine whether a particular modern award
achieves the modern awards objective. If a modern award is not achieving the modern awards
objective then it is to be varied such that it only includes terms that are ‘necessary to achieve
the modern awards objective’ (s.138). In such circumstances regard may be had to the terms of
any proposed variation, but the focal point of the Commission’s consideration is upon the
terms of the modern award, as varied.
2. Variations to modern awards must be justified on their merits. The extent of the merit
argument required will depend on the circumstances. Some proposed changes are obvious as a
matter of industrial merit and in such circumstances it is unnecessary to advance probative
evidence in support of the proposed variation. Significant changes where merit is reasonably
contestable should be supported by an analysis of the relevant legislative provisions and,
where feasible, probative evidence.
3. In conducting the Review it is appropriate that the Commission take into account previous
decisions relevant to any contested issue. For example, the Commission will proceed on the
basis that prima facie the modern award being reviewed achieved the modern awards
objective at the time it was made. The particular context in which those decisions were made
will also need to be considered.
4. The particular context may be a cogent reason for not following a previous Full Bench
decision, for example:
the legislative context which pertained at that time may be materially different from the
Fair Work Act 2009 (Cth);
the extent to which the relevant issue was contested and, in particular, the extent of the
evidence and submissions put in the previous proceeding will bear on the weight to be
accorded to the previous decision; or
the extent of the previous Full Bench’s consideration of the contested issue. The absence of
detailed reasons in a previous decision may be a factor in considering the weight to be
accorded to the decision.’16
[19] Where an interested party applies for a variation to a modern award as part of the
Review, the proper approach to the assessment of that application was described by a Full
Court of the Federal Court in CFMEU v Anglo American Metallurgical Coal Pty Ltd (Anglo
American): as follows:17
‘[28] 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
15 [2017] FWCFB 1001.
16 Ibid at [269].
17 CFMEU v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123.
[2019] FWCFB 6067
10
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.
[29] Viewing the statutory task in this way reveals that it is not necessary for the Commission
to conclude that the award, or a term of it as it currently stands, does not meet the modern
award objective. Rather, it is necessary for the Commission to review the award and, by
reference to the matters in s 134(1) and any other consideration consistent with the purpose of
the objective, come to an evaluative judgment about the objective and what terms should be
included only to the extent necessary to achieve the objective of a fair and relevant minimum
safety net.’
[20] In the same decision the Full Court also said: ‘...the task was not to address a
jurisdictional fact about the need for change, but to review the award and evaluate whether the
posited terms with a variation met the objective.’18
[21] We will apply the above principles in this decision.
3. Social, Community, Home Care and Disability Services Industry Award 2010
3.1 General
[22] The SCHADS Award covers employers in the following sectors:
crisis assistance and supported housing;
social and community services (including social work, recreational work, welfare
work, youth work or community development work, including organisations which
primarily engage in policy advocacy or representation on behalf of organisations
carrying out such work and the provision of disability services including the
provision of personal care and domestic and lifestyle support to a person with a
disability in a community and/or residential setting including respite centre and day
services);
home care (the provision of personal care, domestic assistance or home
maintenance to an aged person or a person with a disability in a private residence);
and
family day are (the operation of a family day care scheme for the provision of
family day care services),
and their employees in the classifications listed in Schedules B to E of the award.
[23] There are 4 levels within the Australian and New Zealand Industrial Classification
(ANZSIC) structure: division, subdivision, group and class. Using a framework19 developed
18 Ibid at [46].
19 Preston M, Pung A, Leung E, Casey C, Dunn A and Richter O (2012) ‘Analysing modern award coverage using the
Australian and New Zealand Industrial Classification 2006: Phase 1 report’, Research Report 2/2012, Fair Work
Australia.
[2019] FWCFB 6067
11
by Fair Work Commission staff, the SCHADS Award is ‘mapped’ to the Other residential
care services and Other social assistance services industry classes within the ANZSIC.
[24] The information below presents an employee profile of the Social, community, home
care and disability services sector from the Census of Population and Housing (Census). The
ABS Census of Population and Housing (Census) is the only direct ABS data source with
information on employment for this sector. The most recent Census data is from August 2016.
[25] The August 2016 Census data show that there were around 168 000 employees in the
Social, community, home care and disability services industry. Table 1 compares
characteristics of employees in this industry with employees in ‘all industries’.
Table 1: Employee characteristics of Social, community, home care and disability services
industry, 2016
Social, community,
home care and disability
services industry
All industries
(No.) (%) (No.) (%)
Gender
Male 43 797 26.1 4 438 604 50.0
Female 123 996 73.9 4 443 125 50.0
Total 167 793 100.0 8 881 729 100.0
Full-time/part-time status
Full-time 79 233 49.7 5 543 862 65.8
Part-time 80 213 50.3 2 875 457 34.2
Total 159 446 100.0 8 419 319 100.0
Highest year of school completed
Year 12 or equivalent 103 982 62.8 5 985 652 68.1
Year 11 or equivalent 16 679 10.1 856 042 9.7
Year 10 or equivalent 34 586 20.9 1 533 302 17.4
Year 9 or equivalent 6174 3.7 273 180 3.1
Year 8 or below 3460 2.1 112 429 1.3
Did not go to school 590 0.4 26 356 0.3
Total 165 471 100.0 8 786 961 100.0
Student status
Full-time student 8068 4.8 715 436 8.1
Part-time student 13 367 8.0 491 098 5.6
Not attending 145 005 87.1 7 618 177 86.3
Total 166 440 100.0 8 824 711 100.0
Age (5 year groups)
15–19 years 1797 1.1 518 263 5.8
20–24 years 10 990 6.5 952 161 10.7
25–29 years 16 707 10.0 1 096 276 12.3
30–34 years 17 663 10.5 1 096 878 12.3
35–39 years 16 515 9.8 972 092 10.9
40–44 years 18 998 11.3 968 068 10.9
45–49 years 21 055 12.5 947 187 10.7
50–54 years 21 977 13.1 872 485 9.8
55–59 years 20 345 12.1 740 822 8.3
60–64 years 14 098 8.4 469 867 5.3
[2019] FWCFB 6067
12
Social, community,
home care and disability
services industry
All industries
(No.) (%) (No.) (%)
65 years and over 7657 4.6 247 628 2.8
Total 167 802 100.0 8 881 727 100.0
Average age 44.0 39.3
Hours worked
1–15 hours 20 995 13.2 977 997 11.6
16–24 hours 25 650 16.1 911 318 10.8
25–34 hours 33 569 21.1 986 138 11.7
35–39 hours 42 488 26.6 1 881 259 22.3
40 hours 17 614 11.0 1 683 903 20.0
41–48 hours 8372 5.3 858 120 10.2
49 hours and over 10 755 6.7 1 120 577 13.3
Total 159 443 100.0 8 419 312 100.0
Note: Part-time work is defined as employed persons who worked less than 35 hours in all jobs during the week prior to Census
night. Totals may not sum to the same amount due to non-response. For full-time/part-time status and hours worked, data on
employees that were currently away from work (that reported working zero hours), were not presented. .
Source: ABS, Census of Population and Housing, 2016
[26] The profile of Social, community, home care and disability services industry
employees differs from the profile of employees in ‘All industries’ in four aspects:
Social, community, home care and disability services industry employees are
predominately female (73.9 per cent, compared with 50.0 per cent of all
employees);
around half (50.3 per cent) of Social, community, home care and disability services
industry employees are employed on a part-time or casual basis (i.e., less than 35
hours per week), compared with 34.2 per cent of all employees;
around half (50.7 per cent) of Social, community, home care and disability services
industry employees are aged 45 years and over, compared with 36.9 per cent of all
employees; and
fewer than two-thirds (62.8 per cent) of Social, community, home care and
disability services industry employees have completed Year 12 or equivalent,
compared with 68.1 per cent of all employees.
[27] Interested parties were invited to comment on the data set out in this part of our
decision. In a submission dated 17 May 2019, the NDS notes that the industry profile set out
above draws on census data for employees working in the ‘other residential care services’ and
‘other social assistance services’ industry classes and that the use of this data is consistent
with the approach taken by the Commonwealth in its submissions of 18 November 2010 in
the ERO case for social and community service workers (C2010/3131). In that submission the
Commonwealth also pointed to a number of limitations to this approach but despite these
limitations concluded that it provided a reasonable basis for estimating the size and
[2019] FWCFB 6067
13
characteristics of the sector.20 The NDS notes that no party disputed the approach taken by the
Commonwealth in its ERO submission, regarding the size and characteristics of the sector and
submits:
‘The estimate of employment in the current industry profile published by FWC is a similar
order of magnitude to that of estimates provided by the Commonwealth government in the
equal remuneration case.
By using data for the same industry clauses as was used in submissions for the equal
remuneration case, the same limitations of precisely defining the sector identified by the
Commonwealth will also apply.
NDIS concludes that the approach taken in the Industry Profile results in a reasonable estimate
of the likely size of the sector.’21.
3.2 Survey of the members of the employer organisations
[28] During the course of these proceeding a draft survey instrument was prepared by the
Commission to elicit information relating to some of the matters before us. A copy of the
draft survey instrument was published on the Commission’s website and interested parties
were provided an opportunity to file written submissions regarding its contents. The survey
questions were finalised in consultation with the interested parties.
[29] The survey was administered via an online survey platform which was ‘open’ for the 5
week period from 18 May 2019 until 19 June 2019. Participation in the survey was limited to
members of the parties in the proceeding. The survey was not designed to be representative
of all enterprises employing workers covered by the SCHADS Award.
[30] The survey was sent to about 2980 enterprises22 and 854 provided a complete response
(an approximate response rate of just under 30 per cent).
[31] A report setting out the survey results was published by the Commission’s research
section on 26 June 2019 and parties were given an opportunity to file written submissions on
the content of the report and the survey results. Submissions were filed by AFEI, AiGroup,
ASU and UV. ABI filed a submission in reply. The submissions were the subject of oral
argument at a hearing on 16 July 2019.
[32] UV and the ASU contended that the survey was ‘methodologically flawed principally
because of the manner in which the sample was constructed’.23 The short point put was that
the survey was of members of various employer organisations and that there was no way of
knowing whether the membership of those organisations was representative of all employers
covered by the SCHADS Award.
20 Australian Government submissions in matter C2010/3131, 18 November 2010.
21 NDS Submissions 17 May 2019 at [16] – [18].
22 This figure is an approximation as it may include organisations that are members of more than one party to the matter and
may have been sent the survey more than once.
23 Mr Bull transcript 16 July 2019 at [18].
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-abi-anors-survey-100719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826--sub-uv-030719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-survey-050719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-030719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-survey-030719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-corr-fwc-260619.pdf
[2019] FWCFB 6067
14
[33] We accept that on the material before us the survey results cannot be said to be
representative of all employers covered by the SCHADS Award and, accordingly, the results
cannot properly be extrapolated to the relevant population. That said, the Survey Results are
the best evidence available to us in respect of certain issues. In particular, the results provide
an indication of the utilisation of 24 hour shifts and the pattern of engagement of casual
employees amongst a substantial number of employers covered by the SCHADS Award.
[34] It seems to us that the Survey Results are particularly relevant to the claim by the HSU
to delete the 24 hour care clause and the Union claims to increase the rates of pay payable to
casual employees when working overtime and on weekends and public holidays.
[35] The HSU proposed that the 24 hour care clause be deleted on the basis that the 24
hour provision is unclear and rarely used.24
[36] The HSU also advanced witness evidence about people’s direct experience within
parts of the industry and particular geographical areas as to the use of the 24 hour care clause.
But that evidence is limited to the direct experiences of the witnesses concerned and cannot be
taken as evidence of what takes place in every award covered business.
[37] The Survey Results show that around one in ten enterprises (11.2 per cent) that
responded to the Survey used 24 hours shifts in the one year period between 1 March 2018
and 1 March 2019.25 This supports a finding that 24 hour care shifts are used in the industry.
[38] Further, as pointed out by AFEI:
‘Given that 24 hour shift provisions only apply to home care employees, the 11.2% of all
respondents using 24 hour shifts could be as high as one third of all home care respondents.’26
[39] In addition, of those providers that do use the 24 hour care clause, the Survey Results
show that on average the number of times they rostered a home care employee to work a 24
hour shift was 304 per year. 27 Hence, while not every employer uses the clause, those who do
utilise 24 hour shifts do so regularly.
[40] The HSU is also seeking variations to clause 26, Saturday and Sunday work, and
clause 34, Public Holidays, to ensure that casual employees receive the casual loading in
addition to the relevant penalty rates. Further, UV is seeking to amend clause 28 to ensure
that casual employees who work overtime are paid the casual loading in addition to overtime
rates.
[41] The Survey Results show that in the 4 week period from 4 to 31 March 2019, around
three-quarters (75.4 per cent) of enterprises that responded to the survey employed casual
employees that were covered by the SCHADS Award (Chart 7). Of the enterprises that
employed casual employees in that 4 week period, one quarter had casual employees that
worked in excess of 38 hours per week or 76 hours per fortnight (Chart 8). Around three-
24 HSU Submissions of 15 February 2019, at paragraph 64.
25 Page 11.
26 AFEI written submission 3 July 2019 at [11].
27 AM2018/26, Survey – SCHADS Award, 2019, Question 14
[2019] FWCFB 6067
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quarters of enterprises (76.4 per cent) responded that casual employees worked on a Saturday
during this period, and around seven in ten enterprises (69.9 per cent) responded that casual
employees worked on a Sunday.
