1
Fair Work Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective
Social, Community, Home Care and Disability Services Industry Award
2010
(AM2020/100)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE MELBOURNE, 26 NOVEMBER 2020
Social, Community, Home Care and Disability Services Industry Award 2010 – Equal
remuneration case.
Background
[1] On 16 May 2011, the Commission1 issued a decision2 for an equal remuneration order
under Part 2-7 of the Fair Work Act 2009 (Act) in the social, community and disability
services industry throughout Australia. In that decision, the Full Bench summarised their
findings as follows:
‘[291] we have concluded that for employees in the SACS industry there is not equal
remuneration for men and women workers for work of equal or comparable value by
comparison with workers in state and local government employment. We consider gender has
been important in creating the gap between pay in the SACS industry and pay in comparable
state and local government employment. And, in order to give effect to the equal remuneration
provisions, the proper approach is to attempt to identify the extent to which gender has
inhibited wages growth in the SACS industry and to mould a remedy which addresses that
situation. We have reached some preliminary views about how that might be done, recognising
that simply adopting the pay rates resulting from the Queensland Equal Remuneration decision
is not appropriate. It is desirable, however, that we give the parties the opportunity to make
further submissions on the matters.’3
[2] On 1 February 2012, the Commission issued a further decision4 in which the majority
of the Full Bench concluded as follows:
“[55] In the May 2011 decision, having indicated that we intended to make an equal
remuneration order, we recommended that the parties enter into discussions with a view to
1 Then called Fair Work Australia.
2 [2011] FWAFB 2700.
3 Ibid at [291].
4 [2012] FWAFB 1000.
[2020] FWCFB 6333
STATEMENT
E AUSTRALIA FairWork Commission
[2020] FWCFB 6333
2
reaching agreement on the terms of an order. The Joint Submission contains an agreement
between the Commonwealth and the applicants on the main elements of an order. Although the
Commonwealth is not a SACS industry employer, it plays a very important funding role, both
directly and through the provision of funds to the states.
[56] An important, though provisional, view expressed in the May 2011 decision is that any
equal remuneration order we make should take the form of an addition to rates in the modern
award. In light of the submissions we have now received, we confirm that conclusion...
[61] ...we have decided that any equal remuneration order we make should be based on the
wages in the modern award. The proposals in the Joint Submission are consistent with that
requirement. Importantly, the percentage additions to the modern award wages, as varied from
time to time in annual wage reviews, will provide an ongoing remedy for the part gender has
played in inhibiting wages growth in the SACS industry...
[66] The percentages we have decided on at the various modern award levels in response to
the proposals set out in paragraph 5 of this decision are as follows:
Level 2—19%
Level 3—22%
Level 4—28%
Level 5—33%
Level 6—36%
Level 7—38%
Level 8—41%
[67] These percentages are in line with the proposals in the Joint Submission. As we have
already indicated, however, we have decided to extend the length of the agreed
implementation period. The percentage loadings will be introduced over eight years, in nine
equal instalments, commencing on 1 December 2012 and ending on 1 December 2020. This
extends the implementation period proposed in the Joint Submission by two years. This
extension is in recognition of the potential effects of the equal remuneration order on
employment and service provision, and on state finances...
[68] We deal now with the proposal for cumulative annual loadings of 1 per cent over the first
four years of the implementation period. The parties to the Joint Submission proposed, under
the heading “Minimum wage adjustments and transitional arrangements”, a loading of 1 per
cent per annum in December of each of the years 2012, 2013, 2014 and 2015 to recognise
impediments to bargaining in the industry and to provide national consistency with the
position in Queensland. It was said that these amounts would “provide short term
compensation for the SACS industry for its historical inability to bargain while it transitions to
the new funding and workplace relations environments.”
[69] We have already indicated that the percentages proposed at each level are too close to
current public sector wage levels. For this reason and because of the concerns we have already
expressed about the potential impact of the order, we have decided that the proposed loadings,
totalling a 4 per cent addition to wages, should be subject to the same implementation
arrangements as the percentage additions to wages at each level. Therefore our order will
[2020] FWCFB 6333
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provide for a loading of 4 per cent to be introduced in nine equal instalments over the period 1
December 2012 to 1 December 2020...
