Social, Community, Home Care and Disability Services Industry Award 2010 - [2021] FWCFB 2383

1

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

4 yearly review of modern awards—Social, Community, Home Care and Disability 

Services Industry Award 2010—Substantive claims
(AM2018/26)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE MELBOURNE, 4 MAY 2021

4 yearly review of modern awards – Award stage – Group 4 Awards – substantive issues –
Social, Community, Home Care and Disability Services Industry Award 2010 – Tranche 2.

Chapters Paragraph

1 Background [1]

2 Legislative framework [32]

3 The Reports [38]

3.1        The May 2020 Cortis Report [38]

3.2        The Muurlink Report [141]

3.3        The Stanford Report [158]

3.4        The Macdonald Article [187]

4 General findings on the evidence [211]

5 Working arrangements [229]

5.1 Overview [229]

5.2 Minimum engagement claim [242]

5.3 Broken shifts claims [392]

5.4 Travel time claims [557]

5.5 Variations to rosters claims [590]

5.6       Remote response/recall to work overtime claims [644]

5.7       Client cancellation claims [739]

6 Clothing and equipment claims [843]

7 Overtime for part-time and casuals workers claim [904]

8 24-hour-care claim [988]

9 Sleepover claim [1085]

10 Mobile phone allowance claim [1127]

11 Community language allowance claim [1157]

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DECISION


E AUSTRALIA FairWork Commission




 



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12 Equal Remuneration Order issue [1235]

13 Next steps [1261]

ATTACHMENT A: Exhibit List

ATTACHMENT B: List of submissions 

ATTACHMENT C: Submissions and evidence – Minimum 
engagement claim
ATTACHMENT D: Submissions and evidence – Broken 
shifts claims
ATTACHMENT E: Submissions and evidence – Travel 
time claims
ATTACHMENT F: Submissions and evidence –
Variations to rosters claims
ATTACHMENT G: Submissions and evidence – Remote 
response/recall to work claims
ATTACHMENT H: Remote response clauses

ATTACHMENT I: Submissions and evidence – Client 
cancellations claims
ATTACHMENT J: Submissions and evidence – Clothing 
and equipment claims
ATTACHMENT K: Submissions and evidence – Overtime 
for part-time and casuals workers claim
ATTACHMENT L: Submissions and evidence – 24-hour-
care claim
ATTACHMENT M: Submissions and evidence –
Sleepover claim
ATTACHMENT N: Submissions and evidence – Mobile 
phone allowance claim
ATTACHMENT O: Submissions and evidence –
Community language allowance claim
ATTACHMENT P: Draft determination








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ABBREVIATIONS

ABI Australian Business Industrial and the New South Wales 
Business Chamber, Aged and Community Services Australia 
and Leading Age Services Australia

Act Fair Work Act 2009 (Cth)

AFEI Australian Federation of Employers and Industries

Aged Care Award Aged Care Award 2010

Aged Care Substantive 
Claims Decision

4 yearly review of modern awards – Award stage – Group 4 –
Aged Care Award 2010 – Substantive claims [2019] FWCFB 
5078

Ai Group Australian Industry Group

AIRC Australian Industrial Relations Commission

ASU Australian Services Union

Award Unless the context suggests otherwise, the SCHADS Award

Award Modernisation The process of reviewing and rationalising awards in the 
national workplace relations system to create a system of 
modern awards in accordance with the Minister’s request.

Background Paper 1 Background Paper, 4 yearly review of modern awards – Award 
stage – Group 4 – Social, Community Home Care and 
Disability Services Industry Award 2010 – Substantive claims 
– Tranche 2, 6 January 2020

Background Paper 2 Background Paper 2, 4 yearly review of modern awards –
Award stage – Group 4 – Social, Community Home Care and 
Disability Services Industry Award 2010 – Substantive claims 
– Tranche 2, 4 March 2020

Background Paper 3 Background Paper 3, 4 yearly review of modern awards –
Award stage – Group 4 – Social, Community Home Care and 
Disability Services Industry Award 2010 – Substantive claims 
– Tranche 2, 4 March 2020