[42] We also accept that the Survey Results demonstrate that the proposed variations
advanced by the HSU and UV in respect of casual employees would materially increase the
rates of pay payable to casual employees when working overtime, on weekends, and on
Public Holidays.
[43] Indeed UV acknowledged that there appears to be a high utilisation of casual labour by
some respondents.28
3.3 Are SCHADS Award reliant employees low paid?
[44] One of the s.134 considerations which we are obliged to take into account in giving
effect to the modern awards objective is ‘the needs of the low paid’ (s.134(1)(a)). In the
Penalty Rates Case the Commission determined that a threshold of two-thirds of median full-
time wages provides ‘a suitable and operational benchmark for identifying who is low paid’,29
within the meaning of s.134(1)(a). There is, however, no single accepted measure of two-
thirds of median (adult) ordinary time earnings. The two main ABS surveys of the distribution
of earnings which are relevant are the Characteristics of Employment Survey30 (the CoE) and
the Survey of Employee Earnings and Hours31 (the EEH).32
[45] The most recent data for median earnings is for August 2018 from the ABS
Characteristics of Employment (CoE) survey. Data on median earnings are also available
from the Survey of the EEH for May 2018. Using the CoE survey data the operational
benchmark for identifying the ‘low paid’ is $886.67 per week. Using the EEH data the figure
is $973.33.
[46] In addition to the minimum rates set out in clause 15 and 16 of the SCHADS Award
some employees covered by the award (SACS classification 2-8 and Crisis accommodation
classification 1-4) are entitled to equal remuneration payments pursuant to the Equal
Remuneration Order (ERO) that commenced on 1 July 2012. The cumulative effect of the
award minimum rates and the ERO payments is set out in a joint submission filed by AFEI,
ASU and NDS on 21 May 2019.
[47] Based on this data, a proportion of employees covered by the SCHADS Award may be
regarded as ‘low paid’ within the meaning of s.134(1)(a).
4. The SCHADS Sector and the NDIS
28 Transcript at [114].
29 [2017] FWCFB 1001 at [166].
30 ABS, Characteristics of Employment, Australia, August 2017, Catalogue No. 6333.0.
31 ABS, Employee Earnings and Hours, Australia, May 2016, Catalogue No. 6306.0.
32 [2017] FWCFB 1001 at [166].
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[48] The social, community, home care and disability services industry is undergoing
structural change by reason of reforms that have been (and continue to be) implemented
across the country.
[49] The key features of the National Disability Insurance Scheme (the NDIS) and the
similar reforms in the home care sector have been detailed in materials filed in the course of
the review of the SCHADS Award, including in:
Cortis, Natasha, Working under the NDIS: Insights from a survey of employees in
disability services (Report prepared for HSU, ASU and UV, June 2017);
Cortis, Natasha et al, Reasonable, necessary and valued: Pricing disability services
for quality support and decent jobs (SPRC Report 10/17, June 2017);
McKinsey & Company, Independent Pricing Review: National Disability Insurance
Agency (Final Report, February 2018);
National Disability Services, Australian Disability Workforce Report (Report,
February 2018);
National Disability Services, State of the Disability Sector Report (Report, 2018).
Productivity Commission, National Disability Insurance Scheme (NDIS) Costs
(Costs Position Paper June 2017);
Productivity Commission, National Disability Insurance Scheme (NDIS) Costs
(Study Report, October 2017);
Australian Government Department of Health, The Aged Care Workforce, 2016,
March 2017;
NDIS Price Guide for Victoria, 1 July 2018; and
NDIS 2018-2019 Price Guide Updates Summary.
[50] The two main reforms are the NDIS and the introduction of ‘Consumer Directed Care’
for home care packages. Other similar reforms are also taking place in respect of State and
Territory funding models. Broadly speaking, these reforms involve a move away from a block
funding model to an individualised funding model whereby individual consumers receive a
tailored, individualised care plan (with individualised funding), under which consumers have
a greater ability to choose how care services are provided to them (including what, when,
where, and by whom those services are provided).
[51] The aged care industry is comprised of residential aged care (covered by the Aged
Care Award 2010) and home care, which is covered by the SCHADS Award. In the non-
residential aged care sector, there are two main programs under which services are delivered:
the Commonwealth Home Support Program (CHSP), and the Home Care Packages (HCP)
Program. Entry to the system is though My Aged Care operated by the Federal Government.
The system is designed, regulated and funded by the Federal Government.
[52] In the home care sector, Federal Government reforms announced in 2012 created
Consumer Directed Care (CDC). CDC is a service delivery model designed to give more
choice and flexibility to consumers, by allowing individuals to have more control over the
types of care and services they access and the delivery of those services (including who
delivers the services and when).
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/13i-am201826-ndis-price-guide-update-summary-hsu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/13h-am201826-ndis-2018-price-guide-vic-hsu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/13g-am201826-adgh-vic-hsu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/13f-am201826-productivitycommission-ndis-costs-hsu-150219.pdf
https://www.pc.gov.au/inquiries/completed/ndis-costs/position/ndis-costs-position-overview.pdf
https://www.pc.gov.au/inquiries/completed/ndis-costs/position/ndis-costs-position-overview.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/13e-am201826-ndis-stateofthedisibilitysector-hsu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/d-am201826-report-ndis-hsu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/c-am201826-report-mckinsey-hsu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/c-am201826-report-mckinsey-hsu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/b-am201826-rp-cortis-hsu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/b-am201826-rp-cortis-hsu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/a-am201826-rp-cortis-hsu-150219.pdf
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[53] CDC was first piloted as a model of care in 2010-11 and from July 2015, all Home
Care Packages must be delivered on a CDC basis.
[54] Prior to the introduction of CDC, Home Care Packages were provided as a bundled set
of services relatively tightly-specified by government. Availability of Commonwealth funding
for these services had been capped by the allocation of funded “places” to a limited group of
approved providers (as provided for in the Aged Care Act 1997), by the funding levels
prescribed and by a cap on consumer fees.
[55] Home Care Packages are generally available to older persons who need coordinated
services to help them to stay in their home, and to younger persons with a disability, dementia
or other special care needs that are not met through other specialist services.
[56] The NDIS was established under the National Disability Insurance Scheme Act 2013
with the objectives of:
(a) supporting the independence and social and economic participation of people with
disability;
(b) providing reasonable and necessary supports, including early intervention
supports, for participants;
(c) enabling people with disability to exercise choice and control in the pursuit of
their goals and the planning and delivery of their supports;
(d) facilitating the development of a nationally consistent approach to the access to,
and the planning and funding of, supports for people with disability; and
(e) promoting the provision of high quality and innovative supports to people with
disability.
[57] The NDIS supports people under the age of 65 who have a permanent and significant
disability. Under the NDIS, individual consumers (eligible ‘participants’) have greater choice
and control over how their services are delivered, which includes control over what services
are provided to them, when those services are provided, where those services are provided,
and by whom those services are provided. Participants have the ability to choose their service
providers, and to terminate their service arrangements at their discretion.
[58] Each participant’s supports are set out in a ‘NDIS Plan’ which is developed by the
National Disability Insurance Authority (NDIA) in consultation with the individual
participant. Service providers do not have any control over, or input into, the NDIS Plans.
NDIS Plans specify a ‘global’ funding amount for different categories of ‘fixed’ and/or
‘flexible’ supports, but typically do not specify details of how or when those supports are to
be provided.
[59] Participants then typically enter into a service agreement with one or more service
providers for the delivery of services outlined in their NDIS Plan.
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[60] On 1 May 2019 we issued Directions33 inviting the parties to comment on whether
they took issue with the observations made about the NDIS at paragraphs [554] and [630] –
[633] of the Full Bench decision in the Part time employment and casual employment
proceedings issued on 5 July 2017.34 The relevant passages from that decision are set out
below:
‘[554] The NDIS, broadly speaking, funds persons with disability directly, rather than via
disability services organisations, and thereby allows persons with disability and their carers to
purchase the support services they need in accordance with individualised NDIS plans. This
has meant that persons with disability are able to exercise a far greater level of choice and
control over how, when, where and by whom their disability support services are delivered.
ABI contends that the NDIS is radically changing the disability support services sector, in that
employers have lost a large degree of control over when work is required to be performed, and
accordingly require much greater flexibility in the allocation of working hours to part-time
employees so that they can operate in a way which is responsive to client demand. Absent
such flexibility, ABI contends that there is a substantial risk that the workforce in the sector,
which will need to expand significantly in order to meet the demand for individualised
services generated by the NDIS, will become casualised. The ABI claim was supported by
Jobs Australia, which is a national peak body of non-profit organisations that assist
disadvantaged people into work.
…
[630] We have earlier briefly described the concept of the NDIS. Participants in the scheme
(and their carers) are required to prepare a NDIS plan in conjunction with the National
Disability Insurance Agency (NDIA) which, in an itemised way, sets out their support needs
and the way in which these support needs are to be met. Supports may be fixed – that is,
regularly required at a fixed time each day or week – or be flexible, which means the
participant has scope to rearrange the supports to suit themselves within the overall budget. In
the early trial phase, these plans were prepared in a highly prescriptive format, but by the time
of hearing they had become far less so. An example plan that was provided to us35 set out the
basic details of the participant and his/her immediate support persons and lifestyle, the
participant’s goals for the plan, and the supports to be provided. The supports were identified
under the headings of transport to access daily activities; assistance with daily life at home and
in the community, education and at work; supported independent living; improved daily skills;
assistive technology; improved living arrangements; and improved life funding. Specific
supports were identified in the example plan under each heading, and an annual budget (for
the period 15 June 2016 to 14 June 2017) set out for each support item. For some items, a
maximum number of hours of a particular service per week or per year were specified. The
example plan required each identified support to be purchased as described, and prohibited
swaps from one item to another. The items in the plans are budgeted for in accordance with a
“NDIS Price Guide” issued by the NDIA. In pricing items, the NDIA has been aggressive in
trying to set the absolute minimal cost so as to control the cost to government of the NDIS as a
whole. Labour costs are calculated by reference to the SCHCDSI Award.
[631] Once the plan is prepared, the majority of participants who are self-managed (as distinct
from having their plans managed by a support agency) may then “buy” the services budgeted
for in the plan from providers which are registered with the NDIA (although the actual
33 Directions 1 May 2019, at [14] – [16].
34 [2017] FWCFB 3541.
35 Exhibit 255.
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payment is made by the NDIA to the provider in accordance with the plan and the NDIS Price
Guide). There is no obligation to obtain all the services in a plan from a single provider, so a
participant may have multiple service providers. The participant, once he or she has chosen the
provider of a specific service, will then enter into a service agreement with the provider. We
were provided with an example of a service agreement,36 which included the following
provisions of significance:
the provider was required to “Work with you the Participant to provide supports that suit
your needs and at the times preferred by you” (underline added) and to “Consult with you
regarding decisions about how your supports are provided”;
the participant was required to keep the provider “informed of any changes to my support
need which may impact on the supports they provide”;
in relation to payment for the services provided, “The NDIA sets the prices to be claimed for
each support item and [the provider] may choose to accept or decline the provision of certain
support items if the price set does not cover business operating costs”;
in relation to variations to the participant’s plan, “The Participant and/or their Plan nominee
is responsible for informing [the provider] when their NDIA Plan has been reviewed and/or
modified in any way ... [the provider] requires this information so your Service Agreement
can be reviewed and modified to ensure it reflects the most current supports you require [the
provider] to provide”;
the participant was requested to inform the provider at the time of developing or reviewing
the Service Agreement if they intended using multiple service providers “to ensure that
sufficient support hours and funds are available as per the Service Agreement” and “Failure
to provide this information may result in over-use of certain supports and impact on [the
provider’s] ability to claim for supports provided”;
in relation to cancellations of supports by the participant, “We understand that situations
may occur that mean participants need to change or cancel support. When this happens, it is
appreciated if participants provide at least 24 hours notice to reduce any impact on
business... Should the Participant not provide 48 hours notice of his or her inability to
participate in the service, [the provider] will be entitled to claim from NDIA for payment of
such Service... When cancellations or ‘no shows’ exceed 8 times per year, [the
provider] must notify the NDIA so that consideration can be made to review the plan”; and
in relation to termination of the service agreement by either party, a minimum of 4 weeks’
notice was required, and “If the participant chooses to cease services or engages the
services of another provider without giving the agreed notice, an early exit payment will be
charged of up to 4 weeks”
[632] Until mid-2016, the NDIS was implemented in various trial areas throughout the
country. The full implementation rollout began in July 2016, but it is not expected to be
completed until 2019. It is expected that the total number of participants in the NDIS will
increase to about 460,000 by 2019, about 20 times the number of participants in 2016. Many
of the new participants will not be living in institutionalised care or group homes with
regimented support demands, but will require supports that are shorter in duration and more
flexible in order to undertake work, education and social activities. The number of registered
providers is also expected to increase significantly. In 2016 there were over 2,000 registered
providers, the large majority of which had not been disability support providers prior to the
advent of the NDIS.