[73] We are prepared to make an equal remuneration order in the terms indicated. Such an
order will ensure that for the employees to whom the order will apply, there will be equal
remuneration for work of equal or comparable value. The percentage additions at each wage
level and the further 4 per cent loading will be introduced in nine equal instalments on 1
December in each of the years 2012 to 2020…
[77] The next matter is whether the order should provide for the absorption of overaward
payments. There was general support for absorption. We think it is appropriate that the order
should include a provision similar to clause 2.2 of the modern award.
[78] The final matter is whether the order should form part of the award or stand alone. Most
parties took the view that the order should stand alone. Of the parties who addressed the
operation of the better off overall test for enterprise agreements, most took the view that the
benefit of the order would be protected by the terms of s.306 of the Act regardless of the
operation of the better off overall test. We agree. The order should stand alone. Steps will be
taken to include a notation in the modern award alerting readers to the existence of the order...
[82] We require the applicants to file draft orders to give effect to this decision within 21
days.”
[3] On 22 June 2012, the Commission issued a further decision and an equal remuneration
order,5 in which the Full Bench characterised the order in the following terms:
‘[5] …Amongst other things, it is a stand alone order that takes into account the full and
ongoing remedy the majority indicated it was prepared to make. It also takes into account the
current minimum wages for the relevant employees under the Social, Community, Home Care
and Disability Services Industry Award 2010, including those in relevant transitional minimum
wage instruments and/or award based transitional instruments, as well as the outcome of
annual wage reviews. Subject to the absorption of overaward payments, it ensures each
relevant employee receives the benefit of the remedy from the commencement of the phase-in
period, throughout a year and in the nine equal instalments decided. The instalment date of the
first full pay period on or after 1 December each year is administratively consistent with the
decision. The quantum of each of the nine equal instalments is dependent on the difference
between the current minimum wages and the full remedy. This evens out the overall cost
impact over the nine instalments, making for an appropriate overall cost impact in any one
year. It also provides for salary packaging.’
Next steps
[4] At present the existence of the equal remuneration order is noted in the Social,
Community, Home Care and Disability Services Industry Award 2010 (the SCHADS Award).
From 1 December 2020, the transitional provisions of the equal remuneration order will have
been implemented. As at 1 December 2020, the final instalment from the equal remuneration
order (modern award rate plus the final equal remuneration payment) will apply for Social
and Community Services and Crisis Accommodation classifications which are found in
Schedules B and C of the SCHADS Award.
5 PR525485.
[2020] FWCFB 6333
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[5] It is our provisional view that the final rates of pay from the equal remuneration order
be incorporated into Schedules B and C of the SCHADS Award. Attachment A to this
Statement includes a draft determination setting out the final equal remuneration rates of pay
that we propose to insert into Schedules B and C of the Award. We also propose to delete the
note in clause 15 of the SCHADS Award which currently states:
‘2. An equal remuneration order [PR525485] also applies to employees in the
classifications in Schedule B and Schedule C of this modern award’.
[6] Interested parties have until 4.00 pm on Monday 21 December 2020 to provide
submissions on our provisional view. Parties are also asked to comment on the draft
determination at Attachment A to this Statement. All submissions are to be sent to
chambers.ross.j@fwc.gov.au and amod@fwc.gov.au.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR724877
mailto:amod@fwc.gov.au
mailto:chambers.ross.j@fwc.gov.au
[2020] FWCFB 6333
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Attachment A
Fair Work
Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective
Social Community, Home Care and Disability Services Industry Award
2010
(AM2020/100)
SOCIAL COMMUNITY, HOME CARE AND DISABILITY SERVICES
INDUSTRY AWARD 2010
[MA000100]
Social, community, home care and disability services
JUSTICE ROSS, PRESIDENT PLACE, 1 FEBRUARY 2020
Social, Community, Home Care and Disability Services Industry Award 2010 – Equal
remuneration case.
A. Further to the Decision [[2020] FWC XXXX] issued by the Fair Work Commission
on XX Month 2021, the Social, Community, Home and Disability Services Industry Award
2010 is varied as follows:
1. By deleting the note: “2. An equal remuneration order [PR525485] also applies to
employees in the classifications in Schedule B and Schedule C of this modern award.”
appearing in clause 15.