Business SA South Australian Chamber of Commerce and Industry T/A 
Business SA






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-background-paper-3-040320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-background-paper-2-040320.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am2018-26-schads-background-paper-060120.pdf
http://www.airc.gov.au/awardmod/request.htm


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Commission Fair Work Commission

ERO Equal Remuneration Order

HSU Health Services Union

Joint Union ASU, HSU and UWU

NDIA National Disability Insurance Authority

NDIS National Disability Insurance Scheme

NDS National Disability Services

NSW New South Wales

Part-time and Casual 
Employment

4 yearly review of modern awards – Casual employment and 
Part-time employment [2017] FWCFB 3541

Part-time and Casual 
Employment Full Bench

The presiding Full Bench on 4 yearly review of modern awards 
– Casual employment and Part-time employment [2017] 
FWCFB 3541

Part-time and Casual 
Employment Common 
Issue Proceedings

AM2014/196 and AM2014/197

Penalty Rates Case 4 yearly review of modern awards – Penalty Rates [2017] 
FWCFB 1001

Report Each of:
The May 2020 Cortis Report (see section 3.1)
The Muurlink Report (see section 3.2)
The Stanford Report (see section 3.3)
The Macdonald Article (see section 3.4)

Review 4 yearly review of modern awards

SACS Social and community services

SCHADS Award Social, Community, Home Care and Disability Services 
Industry Award 2010

September 2019 Decision 4 yearly review of modern awards–Group 4–Social, 
Community, Home Care and Disability Services Industry 
Award 2010–Substantive claims [2019] FWCFB 6067








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Transitional Review Review of all modern awards conducted by the Commission in 
accordance with the Fair Work (Transitional Provisions and 
Consequential Amendments) Act 2009 (Cth).

Union ASU, HSU and UWU

UWU United Workers Union (formerly known as United Voice)








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1. BACKGROUND

[1] The substantive claims in the Review in respect of the SCHADS Award have been 
dealt with in 2 groups: Tranche 1 and Tranche 2. This decision deals with the Tranche 2 
claims.

[2] The following organisations have made or responded to claims in these proceedings:

 Australian Business Industrial, the New South Wales Business Chamber, Aged and 
Community Services Australia and Leading Age Services Australia (ABI)

 Australian Federation of Employers and Industries (AFEI)

 Australian Industry Group (Ai Group)

 Australian Services Union (ASU)

 South Australian Chamber of Commerce and Industry T/A Business SA (Business 
SA)

 National Disability Services (NDS)

 Health Services Union (HSU)

 United Workers Union (UWU).

[3] This decision is structured into the following chapters:

 Chapter 1 explains the background to the claims before us

 Chapter 2 sets out the legislative framework within which we must make our 
decision

 Chapter 3 deals with the expert reports that were filed in the proceedings

 Chapter 4 sets out the common findings we have made based on the evidence that is 
before us

 Chapters 5 to 11 deal with each of the claims before us which relate to:

 minimum engagement 

 broken shifts 

 travel time

 variations to rosters

 remote response/recall to work








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 client cancellations

 clothing and equipment 

 overtime for part-time and casual workers 

 24-hour-care 

 sleepover

 mobile phone allowance, and

 community language allowance 

 Chapter 12 deals with the Equal Remuneration Order (ERO) and the provisional
view expressed in matter AM2020/100, and

 Chapter 13 sets out the next steps in this matter. 

[4] The SCHADS Award covers employers (and their employees in the classifications 
listed in Schedules B to E of the SCHADS Award) 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) (SACS) 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 care (the operation of a family day care scheme for the provision of 
family day care services).

[5] The SCHADS Award includes 3 different minimum rates clauses for the different 
sectors:

 Clause 15 applies to employees working in the social and community services and 
the crisis assistance and supported housing sectors

 Clause 16 applies to employees working in the family day care sector, and

 Clause 17 applies to employees working in the home care sector. 








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[6] In this decision we refer to the social and community services sector as the SACS 
sector and employees in this sector as SACS employees. 

1.1 THE TRANCHE 1 CLAIMS

[7] As mentioned above, this decision deals with the Tranche 2 claims but we begin with a 
short summary of the claims in Tranche 1. On 12 April 2019 a summary document was 
published in relation to Tranche 1 outlining the relevant procedural history, the claims being 
pursued and a summary of the submissions received.