36 Exhibit 230.
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[633] At the time of hearing, according to data collected and benchmarked by NDS, there
were about 26,000 disability support workers in Australia, of which 23% were full-time, 35%
were part-time, 37% were casual, and 6% were on fixed-term contracts. This workforce is
predominantly female. It was estimated in 2011 that the workforce would have to double by
the time of full implementation of the NDIS. There was some evidence that some employers
had increased the usage of casuals in order to meet the work demands of the NDIS, against
their preference to employ mainly permanent part-time employees, mainly because of the
variability associated with the one-on-one attendances which are a new industry feature
introduced as part of the NDIS.’
[61] Comments on the above passages were made by:
ABI on 19 May 201937 and 3 June 2019;38
NDS on 17 May 2019;39
HSU on 17 May 2019;40
UV on 17 May 2019;41
ASU on 17 May 2019;42 and
AFEI on 22 May 2019.43
[62] ABI confirmed that its clients broadly agree with the observations made at paragraphs
[554] and [630] – [633] of the Full Bench decision.44 As to the description in [631] of the
way in which participants are able to access services, ABI notes that the description is
accurate but states its understanding that the terms of Service Agreements, and the way in
which those terms are enforced, vary across operators.45
[63] In relation to the observations about client cancellations at [631], ABI notes that the
most recent NDIS Price Guide provides a ‘limited ability’ to charge participants for cancelled
services’ and that under the current rules:
(i) providers are not permitted to charge a cancellation fee where a participant cancels a
scheduled service and provides notice of cancellation prior to 3pm the day before the
scheduled service;
(ii) providers are permitted to charge up to 90% of the agreed price for a cancelled
scheduled appointment where the service is cancelled after 3pm the day before the
scheduled service (however a provider may only charge a cancellation fee against a
37 ABI submission 19 May 2019 at 4.1 – 4.4
38 ABI reply submission 3 June 2019 at 4.1 – 4.6
39 NDS submission 17 May 2019 at 32 - 42
40 HSU submission 17 May 2019 at 2 - 29
41 UV submission 17 May 2019 at 1 - 26
42 ASU submission 17 May 2019 at 30 - 36
43 AFEI submission 22 May 2019 at 26 - 36
44 ABI submission 19 May 2019 at 4.2
45 Ibid at 4.3.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-220519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-170519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uv-170519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-170519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-170519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-and-ors-030619.pdf
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participant plan up to 12 times per year for personal care and community access
supports, following which the NDIA will require the provider to demonstrate they are
taking steps to actively manage cancellations).46
[64] The NDS submits that the observations of the Part time and Casual Employment Full
Bench were accurate at the time they were made and remain ‘broadly relevant’ in 2019,
however, since the 2017 Full Bench observations the NDIS has continued to grow and has
undergone some operational changes.47 Similarly, AFEI notes that since 2017 there have
been several developments in the composition of the disability services industry and its
workforce.48
[65] The HSU and UV take issue with some of the observations made in the extracted
passages from the Part time and Casual Employment decision, in particular the reference in
[554] to the ABI’s contention that ‘employers have lost a large degree of control over when
work is required to be performed, and accordingly require much greater flexibility in the
allocation of working hours to part-time employees so that they can operate in a way which is
responsive to client demand’.
[66] We accept, as the HSU submits, that [554] is simply a summary of ABI’s claim and its
characterisation of how the NDIS operates; it does not represent the concluded view of the
Full Bench on the operation of the NDIS. So much is clear from [636], [639] and [640] of the
Full Bench decision which effectively repudiates ABI’s characterisation of how the NDIS
operates, in particular:
‘[636] The evidence makes it clear that there remains considerable uncertainty as to how the
NDIS will operate and what will be the pattern of service demand from participants once the
NDIS is fully implemented …
[639] The basic elements of the NDIS lend themselves to reasonably predictable workforce
planning. Many of the forms of support that are funded in individualised NDIS plans are …
regular and predictable …
[640] … we consider it unlikely that the market for disability support services which the
NDIS is establishing will give participants the degree of market power that some of the
employer witnesses implicitly suggested it would.’
[67] The HSU also takes issue with a number of the other observations made in the
extracted passages. We accept that a number of the observations made by the Part time and
Casual Employment Full Bench have (understandably enough, given the passage of time)
been overtaken by events as the NDIS continues to evolve. We have not found it necessary to
address each of the issues raised by the HSU as we need not resolve each of the contested
matters in order to deal with the claims before us. As AFEI put it: ‘To provide a
comprehensive account of the operation and nature of the NDIS more recently, would be a
substantial exercise’.49 Such an exercise is not necessary in the context of these proceedings.
For present purposes we would simply make the following observations:
46 Ibid at 4.4 and see page 18, NDIS Price Guide New South Wales, Queensland, Victoria, Tasmania (Valid from: 1 February
2019)
47 NDS submission 17 May 2019 at 33-34
48 AFEI submission 22 May 2019 at [26] – [ 36]
49 AFEI submission 22 May 2019 at [28]
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1. The NDIS may be characterised as a move from a block funded welfare model of
support to a fee-for-service market based approach.50
2. The initial roll out targets for the NDIS have not been met. The NDS submits that the
current rate of roll out is about 75 per cent of the level originally planned in 2011 and
that the rollout will extend ‘well into 2019-20 and is unlikely to be completed before
then’.51 Similarly, the HSU submits ‘The rollout targets have not been met and it can
be expected that the rollout will continue well into 2020’.52
3. According to the NDIA Quarterly Report, as at 31 March 2019:
there were 277,155 NDIS participants, of whom 85,489 were receiving support for
the first time;
the total number of registered providers was 20,208, of whom 57 per cent (11,418)
were ‘active’ as at 31 March 2019, meaning that they had claimed a payment from
the NDIA for delivering a service. 45 per cent of the total number of providers
were individual/sole traders.53
4. The NDS (2019), Australian Disability Workforce Report of July 2018 notes that:
48 per cent of disability support workers are permanent (full time or part time) and
46 per cent are casual
the trend towards casualisation is not universal across the sector and is more
prevalent in small and medium organisations and absent in large organisations.54
5. The NDS has developed a data metrics tool called ‘Workforce Wizard’, to assist
disability organisations track workforce trends. This was the source of the data
referred to by the Part time and Casual Employment Full Bench at [633] of its July
2017 decision. Since the NDS July 2018 Workforce Report the NDS has obtained data
from the ‘Workforce Wizard’ for the December 2018-19 quarter (including from 187
organisations comprising 41,119 workers in the disability and allied health sectors),
which shows that:
the average proportion of casual employment increased from 40.9 per cent in
September 2015 to 45.2 per cent in December 2018 (but has remained at around 45
per cent since September 2017, with the exception of the September 2018 quarter,
at 47.3 per cent).
Based on this data the NDS submits that:
‘While disability service providers are hiring more casual workers, the trend towards increased
casual employment since 2015 appears to have stabilised.’55
50 Productivity Commission Study Report, October 2017, National Disability Insurance Scheme (NDIS) Costs, p8.
51 NDS submission 17 May 2019 at [35].
52 HSU submission 17 May 2019 at [27].
53 Ibid at [28]; AFEI submission 22 May 2019 at [32].
54 NDS (2018) Australian Disability Workforce Report July 2018 at p6.
55 NDS submission 17 May 2019 at [41].
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[68] ABI submits that aspects of the sector are under significant financial strain and that a
‘regular complaint’ of service providers in the disability services sector is the inadequacy of
the NDIS pricing system.56
[69] ABI contends that the legitimacy of this concern has been borne out in a range of
studies, including in the Final Report of the Independent Pricing Review commissioned by the
NDIA and published by McKinsey & Company dated February 2018.57 Amongst a range of
findings, the Final Report of the Independent Pricing Review found:58
(a) “signals that concerning” in the attendant care market, including a “significant proportion
of providers that currently have unprofitable operating models”; and
(b) while some providers have operating models that are profitable at the current price points,
“many are struggling, particularly traditional providers delivering attendant care supports”,
which is attributable to a combination of factors, including:
(i) higher overheads;
(ii) challenges in adapting to unit pricing and NDIA systems improvement
opportunities;
(iii) lower utilisation of workers; and
(iv) higher labour costs.
[70] Ai Group (and other employer parties) also advanced submissions regarding the cost
pressures on employers in the sector, the lack of profitability and the potential adverse impact
of granting the Unions’ claims.
[71] In response, the HSU led evidence from Mr Mark Farthing, a senior policy adviser for
HSU Victoria No. 2 Branch59 regarding some recent additional funding allocated to the NDIS.
On 18 April 2019 the HSU wrote to the Commission attaching a media release dated 30
March 2019 by the Hon Paul Fletcher MP, Minister for Families and Social Services referred
to in the course of Mr Farthing’s evidence (the Media Release).
[72] In a Statement60 issued on 23 April 2019 we provided an opportunity for parties to file
a short written submission in response to the material filed by the HSU. Ai Group
subsequently filed a submission in response to that material.
[73] The Media Release announces an increase to price limits for therapy, attendant care
and community participation under the NDIS, effective 1 July 2019. According to the Media
Release these price increases ‘will inject more than $850 million into the NDIS market in
2019-20. The Media Release also states:
‘Minister for Families and Social Services, Paul Fletcher, and Assistant Minister for Social
Services, Housing and Disability Services, Sarah Henderson said the new prices include a
56 ABI submission 5 April 2019 at 4.11.
57 McKinsey & Company, Independent Pricing Review: National Disability Insurance Agency (Final Report, February 2018).
58 Ibid, p.5.
59 Exhibit HSU3 and Transcript at [1581] – [1646].
60 [2019] FWC 2756.
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minimum increase of almost $11 per hour for therapists and up to a 15.4 percent price increase
to the base limit for attendant care and community participation.
We are committed to the development of a vibrant disability services market that enables
NDIS participants to have genuine choice and control over the services and supports they
need,” Mr Fletcher said.
We have consulted widely with participants, providers and the sector to inform and implement
these changes.
These changes form part of the National Disability Insurance Agency’s (NDIA) annual price
review to update prices that reflect market trends, costs in wages and other influences. It also
responds to regular monitoring of markets and responding to emerging issues.
These processes have identified the need to increase prices for attendant care and community
participation and we are responding to that.
Substantial increases to the hourly rates for therapy also follow a comprehensive review of the
price control arrangements and other market settings for therapy services through December
2018 to March 2019.
These price increases are part of an overarching pricing strategy and commitment to review
and respond to pricing evidence as required, and will encourage the development of a
disability services market of appropriate size, quality and innovation,” Mr Fletcher said.’61
[74] As noted in Ai Group’s submission, the Media Release contains little detail about the
specific price increases to be implemented and only refers to attendant care, community
participation and therapists. Ai Group also points to some inconsistencies between Mr
Farthing’s evidence and the Online NDIA material. At paragraph 5 of its submission, Ai
Group says:
‘Further, we continue to hold the concerns previously expressed about the funding currently
afforded to providers in the industry, the implications that the insufficiency of that funding has
had and continues to have on providers (and in turn, on their clients) and the extent to which
those implications would be exacerbated if the various unions’ claims were granted. The
material here presented by the HSU does not cause us to demur from that position.’
[75] The difficulty with the position put by the various employer parties as to the financial
operation of the NDIS is that it reflects their view prior to the recent substantial injection into
the pricing model. While Ai Group maintains its previously expressed concern, that
submission is little more than an assertion of ‘concerns’. No employer participant in the
NDIS gave evidence in the proceedings regarding the financial impact of the claims before us;
nor did any employer party seek to adduce any material modelling the financial impact of the
Union claims. We are left in the somewhat unsatisfactory position that:
the previous studies on the costs and profitability in the sector are dated and fail to
account for the changes introduced on 1 July 2019;
while the magnitude of the recent budgetary injection was substantial, little detail
has been provided on the implementation and impact of the changes; and
there appear to be some inconsistencies between Mr Farthing’s evidence and the
Online NDIA material.
61 HSU submission 18 April 2019.
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[76] We deal later with the extent to which the NDIS funding arrangements are relevant to
the determination of the claims before us.
5. The Claims
5.1 Overview
[77] UV and the HSU both seek the deletion of clause 25.8, which deals with 24 hour care,
and seek a consequential variation to clause 25.7, which deals with ‘sleepovers’.
[78] In addition, UV is pursuing two other claims:
the deletion of clauses 28.1(b)(iv)(A) and (B), the effect of which is to ensure that
casual employees who work overtime are paid the casual loading in addition to
overtime rates; and
a variation to clause 34.2, Payment for working on a public holiday.
[79] The HSU is pursuing three other claims:
a variation to clause 20.4, First aid allowance;
a variation to clause 26, Saturday and Sunday work, to ensure that casual employees
receive the casual loading in addition to the Saturday and Sunday rates prescribed
in that clause; and
the insertion of a new term, clause 34.2(c) to ensure that casual employees who
work on a public holiday receive the casual loading in addition to the public holiday
penalty in clause 34.2(a).