MA000100 PRXXXXXX
DRAFT DETERMINATION
http://www.fwc.gov.au/awardsandorders/html/pr525485.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcxxxx.htm
[2020] FWCFB 6333
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2. By inserting clause B.9 as follows:
B.9 Final equal remuneration rates for applicable Social and Community Services
employees, from 1 December 2020
Clause
Minimum
weekly rate
Final Rate
Percentage
Final
weekly
wage
Final
hourly
wage
Classification $ % $ $
Social and community
services employee level 2
15.2
Pay point 1 877.60 123 1079.45 28.41
Pay point 2 905.10 123 1113.27 29.30
Pay point 3 932.60 123 1147.10 30.19
Pay point 4 957.60 123 1177.85 31.00
Social and community
services employee level 3
15.3
Pay point 1 (associate
diploma/advanced certificate)
957.60 126 1206.58 31.75
Pay point 2 985.10 126 1241.23 32.66
Pay point 3 (3 year degree) 1006.10 126 1267.69 33.36
Pay point 4 (4 year degree) 1026.70 126 1293.64 34.04
Social and community
services employee level 4
15.4
Pay point 1 1054.20 132 1391.54 36.62
Pay point 2 1081.80 132 1427.98 37.58
Pay point 3 1109.60 132 1464.67 38.54
Pay point 4 1134.30 132 1497.28 39.40
Social and community
services employee level 5
15.5
Pay point 1 1162.00 137 1591.94 41.89
Pay point 2 1186.90 137 1626.05 42.79
Pay point 3 1214.60 137 1664.00 43.79
Social and community
services employee level 6
15.6
Pay point 1 1242.30 140 1739.22 45.77
Pay point 2 1269.70 140 1777.58 46.78
Pay point 3 1297.20 140 1816.08 47.79
Social and community
services employee level 7
15.7
Pay point 1 1324.70 142 1881.07 49.50
Pay point 2 1352.50 142 1920.55 50.54
Pay point 3 1380.00 142 1959.60 51.57
[2020] FWCFB 6333
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Clause
Minimum
weekly rate
Final Rate
Percentage
Final
weekly
wage
Final
hourly
wage
Social and community
services employee level 8
15.8
Pay point 1 1407.50 145 2040.88 53.71
Pay point 2 1435.10 145 2080.90 54.76
Pay point 3 1462.90 145 2121.21 55.82
NOTE: The final equal remuneration rates are regarded as part of an employee’s ordinary rate
of pay.
3. By inserting clause C.5 as follows:
C.5 Final equal remuneration rates for Crisis Accommodation employees, from
1 December 2020
Clause
Minimum
weekly rate
Final Rate
Percentage
Final
weekly
wage
Final
hourly
wage
Classification $ % $ $
Crisis accommodation
employee Level 1
15.3
Pay point 1 (associate
diploma/advanced certificate)
957.60 126 1206.58 31.75
Pay point 2 985.10 126 1241.23 32.66
Pay point 3 (3 year degree) 1006.10 126 1267.69 33.36
Pay point 4 (4 year degree) 1026.70 126 1293.64 34.04
Crisis accommodation
employee level 2
15.4
Pay point 1 1054.20 132 1391.54 36.62
Pay point 2 1081.80 132 1427.98 37.58
Pay point 3 1109.60 132 1464.67 38.54
Pay point 4 1134.30 132 1497.28 39.40
Crisis accommodation
employee level 3
15.5
Pay point 1 1162.00 137 1591.94 41.89
Pay point 2 1186.90 137 1626.05 42.79
Pay point 3 1214.60 137 1664.00 43.79
Crisis accommodation
employee level 4
15.6
Pay point 1 1242.30 140 1739.22 45.77
Pay point 2 1269.70 140 1777.58 46.78
Pay point 3 1297.20 140 1816.08 47.79
[2020] FWCFB 6333
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NOTE: The final equal remuneration rates are regarded as part of an employee’s ordinary rate
of pay.
4. By updating the cross-references accordingly.
B. This determination comes into operation on 1 February 2021. In accordance with
s.165(3) of the Fair Work Act 2009, this determination does not take effect in relation to a
particular employee until the start of the employee's first full pay period that starts on or after
1 February 2021.
PRESIDENT
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