[8] The following claims were dealt with in Tranche 1: 

UWU claims:

 S44A – deletion of 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

 S57 – variation to public holidays clause.

ASU claims:

 S6 – provision of a Community language skills allowance.

HSU claims:

 S19 – first aid certificate renewal 

 S43 – deletion of the 24-hour-care clause

 S48 – Saturday and Sunday work (casual employees receiving casual loading in 
addition to Saturday and Sunday rates).

[9] The Tranche 1 claims were heard on 15 – 17 April 2019. 

[10] On 2 September 2019 we issued the September 2019 Decision which dealt with the 
nature of the Review, the SCHADS Award, the SCHADS sector, the National Disability 
Insurance Scheme (NDIS) and the Tranche 1 claims. In dealing with the Tranche 1 claims, we 
decided to:

 vary the rates of pay of casual employees who work overtime and on weekends and 
public holidays (subject to the views expressed therein about transitional 
arrangements)

 reject the first aid certificate renewal claim

 reject the UWU’s claim to vary the public holiday clause

 defer consideration of the ASU’s claim for a community language skills allowance

 set out a process for addressing the lack of clarity and other deficiencies in the 24-
hour-care clause.






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-fwc-background-120419.pdf


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[11] On 18 October 2019 we issued a decision1 (the October 2019 Decision) resolving the 
transitional arrangements in respect of the decision to vary the rates of pay for casuals 
working overtime and working on weekends and public holidays. We decided that the 
increases in overtime, weekend and public holiday rates for casuals would come into 
operation, in full, from 1 July 2020. A determination2 was issued on 21 October 2019 giving 
effect to the October 2019 Decision.

[12] In relation to the claim for a community language skills allowance, Deputy President 
Clancy published Background Document 1 on 4 December 2019 and directions were issued 
for the hearing of this claim with the Tranche 2 proceedings.

[13] In relation to the 24-hour-care clause a Report was published by Commissioner Lee on 
14 November 2019 and this claim was the subject of submissions in the Tranche 2 
proceedings.

1.2 THE TRANCHE 2 CLAIMS

[14] The Tranche 2 claims being pressed are:

ABI claims:3

 Variation to the client cancellation provision

 Remote response work 

 Variations to rosters.4

ASU claims:

 Broken shift penalty rate

 Paid travel time

 Recall to work overtime away from the workplace.

HSU claims:

 Broken shifts

 Minimum engagements

 Travel

 Telephone allowance

 Uniform/damaged clothing allowance

 Cancellation

                                               

1 [2019] FWCFB 7096.
2 PR713525.
3 In their submissions of 19 November 2019 ABI advised of only 2 claims being advanced by their clients. In its submissions 

of 10 February 2020, ABI confirmed it also wished to press the variations to rosters claim (see p 54). 
4 See Background Paper 2 at [4] – [5].






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-background-paper-2-040320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-191119.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb7096.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014285-draft-report-141119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-dirs-181219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-background-fwc-041219.pdf


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 Sleepover

 Overtime for part-time and casual workers beyond rostered hours/8 hours.

UWU claims:

 Broken shifts

 Travel time

 Variation to clothing and equipment allowance (uniforms)

 Variations to rosters clause

 Mobile phone allowance claim.

[15] On 26 September 2019 a Statement5 was issued directing the parties to file a Court 
Book, by Friday 4 October 2019. The Court Book included draft determinations which were 
filed by:

 ABI on 2 April 2019

 ASU on 7 November 2018 and 2 July 2019

 HSU on 15 February 2019

 UWU on 3 October 2019.

[16] Following the filing of the Court Book, ABI filed an amended draft determination on 
15 October 2019.

[17] The hearing of the evidence in respect of the Tranche 2 substantive claims took place 
in the period 14 – 18 October 2019. The following Transcripts of proceedings have been 
published:

 Monday 14 October 2019

 Tuesday 15 October 2019

 Wednesday 16 October 2019

 Thursday 17 October 2019

 Friday 18 October 2019.