[80] The ASU is seeking to insert a new allowance for employees who use community
language skills during the course of their employment.
[81] In their submission of 18 February 2019,62 the ASU confirmed that they would not be
pressing their claim relating to the coverage clause of the SCHADS Award. During the course
of the proceedings UV advised it would not be pursuing its claim to vary clause 25.9,
Excursions, to provide that time off in lieu of overtime would be calculated at the overtime
rate.63
[82] A list of the witnesses called by the interested parties is set out at Attachment B.
[83] Each of the claims is opposed by the various employer interests.
5.2 The 24 hour care clause
[84] As we have mentioned, UV and the HSU seek to delete clause 25.8 which provides as
follows:
62 ASU submission, 18 February 2018.
63 Transcript 15 April 2019 at [146]-[148].
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25.8 24 hour care
This clause only applies to home care employees.
(a) A 24 hour care shift requires an employee to be available for duty in a client’s home
for a 24 hour period. During this period, the employee is required to provide the client with the
services specified in the care plan. The employee is required to provide a total of no more than
eight hours of care during this period.
(b) The employee will normally have the opportunity to sleep during a 24 hour care shift
and, where appropriate, a bed in a private room will be provided for the employee.
(c) The employee engaged will be paid eight hours work at 155% of their appropriate rate
for each 24 hour period.
[85] The Unions also seek a consequential amendment to clause 25.7(a) as follows:
25.7 Sleepovers
(a) A sleepover means when an employer requires an employee to sleep overnight at premises
where the client for whom the employee is responsible is located (including respite care) and
is not a 24 hour care shift pursuant to clause 25.8 or an excursion pursuant to clause 25.9.8.
[86] UV submits that clause 25.8 of the SCHADS Award requires an employee to work for
a 24-hour period whilst only being paid for a maximum of eight hours.64 It further submits
that the entire duration of a 24 hour care engagement is considered ‘work’ and employees
should be appropriately remunerated.65 UV contends that employees should rely on the
provisions of the Sleepover clause at 25.7 of the SCHADS Award. Clause 25.7 provides that
employees will receive an allowance and payment for time worked during a sleepover. UV
submits that this clause is far more appropriate than the 24 hour care clause, which provides
no payment for the sleepover portion of the shift.66
[87] UV submits that s.62(1) of the Act, which relates to an employee’s maximum working
hours and s.62(2) which provides that an employee may refuse to work additional hours if the
request is unreasonable, are relevant to the determination of its claim.
[88] Section 62(3) of the Act sets out some considerations to determine whether a request
or direction to work additional hours is reasonable. One consideration highlighted by UV is
‘whether the employee is entitled to receive overtime payments, penalty rates or other
compensation for, or a level of remuneration that reflects an expectation of, working
additional hours’.
[89] UV submits that the 24 hour care shift clause creates situations where employees are
effectively liable to work in excess of the notional hours attributed to their engagement.67 It
64 Ibid at [35]–[36.]; UV submission 4 February 2019 at [8], p3.
65 Ibid at [23]–[24].
66 UV submission, 4 February 2019 at [40].
67 UV submission 4 February 2019 at [20].
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further submits that when an employee is directed to undertake a 24 hour care shift there is
also a contingent request by the employer that the employee perform additional hours of work
in emergency situations or according to the care needs of clients for which they are not
remunerated. UV submits that these hours may be considered additional hours in terms of s.62
and that while s.62 does not deal with intra-day durations of work, the fact that the clause
allows unreasonable intra-day durations of work which are ‘in a practical sense non-
negotiable’ is a relevant merit consideration.68
[90] As to s.62(2), UV submit that where a 24 hour care shift falls late in the weekly roster
cycle, it is likely that an employee will be effectively compelled to work greater than 38 hours
and that clause 25.8 does not provide a means for employees to refuse to work the additional
hours. 69
[91] UV also contends that Division 2, Part 2-9 of the Act is also relevant, in particular
clause 25.8 may breach s.323 in that it permits an employer to require an employee to work
for a 24 hour period but does not require the employer to pay the employee in full for the
performance of the work. 70
[92] Finally, UV also submits that clause 25.8 does not meet the modern awards objective71
in that it is not consistent with s.134(1)(d) as the remuneration provided for the unsocial
nature of the work is too low72 and the clause does not promote ‘social inclusion though
increased workforce participation’ (s.134(1)(d)).73 UV further submits that the clause is
‘inflexible, inefficient and not conducive to productivity’, contrary to s.134(1)(d) of the
modern awards objective.74
[93] The HSU also seeks the deletion of the 24 hour care clause from the SCHADS
Award.75 It submits the clause is unclear and rarely used, and that extended periods of care
should be dealt with in accordance with other provisions in the SCHADS Award.76 The HSU
submit the clause does not meet the modern awards objective and provides for remuneration
at a discounted rate during a period where an employee is required to be available for work.
[94] The HSU submit the 24 hour care clause leaves employees open to exploitation as:
it does not compensate employees for the entire time they are required to be
available for the performance of duties. In accordance with the principle “they also
serve who only stand and wait”,77 where an employee is required by the employer,
they should be compensated for that as work;
68 UV submission, 15 February 2019 at [20].
69 Ibid at [22].
70 Ibid at [30].
71 Ibid at [31].
72 Ibid at [32].
73 Ibid at [34].
74 Ibid.
75 HSU Submission, 15 February 2019 at [5].
76 Ibid at [64] – [66].
77 Ibid at [65].
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it does not specify what would happen if an employee works more than 8 hours in a
24 hour period;
the sleepover clause provides that a sleepover span must be a continuous period of
eight hours, and that if an employee’s sleep is interrupted and they are required to
perform work, they are required to be paid overtime rates;
there is no provision for the employee to be provided a continuous number of hours
for sleep or what happens if the employee’s sleep is broken;
it provides that a bed in a private room will be provided ‘where appropriate’ but it is
not clear when it would not be appropriate for an employee working a 24 hour shift
to not be provided with a bed.
[95] In summary, the submissions advanced in support of the deletion of clause 25.8 are as
follows:
the clause is unclear, in that it provides no certainty regarding the hours of work of
an employee or the sleeping arrangements to be applied;
the clause is rarely used;
the entire engagement is ‘work’ and should be remunerated as such;
the clause does not adequately compensate employees, or provides for remuneration
at a “discounted rate”, for the time they are required to be available for work;
the clause may breach s.323 of the Act because it permits an employer to require an
employee to work for a 24 hour period but does not require the employer to pay the
employee in full for that work;
the clause creates situations where an employee is effectively liable to work in
excess of the notional hours attributed to the engagement, and the hours that such
engagements will ‘require’ the employee to work are not foreseeable; and
leaving employees for lengthy periods on duty dealing with complex interpersonal
matters is problematic.
[96] ABI, NDS and AFEI oppose the claims to delete clause 25.8 and the consequential
amendment to clause 25.7.
[97] In its submission in reply of 5 April 2019, ABI deals with the relevant award history
and refers to a number of pre-reform awards which contained 24 hour care provisions.78 It
submits that up until these proceedings, aside from a variation by ASU in 2012 to clarify that
the clause only applies to home care employees, the clause has operated without any
controversy and that the clause facilitates the provision of a valuable service to elderly
Australians who are in receipt of home care services. ABI submits the award should continue
to facilitate the delivery of such a service and that the deletion of the 24 hour care clause
would be a significant step which would have adverse implications for the relevant
community who receive care in their home.79
78 ABI submission 5 April 2019 at 6.5 – 6.17.
79 Ibid at 6.44.
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[98] In the course of its submissions, ABI observed that there may be a lack of clarity in
respect of some aspects of the operation of the current clause: the clause is silent as to what
happens when an employee is required to work more than 8 hours of work; the lack of
certainty about the hours of work of an employee; and that the clause is unclear regarding
aspects relating to sleeping.80 In particular, ABI acknowledges that the clause does not
specify what happens where an employee is required to perform more than 8 hours’ work
during a 24 hour care shift and notes that there is a degree of tension in the provision in that
an employee is required to be available for duty for a 24 hour period and yet an employee is
required to provide a total of no more than eight hours of care during the period. ABI submits
that although an employee is not required to perform any more than 8 hours’ work there may
be occasions where additional work (if an employee agrees to perform it) is required which
would be regulated by the overtime provisions.
[99] ABI also accepts that the current clause does not expressly provide that employees
will be provided with “a safe and clean space to sleep” but it is not aware the absence of any
wording has raised an issue.81 However, if the Commission found the existing term
ambiguous and that clarification of its operation would be beneficial, ABI would not be
opposed to the clause being varied as long as the substance of the clause is not altered and
consistent with s.134(1)(g) of the Act. During the course of oral argument Mr Scott, on behalf
of ABI, indicated that his clients would not oppose the following amendments to the 24 hour
care clause:
the language in clause 25.7(c) being inserted into the 24 hour care clause;
to the extent that an employee is required to perform more than 8 hours work then
that work being treated as overtime and is paid in accordance with clause 28; and
with an amendment to the effect that a broken shift can only be worked by
agreement with the employee.82.
[100] The NDS opposes the deletion of the 24 hour care provision and submits that the
ambiguity in the clause may be addressed by an amendment so as to provide that the 55%
loading is payment for any additional work required of up to 2 hours, with overtime payable
for all work performed beyond that amount.83 NDS contends that such a variation would be
preferable to deleting a clause that facilitates the provision of a type of support that is of value
to aged and disabled people in certain circumstances.
Consideration
[101] We reject the HSU’s contention that the 24 hour care clause is ‘rarely used’.84 As
mentioned earlier, the Survey Results show that around one in ten enterprises (11.2 percent)
that responded to the Survey used 24 hour shifts between 1 March 2018 and 1 March 2019
and that of those providers that use the 24 hour care clause, on average, rostered a home care
employee to work a 24 hour shift 304 times per year. We find that 24 hour care shifts are used
80 Ibid at 6.22 – 6.30.
81 Ibid at 6.28.
82 Transcript at [1997] – [2000].
83 NDS submission 5 April 2019 at [24].
84 HSU Submissions of 15 February 2019 at paragraph 64.
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in the industry and, further, while only a minority of employers used the 24 hour care clause,
those who do utilise the clause do so regularly.
[102] Given the history and the current utilisation of the 24 hour care clause, we think it is
appropriate to adopt a cautious approach to the claim that the clause should be deleted.
[103] We acknowledge there are deficiencies in the 24 hour care clause. As submitted by the
HSU (and effectively conceded by ABI and the NDS) the clause lacks clarity and fails to
address some important matters regarding the practical operation of the clause. In addition to
the matters mentioned at [97] to [99] above we would add that the mechanism whereby an
employee may refuse to work more than 8 hours when on a 24 hour care shift is unclear.
[104] Despite these deficiencies it is our provisional view that the clause be retained. That
said, the existing clause does not provide a fair and relevant minimum safety net; it requires
amendment.
[105] We propose the following process to address the issues raised:
1. The interested parties are to confer with respect to the amendments to be made
to the clause to ensure that it achieves the modern awards objectives.
2. The discussions between the parties will be facilitated by Commissioner Lee
and a conference will be convened shortly for that purpose.
3. Arising out of the discussions and conferences a Joint Report will be prepared
setting out the extent of agreement and any remaining matters in dispute (Note:
in the event that the parties are unable to reach a substantial measure of
agreement we will revisit our provisional view regarding the proposed deletion
of the term).
4. Interested parties will be given an opportunity to make submissions in relation
to the Joint Report and in support of their preferred position.
5. We will list the matter for further oral hearing, if we decide that is the
appropriate course.
5.3 The claims relating to casual employees
(i) Overtime payments
[106] UV seeks to amend clause 28 to ensure that casual employees who work overtime are
paid the casual loading in addition to overtime rates.
[107] The SCHADS Award currently provides that casual employees are paid overtime rates
for all time worked in excess of 38 hours per week, 76 hours per fortnight or 10 hours per
day. However, clause 28.1(b)(iv) provides that the overtime rates payable to casuals
‘… will be in substitution for and not cumulative upon;
…
(b) the casual loading prescribed in clause 10.4(b).’
[108] UV seeks the following variation to clause 28.1(b)(iv):
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28.1 Overtime rates
…
(b) Part-time employees and casual employees
(i) All time worked by part-time or casual employees in excess of 38 hours per week or 76
hours per fortnight will be paid for at the rate of time and a half for the first two hours and
double time thereafter, except that on Sundays such overtime will be paid for at the rate of
double time and on public holidays at the rate of double time and a half.
(ii) All time worked by part-time or casual employees which exceeds 10 hours per day, will be
paid at the rate of time and a half for the first two hours and double time thereafter, except on
Sundays when overtime will be paid for at the rate of double time, and on public holidays at
the rate of double time and a half.
(iii) Time worked up to the hours prescribed in clause 28.1(b)(ii) will, subject to clause
28.1(b)(i), not be regarded as overtime and will be paid for at the ordinary rate of pay
(including the casual loading in the case of casual employees).