[18] The exhibits tendered at the Tranche 2 Full Bench hearings are listed at 
Attachment A.

[19] Directions issued on 23 October 2019 required the parties to file submissions: 

(i) setting out the claims they are pressing or opposing in the Tranche 2 
proceedings;

(ii) identifying the parts of the Court Book, the exhibits and transcripts which are 
relevant to each claim;

                                               

5 [2019] FWCFB 6685.






https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb6685.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-dirs-231019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/181019_am201826.htm
https://www.fwc.gov.au/sites/awardsmodernfouryr/171019_am201826.htm
https://www.fwc.gov.au/sites/awardsmodernfouryr/161019_am201826.htm
https://www.fwc.gov.au/sites/awardsmodernfouryr/151019_am201826.htm
https://www.fwc.gov.au/sites/awardsmodernfouryr/141019_am201826.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-draft-det-abinswbc-151019.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-reply-draftdet-uv-031019.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-ws-reports-hsu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-courtbook-uv-041019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014285-draft-det-asu-071118.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-draftdet-abi-nswbc-020419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-courtbook-uv-041019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-courtbook-uv-041019.pdf


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(iii) identifying the submissions filed (and which parts of those submissions) they 
rely on in relation to the claims being considered in the Tranche 2 proceedings;

(iv) dealing with the evidence adduced during the proceedings on 15 – 18 October 
2019, including by identifying the findings that they say should be made in 
light of the evidence and referring to the aspects of the evidence which is said 
to support those findings (by reference to particular paragraphs in exhibits and 
the Transcript);

(v) responding to the amended claims filed by ABI on 15 October 2019; and

(vi) responding to the ‘remote response’ claim filed by the ASU on 19 September 
2019 and any written submissions filed in support of it.

[20] The following submissions were filed:

 UWU on 18 November 2019

 Ai Group on 18 November 20196

 HSU on 18 November 2019

 ABI on 19 November 2019

 NDS on 19 November 2019

 AFEI on 19 November 2019 and in reply to ASU and ABI on 19 November 2019

 ASU on 19 November 2019.

[21] On 3 December 2019 we published a Statement7 vacating the hearing scheduled for 
the Tranche 2 claims on 5 and 6 December 2019, noting that:

‘Having considered the submissions filed we have formed the view that further written 
submissions are required. In particular we will be seeking final written submissions from each 
interested party addressing: 

 the findings sought by other parties; 

 whether they agree or contest those findings;

 their reasons (by reference to the evidence) for agreeing or contesting those findings; and

 any submissions in reply to the written submissions referred to at [4] above.

Provision will also need to be made for submissions in reply.’8

                                               

6 Attachment A to Ai Group Submission,18 November 2019 identifies the claims advanced by other parties that are opposed 
by Ai Group and the specific parts of the written submissions filed by Ai Group to date upon which it relies in respect of 

each claim.
7 [2019] FWCFB 8177.
8 [2019] FWCFB 8177 at [6] - [7].






https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb8177.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb8177.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-findings-afei-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-181119.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-aig-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uwu-181119.pdf


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[22] Revised Directions (the December 2019 directions) were issued on 5 December 2019 
as follows:

‘Interested parties are to file written submissions in respect of the following matters by 4:00 pm 
on Friday 7 February 2020:

(a) whether they agree with or contest the findings sought by other interested parties in 
the written submissions listed at paragraph [4] of the December 2019 Statement;

(b) in respect of any submissions made in accordance with paragraph (a) above; the 
reasons for agreeing with or contesting the findings sought, by reference to the 
evidence;

(c) any submissions in reply to the written submissions listed at paragraph [4] of the 
December 2019 Statement; 

(d) responses to the questions posed in the Background Paper; and

(e) submissions in support of the parties preferred position on changes to the 24 hour 
clause as set out in the Report issued by Commissioner Lee on 14 November 2019 
(Note: At [2019] FWCFB 6067, [104] we expressed the provisional view that a 24 
hour clause be retained but that the existing clause does not provide a fair and relevant 
minimum safety net and required amendment).

Interested parties are to file any submissions in reply by 4:00 pm on Monday 
24 February 2020.

Submissions are to be filed in Word format via email to amod@fwc.gov.au.

The matter will be listed for hearing on Wednesday 11 March 2020 at 9:30 am.

Interested parties are granted liberty to apply to vary these directions.’

[23] On 6 January 2020, the Fair Work Commission (Commission) published Background 
Paper 1 to assist the parties in the preparation of the submissions for Tranche 2.

[24] Background Paper 1 set out the procedural history of the Tranche 2 proceedings, the 
claims being pressed in Tranche 2 as well as the submissions9 and the findings sought by the 
parties in respect of those claims. Background Paper 1 also identified the general findings of
the evidence sought by the parties.

[25] Background Paper 1 posed a series of questions to parties with an interest in these 
proceedings. The answers to the questions (and any identified errors in the document) were to 
be filed according to the timetable set out in the December 2019 directions. 

[26] Submissions in response to the December 2019 directions were received from:

 ASU (7 February 2020)

                                               

9 See [2019] FWCFB 8177 at [4].






https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb8177.htm
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-subs-draft-asu-070220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2018-26-schads-background-paper-060120.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2018-26-schads-background-paper-060120.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2018-26-schads-background-paper-060120.pdf
mailto:amod@fwc.gov.au
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb6067.htm
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014285-draft-report-141119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-dirs-051219.pdf


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 NDS (7 February 2020)

 Ai Group (10 February 2020)

 ABI (10 February 2020)

 Joint Union (10 February 2020)

 AFEI (11 February 2020).

[27] Submissions in reply were received from:

 Ai Group (26 February 2020)

 NDS (26 February 2020)

 AFEI (26 February 2020)

 ABI (26 February 2020)

 Joint Union (26 February 2020).

[28] The submissions received in response to the questions posed in Background Paper 1 
are set out in Background Paper 2. 

[29] The following submissions were received in response to Background Paper 2:

 ABI (11 March 2020)

 AFEI (11 March 2020)

 Joint Union (10 March 2020)

 Ai Group (11 March 2020)

 NDS (10 March 2020).

[30] Background Paper 3 dealt with the following claims:

 travel time claims from the ASU, HSU and UWU

 overtime for part-time and casual workers from the HSU 

 the minimum engagements claim from the HSU

 community language skills allowance from the ASU, and

 the 24-hour-care clause matter.

[31] Attachment B sets out the list of submissions received in relation to the Tranche 2 
proceedings.

2. LEGISLATIVE FRAMEWORK

[32] The September 2019 Decision deals with the nature of the Review at [7] to [21]. We 
adopt and apply those principles to this decision.

[33] We note here that the Commission may make a determination varying a modern award 
if the Commission is satisfied the determination is necessary to achieve the modern awards 
objective. The modern awards objective is in s.134 of the Fair Work Act 2009 (Cth) (the Act).






https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-background-paper-3-040320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-background-paper-2-aig-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201816-sub-hsu-andors-100320.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-afei-110320.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-q-abiandors-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-background-paper-2-040320.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-unions-260220.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-abi-andors-260220.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-afei-260220.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-nds-260220.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-aig-260220.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-afei-110220.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-asuandors-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-100220.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-subs-tranche2-nds-070220.pdf


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[34] 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.

[35] What is ‘necessary’ to achieve the modern awards objective in a particular case is a 
value judgment, considering 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.12

[36] 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:13

‘[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 
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.’

[37] 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.’14

3. THE REPORTS

                                               

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

227.
13 CFMEU v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123.
14 Ibid at [46].








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3.1 THE MAY 2020 CORTIS REPORT

[38] On 15 June 2020 the HSU, on behalf the Unions, filed correspondence15 which 
attached a report by Dr Natasha Cortis and Dr Georgia van Toorn titled ‘Working in new 
disability markets: A survey of Australia’s disability workforce’ (the May 2020 Cortis 
Report). The Report is an updated version of the June 2017 report, ‘Working under the NDIS: 
Insights from a survey of employees in disability services’ which was set out at pages 3080-
3128 of the Court Book.