(iv) Overtime rates payable under this clause will be in substitution for and not cumulative
upon the shift premiums prescribed in clause 29—Shiftwork and are not applicable to ordinary
hours worked on a Saturday or a Sunday:
(A) the shift premiums prescribed in clause 29—Shiftwork; and
(B) the casual loading prescribed in clause 10.4(b), and are not applicable to ordinary
hours worked on a Saturday or a Sunday.
[109] The current arrangements in the SCHADS Award relating to the payment for overtime
for casuals were the result of an Appeal Decision85 from a decision of VP Watson86 during the
Transitional Review. In the Appeal Decision the Full Bench found errors in the Vice
President’s determination of a claim by the ASU regarding overtime for casuals and
proceeded to re-determine that issue. The relevant extracts from the Appeal Decision are
follows:
‘[37] We consider that the case for an award provision for overtime for casual employees is a
strong one. The analyses advanced by the parties concerning the position pertaining in the pre-
existing awards and instruments which were replaced by the SCHCDS Award firmly establish
that, predominantly, casual employees were entitled to overtime penalty rates for any overtime
worked, regardless of when it was worked. Applying the approach generally taken by the
award modernisation Full Bench, whereby the most common provisions to be found in the
pre-existing awards and instruments were usually adopted unless there was some good reason
to the contrary, this should have led to a result whereby the SCHCDS Award contained an
overtime penalty rates regime for casual employees as well as full-time and part-time
employees.
[38] This did not occur. The Full Bench award modernisation decision which led to the
making of the SCHCDS Award did not give any consideration to the pre-existing position
85 [2014] FWCFB 379.
86 [2013] FWC 4141.
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with respect to overtime penalty rates for casual employees, did not state any rationale for a
departure from that pre-existing position, and indeed did not deal with the issue at all.
Therefore we can only conclude that the absence of overtime provisions applicable to casual
employees in the SCHCDS Award was an oversight.
…
[41] The result of the omission of overtime penalty rates for casual employees, we find, is
that the SCHCDS Award does not achieve the modern awards objective in s.134 because it
does not provide a fair and relevant minimum safety net of terms and conditions for casual
employees, and that the SCHCDS Award suffers from an anomaly arising from the award
modernisation process conducted under Part XA of the Workplace Relations Act 1996 and is
thereby not operating effectively. It will be necessary therefore to remedy this by varying the
SCHCDS Award to provide for overtime penalty rates for casual employees whenever
overtime is worked.
[42] There remains the question of what form that variation should take. The critical question
here is whether any overtime penalty rates for casual employees should be in addition to or in
substitution for the casual loading. This is a difficult question to resolve. The position which
applied in the pre-existing awards and instruments in this respect was somewhat mixed. No
clearly predominant position emerges. The question of whether there is a proper basis for the
payment of the casual loading in addition to overtime penalty rates was not argued at the level
of general principle in this case, and in any event the confined interests of the parties which
appeared and made submissions in this appeal means that it is not an appropriate vehicle to
decide this issue on a general basis.
…
[44] In all the circumstances we think a conservative approach is called for. We have decided
to vary the SCHCDS Award to provide for a regime for overtime penalty rates which operates
in substitution for the payment of the casual loading. The variation we will make will
accordingly largely reflect the alternative award variation advanced by the respondents. The
provision of overtime penalty rates for casual employees, even without the addition of the
casual loading, will be a significant benefit for those casuals who work overtime, and will
equalise the overtime cost of full-time, part-time and casual employees. The variation is, we
consider, appropriate to remedy the issue of casual employees not being entitled to overtime
rates which this review of the SCHCDS Award has identified, having regard to the modern
award objective in s.134.
[45] We emphasise that nothing in this decision is intended to foreclose further consideration
in the four yearly review process to be conducted under s.156 of the Fair Work Act as to
whether, under the SCHCDS Award, the casual loading should be payable in addition to
weekend and overtime penalty rates. The four yearly review process, which will involve the
review of all modern awards, may result in general and authoritative consideration of this
issue at the level of industrial principle. If so, that would provide a sound basis to revisit the
issue in relation to the SCHCDS Award.’
[110] In support of its claim UV relies on the Penalty Rates Decision and to the references to
the views of the Productivity Commission concerning the interaction of penalty rates and the
casual loading:
‘In some awards, penalty rates for casual employees fail to take into account the casual
loading, which distorts the relative wage cost of casuals over permanent employees on
weekends (and particularly Sundays). The wage regulator should reassess casual penalty rates
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on weekends, with the goal of delivering full cost neutrality between permanent and casual
rates on weekends, unless clearly adverse outcomes can be demonstrated. This would imply
that casual penalty rates on weekends would be the sum of the casual loading and the penalty
rates applying to permanent employees.’87
[111] UV relied on what the Productivity Commission described a ‘default approach’
whereby:
‘… the casual loading is always set as a percentage of the ordinary/base wage (and not the
ordinary wage plus the penalty rate). The rate of pay for a casual employee is therefore always
25 percentage points above the rate of pay for non-casual employees.’88
[112] UV submits that in the Penalty Rates Decision the Commission expressed a preference
for the default approach generally whenever it reduced or altered rates in relation to the
modern awards subject to the review89 and submits that the default approach is consistent with
s.134(1)(g) of the modern award objective, which requires that modern awards are ‘simple,
easy to understand, stable and [provide a] sustainable system for Australia that avoids
unnecessary overlap of modern awards’.90 Further, UV relies on s.134(1)(da)(iii) which deals
with the need to provide additional remuneration for employees working unsocial hours and
submits that this provision lends support for the casual loading being an additional amount
paid when any penalty or loading applies to work at an unsocial time. It contends that
subsuming the casual loading into other penalties and loadings also means that a casual
employee is not compensated for the disutility associated with working unsociable hours. 91
(ii) Saturday and Sunday work; Public Holidays
[113] The HSU seeks to vary clause 26 – Saturday and Sunday work and clause 34.2 –
Payment for working on a public holiday, to ensure that casual employees receive the casual
loading in addition to the rates for Saturday and Sunday work, and for working on public
holidays.
[114] As to clause 26, the HSU seeks the following variation:
26. Saturday and Sunday work
Employees whose ordinary working hours include work on a Saturday and/or Sunday will be
paid for ordinary hours worked between midnight on Friday and midnight on Saturday at the
rate of time and a half, and for ordinary hours worked between midnight on Saturday and
midnight on Sunday at the rate of double time. These extra rates will be in substitution for and
not cumulative upon the shift premiums prescribed in clause 29—Shiftwork and the casual
loading prescribed in clause 10.4(b), and are not applicable to overtime hours worked on a
Saturday or a Sunday.
87 Ibid at [333]
88 Ibid at [335]
89 Ibid
90 Ibid at [333]-[338]
91 UV submission, 15 February 2019 at para [161]
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26.1 (a) Casual employees will receive their casual loading in addition to the Saturday and
Sunday rates at clause 26.
(b) The rates are:
(i) in substitution for and not cumulative upon the shift premiums prescribed in clause
29 – Shiftwork; and
(ii) not applicable to overtime worked on a Saturday or Sunday.
[115] In relation to public holiday payments the HSU seeks:
34.2 Payment for working on a public holiday
(a) An employee required to work on a public holiday will be paid double time and a half of
their ordinary rate of pay for all time worked.
(b) Payments under this clause are instead of any additional rate for shift or weekend work
which would otherwise be payable had the shift not been a public holiday.
(c) A casual employee will be paid the casual loading under clause 1.4(b) in addition to the
public holiday penalty at clause 34.2(a).
[116] In support of its proposed variations the HSU submits that payment of the casual
loading in addition to any overtime, weekend and public holiday penalty is consistent with the
function of the casual loading, being to compensate employees for the paid leave entitlements
available to permanent employees, and with the “default approach” discussed by the Full
Bench in the Penalty Rates Decision.92 It submits this approach is simple and easy to
understand (see s.134(1)(g) of the Act).
[117] In particular, the HSU relies on the consideration in the Penalty Rates Decision of the
purposes of penalty rates and casual loadings in the context of the Hospitality Industry
(General) Award 201093 (Hospitality Award) and its finding that the casual loading should be
added to the Sunday penalty rate because clause 13.1 of the Award makes clear that “the
casual loading is not intended to compensate employees for the disutility of working on
Sunday.”94 The HSU submit that clause 10.4(b) of the SCHADS Award is “relevantly
identical” and that it is clear the casual loading is paid in substitution for the leave
entitlements otherwise available to permanent employees, not to compensate for any other
aspect of the work or its performance.
[118] The Employer parties oppose the UV and HSU claims relating to casual employees.
[119] Ai Group submits that a proper foundation for the Unions’ claims has not been made
out and they should be dismissed. In addition to its submissions regarding s.138 and the s.134
considerations (at [188] – [189] of Ai Group submissions of 8 April 2019) Ai Group advances
three broad lines of argument in support of its position:
92 [2017] FWCFB 1001 at [338].
93 Ibid at [889] – [891].
94 Ibid at [896].
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the Commission should have regard to the NDIS funding arrangements;
the Unions’ claims simply seek to relitigate matters ventilated in the Transitional
Review; and
the adoption of the PC’s ‘default approach’ in the Penalty Rates Decision was in the
context of a small number of awards and did not constitute a general and
authoritative consideration of the issue at the level of industrial principle.
[120] We return to each of these arguments shortly.
[121] ABI, the NDS, Business SA and AFEI also advanced submissions opposing the
Union’s casuals claims and rely on:
the relevant award history (and in particular the Transitional Review decisions
referred to above);
the absence of evidence in support of the claims; and
the impact upon businesses covered by the SCHADS Award.
[122] As to the last point, the NDS submit that granting the claim would:
‘significantly increase the wage cost for the provision of a wide range of social services,
including disability support, for employers, who are largely dependent on government funding
or, in the case of the NDIS, a fixed price over which they have no control. The result is likely
to be a reduction in services to vulnerable members of the community’.95
[123] As can be seen there is a significant degree of overlap between the arguments
advanced by Ai Group and those put by the other Employers. As mentioned, Ai Group
advances three broad lines of argument and we now turn to deal with those arguments.
[124] First, Ai Group submits that when determining claims to enhance terms and conditions
in the SCHADS Award the Commission should in these proceedings
‘have regard to the funding arrangements applying to employers covered by the Award. This
is because the funding arrangements under the NDIS currently impose limitations on the price
that can be charged by providers to their clients for their services. This places an inherent
limitation on the capacity of employers to recover any additional costs flowing from variations
to the Award. Additionally, it appears that the terms of approved participant plans place
further limitations on the extent to which employers are able to claim additional amounts (for
example, because plans limit the purpose or “support” for which certain funding can be
used).’96
[125] Ai Group submits that ‘the inherent connection between the Award and government
funding has long been accepted by the Commission’.97
95 NDS Submissions 5 April 2019 at [46].
96 Ai Group submission in reply 8 April 2019, at [159].
97 Ai Group submission 8 April 2019 at [153].
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[126] Two authorities are relied on in support of this proposition.
[127] The first is the Equal Remuneration Case98 in which the Commission said:
‘[272] We accept that there is widespread reliance on government funding and that because of
the pervasive influence of funding models any significant increase in remuneration which is
not met by increased funding would cause serious difficulties for employers, with potential
negative effects on employment and service provision.’
[128] We note that in that matter the Commission ultimately made an Equal Remuneration
Order broadly reflecting the outcome agreed by the applicants and the Commonwealth,
supported by a commitment from the Australian Government to meeting its share of the
financial burden flowing from the decision. But the Commission’s order was not contingent
on the increase in employment costs being fully funded, as is apparent from the Full Bench’s
second decision in that matter:
‘The Commonwealth has given a commitment to fund its share of the increased costs arising
from the proposals. While some state governments are opposed, no government has indicated
it will be unable to fund its share. On the other hand there are significant risks which need to
be considered. For example, there will be an impact on employers in relation to programmes
and activities that are not government funded. As a number of the opponents of the proposals
pointed out, any order we make has the potential to affect employment levels and service
provision where costs cannot be recovered. We are also concerned about the effect on the
finances of a number of states. We have decided that in the circumstances these risks can be
satisfactorily addressed by an extension to the length of the implementation period.’99
[129] Ai Group contends that the current funding levels are insufficient to cover the cost
associated with providing disability services and that the recently announced increase in
NDIS funding from 1 July 2019 will not be sufficient to address employers’ existing
difficulties with operating under the scheme. In this context, Ai Group submits that the
material demonstrates that:
‘• a substantial number of employers are unable to make a profit under the current funding
arrangements;
the limited funding is having adverse consequences for the extent and quality of services
provided by employers. This in turn has consequences for employment opportunities; and
the limited funding is having adverse consequences for the extent to which employers are
able to provide career progression and training to their employees. This again has
consequences for service delivery.’100
[130] It is submitted that the grant of the Unions’ claims will serve only to exacerbate the
existing concerns voiced by employers about their viability under the scheme and their ability
to continue to provide services to persons with a disability. If the Award were varied as
98 [2011] FWAFB 2700.