[39] The admission of the May 2020 Cortis Report was opposed, as it was published after 
the oral hearing. We issued a Statement16 referencing the HSU’s correspondence and listed 
the matter for mention. A mention was held on 9 July 2020 and the following parties 
attended:

 ABI

 AFEI

 Ai Group

 ASU

 HSU

 NDS.

[40] The transcript of the mention is available here.

[41] We subsequently decided to admit the May 2020 Cortis Report into evidence and 
issued Directions:17

‘1. By 4pm Monday, 20 July 2020, the union parties are to file submissions setting out:

(i) the parts of the May 2020 Report on which they rely;

(ii) the findings sought on the basis of the parts of the May 2020 Report on which they 
rely; and

(iii) the claims to which the findings sought relate.

2. By 4pm Monday, 10 August 2020, the employer parties are to file:

(i) submissions and any evidentiary material in response to the submissions made by 
the unions pursuant to Direction 1;

(ii) any additional reports, data or other material by way of updating material already 
filed; and

(iii) a notification of whether they wish to cross-examine the authors of the May 2020 
Report.

                                               

15 HSU correspondence, 15 June 2020.
16 [2020] FWCFB 3557.
17 [2020] FWCFB 3634.






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3. By 4pm Monday, 24 August 2020, the union parties are to file submissions in reply to 
the material filed by the employers pursuant to Direction 2.’

[42] The following submissions were filed in relation to the May 2020 Cortis Report:

 Joint Union (20 July 2020)

 AFEI (10 August 2020)

 Ai Group (13 August 2020)

 ABI (10 August 2020)

 NDS (10 August 2020).

[43] We begin by briefly summarising the May 2020 Cortis Report before turning to the 
submissions concerning the report. 

[44] The May 2020 Cortis Report provides information about the workforce delivering 
services in the context of the NDIS. The information is based on a national online survey of 
2,341 disability workers conducted during March 2020. The survey was co-designed by a 
research team in partnership with the HSU, ASU and UWU and was intended to capture 
disability workers’ perspectives about their work and working conditions and their 
experiences of delivering services and supports to people with a disability.

[45] Data on the survey respondents is set out in Chapter 2 of the May 2020 Cortis Report 
and in Tables A.2 to A.6 in Appendix A. In brief:

 66% were female and that proportion was similar across disability service settings

 39% were aged 55 or older (only 14% were aged 34 or under)

 96% worked in roles involving direct work with disability service users or clients 
(direct work was commonly with people with intellectual or cognitive disabilities 
(87%), while 57% worked with people with physical or sensory disabilities and 49%
worked with people with psychosocial or mental health disabilities)

 respondents commonly worked in shared supported accommodation, group home or 
respite facilities (75%), while 29% worked in community access/community 
participation settings, 20% worked in home care settings and 14% worked in day 
programs

 about two-thirds of those in supported accommodation settings said they ‘always’ 
worked with the same clients and 27% said they ‘mostly’ did. This differed across 
disability settings – in co-ordinated case management employment and advocacy 
settings only 26% said they ‘always’ worked with the same clients; for disability 
workers in home-based care and support settings and those in community and day 
program settings, 37% said they ‘always’ worked with the same clients and a further 
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 17% ‘always’ worked on their own with clients, with no other worker present and a 
further 27% ‘mostly’ worked alone. This was higher among those in home-based 
care and support settings, and in co-ordinated and mental/allied health

 a large proportion were very experienced disability workers – a quarter had worked 
in disability services for 20 years or more and a further 29% had done so for 10-20 
years

 most respondents (63%) worked for a charity or not-for-profit organisation, while 
17% worked for a private, for-profit business and 12% for a government 
organisation.

[46] The survey was distributed via the Unions, with online survey links distributed to 
members working in disability services. Some 97% of respondents were union members. The 
authors acknowledge the limitations of engaging workers via their trade unions:

‘However, while engaging workers in research via their trade unions enables researchers to 
capture perspectives of staff who are dispersed across a range of organisations and workplaces, 
there are some limitations. In general, younger workers are less likely to be union members 
than older workers, as are those in smaller workplaces (Gilfillan and McGann, 2018). As such, 
union-based research samples may underrepresent workers who are newer to the industry and 
who are employed casually, and may over-represent those in larger, more established 
workplaces. Further, responses are likely to reflect conditions where union-negotiated 
enterprise agreements are in place, where better working conditions and safety protocols could 
be expected to result from a stronger union presence. Results should therefore be interpreted 
primarily as representations of the experiences and conditions of unionised workers and 
unionised workplaces, which tend to be better for workers than across the industry as a whole. 

A further sampling issue to note is that workers who provide services in private homes and in 
the community are generally more difficult to engage in research compared with those in 
‘fixed’ workplaces such as offices or residential facilities, as the former are with clients or 
moving between them and have limited time to spend participating in research or other non-
client focused activities. As such, there are large numbers of workers in group home / 
supported accommodation settings among survey respondents, while home and community-
based care and support workers, along with casual workers are underrepresented. To address 
these issues, responses for sub-groups of respondents have been examined through the report –
including for disability support workers delivering services in supported accommodation
settings, in home-based care and support settings, community-based or day program settings, 
and other settings. In addition, data is broken down for casual workers; workers who were 
newer to the industry or more experienced, among other subgroups. These breakdowns are 
reported where they help understand important differences among respondents.’18

[47] The survey findings are presented thematically, covering the following topics:

 working time19

 staffing levels and service quality20

                                               

18 May 2020 Cortis Report, pp 13 - 14.
19 Ibid, Chapter 3, pp 22 - 34.
20 Ibid, Chapter 4, pp 35 - 37.








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 perceptions of the NDIS21

 remuneration22

 measures of job quality23

 supervision and support24

 skills qualification and training25

 online platforms26

 safety and reporting.27

[48] The ‘key findings’ are set out in the Executive Summary to the May 2020 Cortis 
Report, some of which are reproduced below:

‘Unpaid work was common among full and part time workers and was considered essential for 
completing core service delivery tasks. 

Workers in the sample worked an average of 33.8 paid hours and 2.6 unpaid hours in the 
previous week, across all their disability jobs. High proportions of workers in home-based care 
and support settings performed unpaid work, as did those in co-ordination, case management, 
employment and advocacy settings. 

 Overall, two in five disability workers (41%) worked at least one unpaid hour in the 
last week. 

 For every paid hour, disability workers donated an additional 4.6 minutes of unpaid 
time (equivalent to 36.8 minutes for an 8-hour day). 

 Unpaid time constituted around 7% of total time worked in the previous week (36.4 
hours, paid and unpaid)…

Many workers also reported instability in their paid work hours, including changes in shift 
times which workers were advised of at short notice. Half of respondents (50%) said they 
worry about rosters, 45% said their shifts change unexpectedly, and 29% said they were often 
called in to work at inconvenient times. Unstable working arrangements undermined the 
reliability of disability workers’ incomes, and their ability to plan their work and organise 
other aspects of their lives…

Many workers report they are not paid for travel costs or travel time between clients or to 
attend team meetings. In addition, workers incur costs in the course of doing disability work, 
including paying for things for clients with their own money, or paying for things they 

                                               

21 Ibid, Chapter 5, pp 38 - 48.
22 Ibid, Chapter 6, pp.49 - 55.
23 Ibid, Chapter 7, pp 56 - 61.
24 Ibid, Chapter 8, pp 62 - 70.
25 Ibid, Chapter 9, pp 71 - 79.
26 Ibid, Chapter 10, pp 80 - 84.
27 Ibid, Chapter 11, pp 85 - 93.








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wouldn’t otherwise buy. Only 29% agreed that they are reimbursed fairly for expenses 
incurred on the job.’28

[49] No party sought to cross-examine the authors of the May 2020 Cortis Report.