99 Equal Remuneration Order [2012] FWAFB 1000 at [65].
100 Ibid, at [160].
[2019] FWCFB 6067
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sought by the Unions, employers will be faced with substantial additional costs for which
there is no funding and no scope to recover from those who need and access their services.101
[131] Ai Group’s submission in respect of this issue is encapsulated at paragraph 163 of its
written submission of 8 April 2019:
‘The operation of the NDIS and the constraints it places on employers covered by the Award
should, in our respectful submission, form the cornerstone of the Commission’s consideration
of the impact of the Unions claims on employers. Such a consideration necessarily leads to the
inevitable conclusion that employers cannot and should not be saddled with the additional
employee entitlements sought by the Unions in these proceedings.’102 (emphasis added)
[132] In our view the proposition advanced by Ai Group overstates the extent to which the
NDIS funding arrangements are relevant to the determination of the claims before us.
Further, as we note at [75] above, the position put about the impact of the recent budgetary
injection amounts to little more than an assertion, unsupported by direct evidence or
modelling.
[133] As mentioned earlier, it is the modern awards objective which is central to our
consideration of the claims. 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 s.134 considerations. The
importance of the modern awards objective is emphasised by the terms of s.138.
[134] The proposition advanced by Ai Group seeks, in essence, to elevate one set of
considerations – the impact on business and employment costs – above all others. So much is
clear from the submission that the constraints placed on employers by the operation of the
NDIS should ‘form the cornerstone’ of our consideration of the proposed variations leading to
‘the inevitable conclusion’ that the claims be dismissed.
[135] We reject the proposition advanced. The obligation to take the s.134 considerations
into account means that each of these matters, insofar as they are relevant, must be treated as
a matter of significance in the decision making process. And, as we have mentioned, no
particular primacy is attached to any of the s.134 considerations.
[136] We accept that the impact of granting the claims on business and on employment costs
is a relevant consideration and weighs against making the variations proposed by the Unions.
But we reject the notion that the constraints placed on employers by the NDIS funding
arrangements should be given determinative weight.
[137] In the context of the provision of social services where employers are largely
dependent on government funding, or, in the case of the NDIS, a fixed price, we are cognisant
of the fact that significant unfunded employment cost increases may result in a reduction in
services to vulnerable members of the community – a point made by the NDS. But such
outcomes are a consequence of current funding arrangements, which are a matter for
Government. Further, as we have mentioned earlier (at [75] above) the evidence as to the
101 Ibid, at [162].
102 Ibid, at [163].
[2019] FWCFB 6067
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impact of the recent budgetary increase to the NDIS is somewhat unsatisfactory. Nor was
there much consideration given to the extent to which the impact of an increase in casual
overtime work and work on weekends and public holidays may be ameliorated by the
utilisation of part time and full time employees.
[138] The Commission’s statutory function is to ensure that modern awards, together with
the NES, provide a fair and relevant minimum safety net. It is not the Commission’s function
to make any determination as to the adequacy (or otherwise) of the funding models operating
in the sectors covered by the SCHADS Award. The level of funding provided and any
consequent impact on service delivery is a product of the political process; not the arbitral
task upon which we are engaged.
[139] We recognise that it may take time for a funding arrangement to adapt to a change in
circumstances, such as an increase in employment costs occasioned by a variation to the
award safety net. Such matters can be addressed by appropriate transitional arrangements.
[140] We would also observe that the approach advocated by Ai Group would result in
employees covered by the SCHADS Award effectively subsidising the level of services
delivered by the NDIS (and other government funded social services) through lower
minimum terms and conditions of employment than warranted by a merits based assessment
of the claims before us taking account of all of the relevant s.134 considerations. Such a
‘subsidy’ would operate in circumstances where a significant number of these employees are
low paid.
[141] If, as the employer parties suggest, the NDIS pricing arrangements are underpinned by
flawed assumptions and do not reflect the practicalities of providing services to participants or
adequately compensate providers for their labour costs, this is a matter for Government to
address, as the funder of the services. Such factors do not provide justification for a distortion
of the Commission’s statutory functions in setting the award safety net.
[142] The Commission’s statutory function should be applied consistently to all modern
award employees, while recognising that the particular circumstances that pertain to particular
awards may warrant different outcomes. The fact that a sector receives government funding
is not a sound basis for differential treatment. Further, given the gendered nature of
employment in many government funded sectors such differential treatment may have
significant adverse gender pay equity consequences.
[143] The impact upon business and employment costs of any proposed variation is one of a
number of considerations to be taken into account. In the context of the matters before us we
are not persuaded that such considerations should be given determinative weight.
[144] In its second line of argument, Ai Group contends that the issue of weekend penalty
rates and overtime payments for casuals was considered by the Commission in the
Transitional Review and that:
‘The unions’ claims simply seek to re-litigate the matters ventilated in the two year review.
They have not pointed to any justification for departing from the Full Bench’s decision
[2019] FWCFB 6067
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regarding overtime or the Vice President’s decision regarding weekend penalty rates. They
have not presented any evidence or material that might justify a different approach.’103
[145] Similar arguments are advanced by ABI and other employer organisations. We have
earlier set out some of the extracts from the decision relied upon (see [109] above).
[146] Ai Group submits that the Transitional Review Appeal Bench that heard and
determined the ASU’s claim expressly considered whether the casual loading should be
payable to casual employees in addition to overtime rates and observed that:
(i) the position which applied in the pre-existing awards and instruments in this
respect was somewhat mixed. No clearly predominant position emerges from a
review of those instruments;104
(ii) the variations made in the two year review to expand the entitlement to overtime
rates presented a significant benefit to casual employees;105 and
(iii) a conservative approach was appropriate in all the circumstances.106
[147] Ai Group advances the following submission in respect of the Appeal Decision:
‘These aspects of the Full Bench’s reasoning are not directly referable to what has on many
occasions been described as the limited scope of the two year review. That is, the Full Bench’s
reasoning does not appear to be encumbered or confined by the narrower scope of the review.
Accordingly, in our submission, although the decision was made in a different legislative
context, in the circumstances that is not a cogent reason for not following the decision.’107
[148] As noted earlier (see [18]), while it is appropriate to take account of previous decisions
relevant to a contested issue arising in the Review, the context in which those decisions were
made may provide cogent reasons for not following a previous Full Bench decision. Three
important contextual considerations are relevant in determining the weight to be afforded to
the decisions relied upon by Ai Group:
(i) The decisions relied on were made in the context of the Transitional Review
which was more limited in scope than the Review. The proposition advanced
by Ai Group – that the Full Bench’s reasoning does not appear to be
encumbered or confined by the narrower scope of the Transitional Review – is
unpersuasive. The Full Bench’s observations must necessarily be confined
within the parameters of the jurisdiction it was exercising.
(ii) It is apparent from the decisions relied upon that neither the Member at first
instance nor the Appeal Bench gave any proper consideration to the principle
103 Ibid, at [185].
104 Re Australian Municipal, Administrative and Clerical Services Union [2014] FWCFB 379 at [42].
105 Ibid, at [44].
106 Ibid.
107 Ai Group submission in reply 8 April 2019, at [182].
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-080419.pdf
[2019] FWCFB 6067
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of neutrality (which informed the Productivity Commission’s default approach
adopted in the Penalty Rates Decision and to which we shall return shortly).
(iii) It is also significant that the relevant legislation has changed since the
decisions relied upon, in that s 134(1)(da) has subsequently been inserted into
the Act. We will return to the terms of s 134(1)(da) shortly.
[149] Having regard to these contextual considerations we do not propose to give significant
weight to the Transitional Review decisions relied upon by Ai Group (and the other employer
bodies).
[150] The third line of argument advanced by Ai Group is directed at the Unions’ reliance
on the Penalty Rates Decision, specifically, the Commission’s decision to require the payment
of the casual loading in addition to weekend penalty rates in certain awards. Ai Group submit
the following in response:
(a) Whilst the term ‘default approach’ is referenced by the unions and was referenced by the
Commission in the Penalty Rates Decision, the proposition that the casual loading be paid in
addition to weekend and overtime penalty rates is not in fact the default approach adopted in
the awards system. The term (i.e. ‘default approach’) is one that was simply coined by the
PC for the purposes of its report. Quite appropriately, in our submission, a consistent
approach does not in fact appear across the modern awards system.
(b) The issue of whether casual employees are entitled to the casual loading in addition to
weekend penalty rates or overtime is one that must be considered on an award-by-award
basis. There may be a number of reasons why, in the instance of a particular award, the
‘default approach’ is not appropriate. Ultimately the matter is one that must be considered by
the Commission by reference to the legislative constraints imposed by ss.134(1) and 138.
This will necessarily involve a range of considerations including the capacity of employers
to absorb the relevant additional employment costs. The history of the award entitlements
may also be relevant.
(c) The adoption by the Commission of the PC’s ‘default approach’ in the context of a small
number of awards where the Commission decided to reduce Sunday penalty rates does not
constitute “general and authoritative consideration of [the] issue at the level of industrial
principle”, as contemplated by the Full Bench that heard the ASU’s appeal. Accordingly, the
basis for revisiting the issue, as contemplated by that Full Bench, does not arise.
[151] Contrary to AI Group submission, the Productivity Commission’s ‘default approach’
has been adopted as a matter of general industrial principle.
[152] The relevant aspects of the PC Final Report and the Penalty Rates Decision are set out
in our recent decision in relation to the substantive claims regarding the Aged Care Award
2010108 (the 2019 Aged Care Decision). We adopt that analysis and, in particular, we endorse
the conclusion at [137],:
‘In our view the principle of neutrality of treatment, which underpins the Productivity
Commission’s ‘default approach’ and informed the Metals Casuals Decision, is a sound
108 [2019] FWCFB 5078 st [119] – [137].
[2019] FWCFB 6067
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industrial principle and, absent some compelling, countervailing consideration, should
generally be applied.’
[153] The application of such a principle to the present matter weighs in favour of the UV
claim regarding casual employee overtime rates and the HSU claims regarding the payments
to casuals for weekend and public holiday work. A countervailing consideration would be if
the 25 percent casual loading in the SCHADS Award contains some compensation for
overtime, weekend work or working on public holidays. In our view it does not. It is clear
from clause 10.4(b) of the SCHADS Award that the 25 percent casual loading is ‘paid instead
of the paid leave entitlements accrued by full time employees’ and there is no suggestion in
the award that the casual loading contains any element of compensation for working overtime;
or weekend work; or for working on public holidays.
[154] In the context of the SCHADS Award, the casual loading and the penalty rates
associated with overtime, weekend and public holiday work are separate and distinct forms of
compensation. Penalty rates compensate for the disutility associated with the time at which
work is performed (or the working of additional hours). The casual loading is paid to
compensate casual employees for the nature of their employment and the fact that they do not
receive the range of entitlements provided to full-time and part-time employees, such as
annual leave, personal carer’s leave, notice of termination and redundancy benefits.
Importantly, the casual loading is not intended to compensate employees for working
overtime or for weekend work and public holiday work.
[155] We also note that the application of overtime rates to casuals was the subject of recent
detailed consideration by a Full Bench in the Casual and Part time employment common
issues.109 In its decision of 5 July 2017 that Full Bench granted UV’s application to vary the
Registered and Licensed Clubs Award 2010 (Clubs Award), Restaurant Industry Award 2010
(Restaurant Award) and the Hospitality Award (collectively, the Hospitality Awards) to
establish that casual employees be paid overtime penalty rates in circumstances where the
employees have worked in excess of 38 hours per week or 10 hours per day.
[156] In deciding to vary the Hospitality Awards the Full Bench made the following
observations:
In establishing the modern Hospitality Award, the Restaurant Award and the Clubs
Award as part of the award modernisation process, the AIRC Full Bench does not
appear to have given explicit consideration to the justification for the exclusion of
casual employees from the benefit of overtime penalty rates provisions. The
provisions of the modern Hospitality Award were primarily derived from the pre-
reform federal Hospitality Industry - Accommodation, Hotels, Resorts and Gaming -
Award 1998, which excluded casual employees from overtime penalty rates.
Because no party contended that there should be a change to that position, the issue
was not given any consideration.110
The lack of any contest about and consideration of the casuals overtime issue in the
award modernisation, and the detailed evidentiary case now presented, provides a
109 [2017] FWCFB 3541.
110 Ibid, at [539].
[2019] FWCFB 6067
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cogent basis to now review the issue. It is also significant that the legislative context
has changed, in that paragraph (da) was added to the modern awards objective in
s.134(1) after the award modernisation process was completed.111
[157] At [548] – [549] of its decision the Full Bench sets out its conclusions:
‘[548] We are satisfied, having regard to the matters we are required to take into account
under s.134(1), that a fair and relevant minimum safety net for casual employees covered by
the 3 awards in question requires that casual employees receive the benefit of overtime penalty
rates. On the basis of the factual conclusion we have set out, it is apparent that casual
employees who work long hours in the course of a day or a week are subject to significant
disabilities. Those disabilities are essentially the same as those applying to permanent
employees who work lengthy hours and receive overtime penalty rates for doing so. We see no
good reason for the different treatment of casual employees, nor was any convincing rationale
for this advanced by any interested employer party. These are matters bearing particularly
upon the consideration in s.134(1)(da)(i), which we have accordingly assigned particular
weight in reaching our conclusion.
…
[549] Overtime penalty rates serve the dual purpose of compensating employees for
disabilities of that nature and establishing a disincentive for employers to require particular
employees to work long hours. Employers in the industry sectors in question may be able
avoid the cost of overtime penalty rates by adopting rostering systems and practices which
ensure that no single employee is commonly required to work excessive hours, and in that
sense the introduction of penalty rates need not cause significant additional cost burdens for
employers. That is relevant to the consideration in s.134(1)(f), which we have taken into
account as not being adverse to the proposition that a fair and relevant safety net should
provide for casual overtime penalty rates.’112
[158] It is apparent that some casual employees covered by the SCHADS Award are
working overtime hours. As mentioned earlier, the Survey Results show that in the 4 week
period from 4 to 31 March 2019, around three-quarters (75.4 per cent) of enterprises that
responded to the survey employed casual employees that were covered by the SCHADS
award. Of the enterprises that employed casual employees in that 4 week period, one quarter
had casual employees that worked in excess of 38 hours per week or 76 hours per fortnight.
Around three-quarters of enterprises (76.4 per cent) responded that casual employees worked
on a Saturday during this period, and around seven in ten enterprises (69.9 per cent)
responded that casual employees worked on a Sunday.
[159] We now turn to deal with the s.134 considerations.
[160] Section 134(1)(a) requires that we take into account ‘relative living standards and the
needs of the low paid’. 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).113 As
111 Ibid, at [545].
112 Ibid, [548] - [549].
113 [2017] FWCFB 1001 at [166].
[2019] FWCFB 6067
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mentioned earlier a significant proportion of employees covered by the SCHADS Award may
be regarded as ‘low paid’ within the meaning of s 134(1)(a).
[161] The ‘needs of the low paid’ is a consideration which weighs in favour of the variation
proposed by the Unions.
[162] Section 134(1)(b) requires that we take into account ‘the need to encourage collective
bargaining’. An increase in the payments for casuals working overtime and on weekends and
public holidays may increase the incentive for employers to bargain, but may also create a
disincentive for employees to bargain. It is also likely that employee and employer decision-
making about whether or not to bargain is influenced by a complex mix of factors, not just the
level of penalty rates in the relevant modern award. Section 134(1)(b) speaks of ‘the need to
encourage collective bargaining’. We are not persuaded that an increase in the payments for
casuals working overtime and on weekend and public holidays would ‘encourage collective
bargaining’, it follows that this consideration does not provide any support for a change to
those rates.
[163] Section 134(1)(c) requires that we take into account ‘the need to promote social
inclusion through increased workforce participation’. Obtaining employment is the focus of
s.134(1)(c). On the limited material before us, the impact of the variations proposed by the
Unions on total employment is not likely to be significant. We regard this consideration as
neutral.
[164] It is convenient to deal with the considerations ss.134(1)(d) and (f) together.
[165] Section 134(1)(f) is not confined to a consideration of the impact of the exercise of
modern award powers on ‘productivity, employment costs and the regulatory burden’. It is
concerned with the impact of the exercise of those powers ‘on business’.
[166] It is self-evident that if the rates payable to casuals for working overtime and for
weekend and public holiday work were increased then employment costs would increase. This
consideration tells against an increase in casual rates. However, there may be scope to
ameliorate the cost impact of the claims by the substitution of casual labour for part time and
full time employees.
[167] We accept that the variations proposed will increase employment costs and to the
extent that full time or part-time permanent employees are substituted for casuals, the changes
may reduce flexibility.
[168] Section 134(1)(da) requires that we take into account the ‘need to provide additional
remuneration’ for, relevantly:
‘(i) employees working overtime; or …
(iii) employees working on weekends or public holidays; …’
[169] The casual loading in the SCHADS Award does not adequately compensate casual
employees for overtime work or for working on weekends and public holidays. Further,
permanent and casual employees are likely to experience similar levels of disutility associated
with working overtime and on weekends and public holidays. This supports the proposition
[2019] FWCFB 6067
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that the penalty rates for working at those times should be the same for permanent and casual
employees and is a factor which weighs in favour of the variations proposed by UV and the
HSU.
[170] The considerations in s.134(1)(e) and (h) are not relevant in the present context. No
party contended to the contrary. Further, we regard s.134(1)(g) as a neutral consideration.
[171] The central issue in these proceedings is whether the existing penalty rates for casual
employees for overtime work and for work on weekends and public holidays provide a ‘fair
and relevant minimum safety net’.
[172] In substance, the submission put by the Unions is that the existing rates for casuals
working overtime and for work on Saturdays, Sundays and public holidays are not fair and
proportionate to the disutility experienced by casual employees for performing such work. We
agree.
[173] The modern awards objective is to ‘ensure that modern awards, together with the NES,
provide a fair and relevant minimum safety net of terms and conditions’, taking into account
the particular considerations identified in sections 134(1)(a)–(h). We have taken into account
those considerations, insofar as they are relevant to the matter before us, and have decided to
vary the SCHADS Award in the manner proposed by the Unions. We deal with the
transitional arrangements associated with these variations later in our decision.
5.4 Community language skills allowance
[174] The ASU seeks to insert a new clause 20.10 to provide for a community language
allowance to remunerate employees when they use a language other than English in the
course of their duties. The new clause is set out below:
20.10 Community Language and Signing Work
20.10.1 Employees using a community language skill as an adjunct to their normal
duties to provide services to speakers of a language other than English, or to
provide signing services to those with hearing difficulties, shall be paid an
allowance in addition to their weekly rate of pay.
20.10.2 A base level allowance shall be paid to staff members whose language skills
are required to meet occasional demands for one-to-one language assistance.
Occasional demand means that there is no regular pattern of demand that
necessitates the use of the staff members language skills. The base level rate
shall be paid as a weekly all purposes allowance of $45.00.
20.10.3 The higher level allowance is paid to staff members who use their language
skills for one-to-one language assistance on a regular basis according to when
the skills are used. The higher level rate shall be paid as a weekly all purposes
allowance of $68.00.
20.10.4 Such work involves an employee acting as a first point of contact for non-
English speaking service users or service users with hearing difficulty. The
employee identifies the resident's area of inquiry and provides basic
assistance, which may include face-to-face discussion and/or telephone
inquiry.
[2019] FWCFB 6067
45
20.10.5 Such employees convey straightforward information relating to services
provided by the employer, to the best of their ability. They do not replace or
substitute for the role of a professional interpreter or translator.
20.10.6 Such employees shall record their use of community language skills.
20.10.7 Where an employee is required by the employer to use community language
skills in the performance of their duties
a) the employer shall provide the employee with accreditation from a
language/signing aide agency
b) The employee shall be prepared to be identified as possessing the
additional skill(s)
c) The employee shall be available to use the additional skill(s) as
required by the employer.
20.10.8 The amounts at 20.10.2 and 20.10.3 will be adjusted in accordance with
increases in expense related allowances as determined by the Fair Work
Commission.114
[175] The Employer parties oppose the claim.
[176] After the completion of the oral hearing the following additional material was filed in
relation to this clause:
Submission filed by National Disability Services on 17 May 2019;
Submission filed by Australian Services Union on 17 May 2019;
Submission filed by Health Services Union on 17 May 2019;
Submission filed by United Voice on 17 May 2019;
Submission filed by Australian Business Industrial and NSW Business Chambers
and others on 19 May 2019;
Submission filed by Australian Federation of Employers and Industries on 22 May
2019;
Joint submission filed by the Australian Services Union and Australian Industry
Group on 17 May 2019;
Submission in reply filed by Australian Business Industrial and NSW Business
Chambers and others on 3 June 2019; and
Submission in reply filed by Australian Services Union on 4 June 2019
[177] We do not propose to determine the ASU’s claim at this time. A Background Paper
will be prepared summarising the submissions, evidence and other material before us and we
will issue a Statement setting out how we propose to finalise our consideration of this claim.
114 ASU draft determination, 9 November 2018.
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014285-draft-det-asu-071118.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-040619.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-and-ors-030619.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-and-ors-030619.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-285-report-asuors-170519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-285-report-asuors-170519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-220519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswbc-ors-190519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswbc-ors-190519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uv-170519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-170519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-170519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-170519.pdf
[2019] FWCFB 6067
46
5.5 First aid certificate renewal claim
[178] The HSU seeks to vary the existing first aid allowance to provide for payment of an
allowance for first aid certificate renewal and CPR training.115 Clause 20.4 of the SCHADS
Award currently provides:
20.4 First aid allowance
(a) First aid allowance—full-time employees
A weekly first aid allowance of 1.67% of the standard rate per week will be paid to a full-time
employee where:
(i) an employee is required by the employer to hold a current first aid certificate; and
(ii) an employee, other than a home care employee, is required by their employer to
perform first aid at their workplace; or
(iii) a home care employee is required by the employer to be, in a given week,
responsible for the provision of first aid to employees employed by the employer.
(b) First aid allowance—casual and part-time employees
The first aid allowance in 20.4(a) will apply to eligible part time and casual employees on a
pro rata basis on the basis that the ordinary weekly hours of work for full-time employees are
38.
[179] The HSU seeks to vary clause 20.4 to insert a new paragraph (c) as follows:
(c) First aid refresher
(i) Where an employee is required to maintain first aid certification, the employer will
pay the full cost of the employee updating their first aid certification by:
a. reimbursing the employee’s registration and attendance expenses; or
b. paying the registration and attendance costs.
(ii) Attendance at first aid refresher courses will be work time and paid as such.
[180] In support of its claim the HSU contends that many employees engaged in disability
support or home care roles are required to hold a current first aid certificate in their roles116
and, further, even when not explicitly required, the holding of such qualification is likely to
benefit employers as employees are better equipped to deal with a medical emergency. It
submits that where an employee is required to maintain their first aid certification, they should
be entitled to reimbursement of the costs of maintaining the certification by their employer.
115 HSU Submission, 15 February 2019, [5]
116 Ibid at [63]
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/1-am201826-sub-asu-150219.pdf
[2019] FWCFB 6067
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[181] Four witnesses called by the HSU gave evidence relating to this claim. This evidence
is extracted below:
Robert Sheehy, an employee of HSU NSW said:
‘The cost of renewing first aid certificates is an issue commonly raised with me and
my organisers by member.’117
William Elrick, an organiser with HACSU Victoria said:
‘The cost of renewing first aid qualifications is something that is often raised by
members a an issue. First Aid and CPR are essential to work in disability services.
Without a first aid certificate, an employee can’t work this sector. Costs vary
depending on the training provider, but, for example, St John Australia charges $159
for a one day refresher course for those who hold a current first aid certificate less than
2 years old, and $75 for a CPR course.’118
Thelma Thames, a support worker employed by an aged care provider said:
‘I hold a first aid certification. My employer pays or us to do the training through Red
Cross. First aid is essential or employees doing the work we do. I used to be an
enrolled nurse so I have some nursing experience. That training comes in handy when
working with clients.’119
Bernie Lobert, a disability support worker said:
‘As a disability support worker you are required to have a current first aid
certification, otherwise you can’t get work. You need a CPR update every year and a
new first aid certificate every three years. It costs approximately $100 or the first aid
training once every three years, and $60 for the CPR training once a year. That works
out to a cost to the employee of roughly $90 dollars a year.’120
[182] The evidence to the cost was summarised by counsel for the HSU in the course of
closing argument, as follows:
‘I think the evidence in the material about the cost of a course is that it’s in the territory of a
hundred to $150 to do that sort of training each year.’121
[183] The evidentiary case advanced by the HSU falls well short of what would be required
to persuade us to grant the claim. There is simply no probative evidence that establishes:
the prevalence of employees covered by the Award being required to retain current
first aid certificates;
117 Exhibit HSU4 at [17].
118 Exhibit HSU6 at [45].
119 Exhibit HSU1 at [23].
120 Exhibit HSU2 at [22].
121 Transcript at [1948].
[2019] FWCFB 6067
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what (if any) training or refresher training is required in order for an employee to
hold a current first aid certificate;
the duration of such training;
the frequency with which such training must be undertaken in order to retain a
current first aid certificate (if at all);
whether the fees payable differ between different training providers; or
any other amounts payable to attend such training.
[184] Given the paucity of the Unions’ evidentiary case, the Commission is unable to even
estimate the potential cost of the claim.
[185] Further, the HSU’s submissions failed to adequately address the s.134 considerations
and give scant attention to s.138.
[186] Given the absence of a cogent merit argument it would be patently unfair to impose a
new unquantified financial obligation on employers.
[187] We are not satisfied that the variation proposed is necessary to ensure that the
SCHADS Award achieves the modern awards objective. The evidence adduced in support of
the claim is very limited and is insufficient to establish the requisite merit for the claim to
succeed.
[188] We note ABI’s alternate submission that consideration be given to introducing a
requirement requiring employers to reimburse employees for the time and cost associated
with maintaining their first aid certification but that such a requirement be limited to
employees who are designated as first aid officers to provide first aid to fellow employees at
their workplace. This proposal can be the subject of further discussion between the parties.
The Commission is available to facilitate such discussions if requested to do so.
5.6 Variation to public holidays clause
[189] UV seek to vary clause 34.2(c) of the Award as follows:
34.2 Payment for working on a public holiday
(a) An employee required to work on a public holiday will be paid double time and a half of
their ordinary rate of pay for all time worked.
(b) Payments under this clause are instead of any additional rate for shift or weekend work
which would otherwise be payable had the shift not been a public holiday.
(c) Rosters must not be altered for the purpose of avoiding public holiday entitlements under
the Award and the NES.
[190] UV cites ss.114 and 116 of the Act and submits that employers are altering the rosters
of part-time employees to avoid the payment of public holiday rates. UV contends that the
variation proposed is consistent with the modern awards objective, primarily in ensuring that
the SCHADS Award is ‘fair and relevant’ and provides that part-time employees do not
receive less pay than they are entitled to.
[2019] FWCFB 6067
49
[191] The ‘highpoint’ of UV’s evidentiary case was in the witness statement of Robert
Sheehy an employee with HSU NSW Branch, who said:
‘20. Our branch has run a number of disputes for members where employer have altered
rosters to avoid paying employees public holiday entitlements.
21. It’s not uncommon for employers to change the roster shortly before a public holiday,
with the consequence that the employee is not paid for that day. For example, an employee
may work every Monday but will be taken off that Monday for the two week period where the
public holiday falls. Often employers will cite client cancellation as the reason for changing
an employee’s roster.’
[192] No evidence was provided as to any dispute notified to the Commission in respect of
the issue to which the proposed variation is directed.
[193] UV effectively conceded122 that no cogent evidence was advanced in support of the
proposition that employers were systematically altering rosters to avoid public holiday
entitlements. The submission put amounted to little more than an assertion by UV that ‘some
of our members have reported having their rosters changed in a manner inconsistent with
clauses 8A and 10.3 of the Award’.123
[194] We are not satisfied that the variation proposed is necessary to ensure that the
SCHADS Award achieves the modern awards objective. The Award already prescribes the
circumstances in which rosters may be altered and changes may be made to set patterns of
work and UV has failed to adduce probative evidence of systemic abuse of these provisions.
The claim is rejected.
6. Conclusion and Transitional Arrangements
[195] In summary, we have decided to:
set out a process for addressing the lack of clarity and other deficiencies in the 24
hour care clause;
vary the rates of pay of casual employees who work overtime and on weekends and
public holidays (subject to the views we express below about transitional
arrangements);
defer consideration of the ASU’s claim for a community language skills allowance;
reject the first aid certificate renewal claim; and
reject UV’s claim to vary the public holiday clause.
[196] We now turn to consider the appropriate transitional arrangements in respect of our
decision to vary the rates of pay of casuals working overtime and working on weekends and
public holidays.
122 Transcript at [337].
123 Transcript [328] – [340].
[2019] FWCFB 6067
50
[197] In the Penalty Rates – Transitional Arrangements decision124 the Full Bench made the
following observation about the determination of transitional arrangements:
‘the determination of appropriate transitional arrangements is a matter that calls for the
exercise of broad judgment, rather than a formulaic or mechanistic approach involving the
quantification of the weight accorded to each particular consideration.’125
[198] The Full Bench went on to observe that the following matters were relevant to its
determination of transitional arrangements in relation to the reduction of penalty rates.
(i) The statutory framework: any transitional arrangements must meet the
modern awards objective and must only be included in a modern award
to the extent necessary to meet that objective. The Full Bench also noted
that it must perform its functions and exercise its powers in a manner
which is ‘fair and just’ (as required by s.577(a)) and must take into
account the objects of the Act and ‘equity, good conscience and the
merits of the matter’ (s.578).
(ii) Fairness is a relevant consideration, given that the modern awards
objective speaks of a ‘fair and relevant minimum safety net’. Fairness in
this context is to be assessed from the perspective of both the employees
and employers covered by the modern award in question.126 The Full
Bench said “while the impact of the reductions in penalty rates on the
employees affected is a plainly relevant and important consideration in
our determination of appropriate transitional arrangements, it is not
appropriate to ‘totally subjugate’ the interests of the employers to those
of the employees.”127
[199] We adopt the above observations and propose to apply them to the matter before us. It
is our provisional view that the increase in the weekend and public holiday penalty rates for
casuals should be phased in as follows:
Saturday Sunday Public holidays
(% of ordinary rate, inclusive of casual loading)
1 December 2019: 160 210 260
1 July 2020: 175 225 275
[200] It is our provisional view that the increase in overtime rates for casuals be operative
from 1 December 2019.
[201] A draft variation determination reflecting our provisional views is set out at
Attachment D.
124 [2017] FWCFB 3001.
125 Ibid at para [142].
126 Ibid at paras [117] – [119].
127 Ibid at para [148].
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3001.htm
[2019] FWCFB 6067
51
7. Next Steps
[202] Interested parties are to file any submissions in relation to the provisional views set
out at [200] and [201] above and the draft variation determination by 4pm on Friday 20
September 2019. Any reply submissions are to be filed by 4pm on Friday 4 October 2019.
Any issues in contention will be the subject of a hearing on Monday 14 October 2019 at
2pm. All submissions are to be sent to AMOD@fwc.gov.au.
[203] A mention will be held shortly in relation to the programming and materials relating to
the second stage of these proceedings.
PRESIDENT
Appearances:
Mr Robson for the Australian Services Union with G South
Ms L Doust for the Health Services Union with Ms R Liebhaber
Ms N Dabarera for United Voice with Ms Bolton
Mr B Ferguson for the Australian Industry Group with Ms R Bhatt
Mr K Scott for Australian Business Industrial and the New South Wales Business Chamber;
Aged and Community Services Australia and Leading Age Services Australia with Ms
Tiedman
Ms M Pegg for National Disability Services
Ms N Shaw for Australian Federation of Employers and Industry
Hearing details:
Sydney
2019
15, 16 and 17 April
Printed by authority of the Commonwealth Government Printer
PR711877
mailto:AMOD@fwc.gov.au
[2019] FWCFB 6067
52
ATTACHMENT A – Outstanding Claims
UV claims:
S2 – variation to ensure the payment of travel time for home care workers
S2A – variation to the clothing and equipment allowance
S3 – variation to the rosters clause
S19A – paid travel time
S21 – variation to telephone allowance
S37 – Broken shifts
S49 – variation to correct a cross-referencing error
Minimum engagements
HSU claims:
S16 – Amendments to various classification criteria
S19 and S20A – Phone allowance, travel allowance and damaged clothing allowance
S22 – On call and recall allowance
S24 – Payment of wages
S28 and S32 – Variation to ordinary hours of work and rostering clauses
S29 – Variation to client cancellation provisions
S35 – Deletion or variation of broken shifts clause
S38 – Amendments to sleepover clause
S45 – Excursions (new entitlement to additional annual leave for employees engaged in
excursions)
S50 – Variation to overtime clause
S54 – Variation to shift work clause
ASU claims:
S36 – Variation to broken shifts clause
ABI claims:
S5 – variation to include a ‘remote response payment’
S23 – On call allowance
S25 – ordinary hours of work
S29 – client cancellation
S53 – recall to work overtime
[2019] FWCFB 6067
53
ATTACHMENT B – Oral Evidence and Witness list
Tab Exhibit
No.
Tendered
by
Witness Statements and TN’s
1. ASU1 ASU
Witness statement of Dr. Ruchita dated 14 February 2019
(with amendments)
PN525 – PN540: Examination in chief by ASU (Mr Robson)
PN540 – PN585: Cross-examination by ABI & NSW BC
(Mr Scott)
2. ASU2 ASU
Witness statement of Ms Nadia Saleh dated 14 February
2019 (with amendments)
PN591 – PN597: Examination in chief by ASU (Mr Robson)
PN597 – PN633: Cross-examination by Ai Group
(Mr Ferguson)
PN635 – PN643: Re-examination by ASU (Mr Robson)
3. ASU3 ASU
Witness statement of Ms Natalie Lang dated 18 February
2019 (with amendments)
PN647 – PN652: Examination in chief by ASU (Mr Robson)
PN654 – PN700: Cross-examination by Ai Group
(Mr Ferguson)
4. ASU4 ASU
Witness statement of Mr Lou Bacchiella dated 13 February
2019 (with amendments)
PN702 – PN714: Examination in chief by ASU (Mr Robson)
PN716 – PN758: Cross-examination by Ai Group
(Mr Ferguson)
PN759 – PN776: Cross-examination by ABI & NSW BC
(Mr Scott)
PN778 – PN790: Re-examination by ASU (Mr Robson)
5.
Ai Group 1 AiG Community Language Allowance Scheme Handbook 2018
– Multicultural NSW; NSW Government
PN687 – PN695: Examination by Justice Ross
6. HSU1
Health
Services
Union
Witness statement of Thelma Thames dated 15 February
2019
PN1408: HSU (Ms Doust) – paragraphs 20 to 22 not to be
read for the present purposes
PN1417, PN1426 – PN1429: Ai Group (Mr Ferguson) –
objection to paragraph 15
PN1430: Ai Group (Mr Ferguson) – objection to paragraph 16
[2019] FWCFB 6067
54
Tab Exhibit
No.
Tendered
by
Witness Statements and TN’s
PN1434: Ai Group (Mr Ferguson) – objection to paragraph 19
7. HSU2
Health
Services
Union
Witness statement of Mr Bernie Lobert dated 15 February
2019
PN1410: HSU (Ms Doust) – paragraphs 18 to 21 not to be
read for the present purposes
8. HSU3
Health
Services
Union
Witness statement of Mr Mark Farthing dated 15 February
2019
(with amendments)
PN1581 – PN1601: Examination in chief by HSU (Ms Doust)
PN1603 – PN1631: Cross-examination by ABI & NSW BC
(Mr Scott)
PN1635 – PN1645: Re-examination by HSU (Ms Doust)
PN1648 – PN1651: Ai Group (Mr Ferguson) sought leave to
have the witness recalled in the event that something fell out
of the update re the budget point
9.
HSU4 Health
Services
Union
Witness statement of Mr Robert Sheehy dated 15 February
2019
PN1668: No cross-examination required by ABI & NSW BC
(Mr Scott)
10. HSU5
Health
Services
Union
Witness statement of Mr James Eddington dated 15
February 2019 (with amendments)
PN1668: No cross-examination required by ABI & NSW BC
(Mr Scott)
11.
HSU6 Health
Services
Union
Witness statement of Mr William Elrick dated 15 February
2019
PN1668: No cross-examination required by ABI & NSW BC
(Mr Scott)
[2019] FWCFB 6067
55
ATTACHMENT C – draft variation determination
MA000100 PRXXXXXX
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, XX OCTOBER 2019
4 yearly review of modern awards – award stage – group 4 awards – substantive issues –
Social, Community, Home Care and Disability Services Industry Award 2010.
A. Further to the decision [2019] FWCFB 6067 issued by the Fair Work Commission, the
above award is varied as follows:
1. By deleting the words “and the casual loading prescribed in clause 10.4(b)” in clause
26.
2. By numbering the paragraph in clause 26 as 26.1
3. By inserting clause 26.2 as follows:
26.2 Casual employees will receive their casual loading in addition to the Saturday and
Sunday rates at clause 26.1.
4. By inserting clause 26.3 as follows:
26.3 The rates are in substitution for and not cumulative upon the shift premiums
prescribed in clause 29—Shiftwork and are not applicable to overtime worked on a
Saturday and Sunday.
5. By inserting clause 26.4 as follows:
26.4 A casual employee who works on a weekend will be paid the following rates:
DRAFT DETERMINATION
[2019] FWCFB 6067
56
(a) From 1 December 2019 to 30 June 2020
(i) Between midnight Friday and midnight Saturday – 160% of the ordinary
hourly rate (inclusive of the casual loading); and
(ii) Between midnight Saturday and midnight Sunday – 210% of the ordinary
hourly rate (inclusive of the casual loading).
(b) From 1 July 2020
(i) Between midnight Friday and midnight Saturday – 175% of the ordinary
hourly rate (inclusive of the casual loading); and
(ii) Between midnight Saturday and midnight Sunday – 225% of the ordinary
hourly rate (inclusive of the casual loading).
6. By deleting clause 28.1(b)(iv) and inserting the following:
(iv) Overtime rates payable under this clause will be in substitution for and
not cumulative upon the shift premiums prescribed un clause 29—
Shiftwork and are not applicable to ordinary hours worked on a Saturday.
7. By inserting clause 34.2(c) as follows:
(c) A casual employee will be paid the casual loading under clause 10.4(b) in
addition to the public holiday penalty at clause 34.2(a).
8. By inserting clause 34.2(d) as follows:
(d) Casual employees from 1 December 2019 to 30 June 2020
(i) A casual employee will be paid only for those public holidays they work at
260% of the ordinary hourly rate for hours worked (inclusive of the
casual loading).
9. By inserting clause 34.2(e) as follows:
(e) Casual employees from 1 July 2020
(i) A casual employee will be paid only for those public holidays they work at
275% of the ordinary hourly rate for hours worked (inclusive of the
casual loading).
10. By updating cross-references accordingly.
[2019] FWCFB 6067
57
B. This determination comes into operation from XX XXXX 2019. In accordance with
s.165(3) of the Fair Work Act 2009 these items do not take effect until the start of the first full
pay period that starts on or after XX XXXX 2019.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