[50] Ai Group contended that little, if any, weight should be attributed to the May 2020 
Cortis Report for the reasons set out at paragraphs 4 to 14 of its submission.29 In brief:

 the survey respondents are not a representative sample of employees covered by the 
Award and the responses do not permit conclusions to be reached about the 
workforce or sectors covered by the SCHADS Award. Further, it is not clear if the 
SCHADS Award applies to any of the respondents and if so, how many. Some 
survey respondents may be covered by enterprise agreements

 the survey results reflect no more than the perceptions of a group of employees. 
They do not establish, as a question of fact, that the arrangements, conditions or 
practices referred to are in fact in place or that the issues referred to in fact arise from 
their employment. Such perceptions are of limited if any probative value to the 
Commission’s assessment of whether the provisions proposed for inclusion in the 
Award by the Unions are necessary to ensure that the Award achieves the modern 
awards objective

 the survey respondents are not identified and they have not been called to give 
evidence. Similarly, their employers have not been identified. Accordingly, the 
respondent parties are unable to test the veracity of the survey respondents’ 
responses because they have not been called to give evidence. The survey responses 
are essentially in the nature of hearsay from unidentified employees that cannot be 
tested

 the extent to which the survey respondents’ responses relate to the operation of the 
SCHADS Award, if at all, cannot be discerned. Given that employees may have 
been covered by enterprise agreements, the terms and conditions applying to them by 
virtue of those enterprise agreements may have affected their responses, and

 the survey respondents were almost exclusively union members, and the Unions 
have for some time been advancing a sustained campaign for enhanced terms and 
conditions in the sectors covered by the SCHADS Award. The survey responses may 
have been coloured by such propaganda. 

[51] AFEI made a submission in similar terms.30 In addition, AFEI submitted that the 
survey respondents are not representative of the state distribution of the NDIS workforce.31

AFEI contended that no weight should be given to the May 2020 Cortis Report.

                                               

28 Ibid, pp 7 - 8.
29 Ai Group Submission, 13 August 2020.
30 AFEI Submission, 10 August 2020.
31 AFEI Submission, 10 August 2020, p 2.






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[52] Unlike Ai Group and AFEI, ABI did not advance a general submission to the effect 
that little weight should be attributed to the May 2020 Cortis Report but did challenge some 
of the specific findings advanced by the Unions based on the May 2020 Cortis Report.32

[53] Similarly, as a general proposition, NDS did not take issue with the May 2020 Cortis
Report ‘as a piece of research which provides insights into the experiences of the disability 
support workforce, and which should help to inform workforce strategy for disability service 
providers operating in the NDIS environment’.33 But NDS did challenge the relevance of 
some of the specific findings sought by the Unions. 

[54] In particular, NDS notes that some aspects of the May 2020 Cortis Report point to 
issues of award compliance and the Act already provides an enforcement mechanism. NDS 
also points to ‘a difficulty with relying on the report in support of proposals for variations to 
the modern award, because it is not possible to tell from the data which comments come from 
award or agreement covered employees’.34 NDS provides an illustration of this difficulty by 
pointing to a survey respondent who refers to their sleepover allowance of $77 which is 
higher than the award allowance of $48.45 at the time the survey was conducted. NDS 
submits that the higher amount:

‘may reflect the allowance commonly payable in Victoria under enterprise agreements, but 
which operate on a different basis to the award. We have no way of knowing for certain what 
conditions apply to that respondent.’35

[55] There is considerable force in the general criticisms advanced by Ai Group, AFEI and 
NDS as to the representativeness of the survey upon which the May 2020 Cortis Report is 
based. 

[56] The authors of the May 2020 Cortis Report respond to this criticism in the following 
terms:

‘As the survey was distributed primarily to HSU, ASU and UWU members, 97% of respondents 
were union members. While random sampling would be most representative, this is rarely 
practical in social care research. Recruiting a representative random sample is not realistic for 
disability workers, as there is no central dataset containing lists of all community service or 
disability workers, from which a random sample could be drawn. Recruiting workers via 
employers, while acceptable as a practical research strategy, would mean research participants 
would be drawn from a relatively narrow range of organisational contexts. While every 
approach has strengths and limitations, recruiting workers via their representative 
organisations is a common means of engaging workers as research participants, used in 
multiple studies to gather insight into the ways care work is performed and experienced (e.g. 
Baines and Armstrong, 2019; Trydegard, 2012; Meagher et al, 2019).’36

[57] We acknowledge that there are practical barriers to conducting a stratified random 
sample of disability workers. The absence of a central data set containing a list of all disability 

                                               

32 ABI Submission, 10 August 2020.
33 NDS Submission, 10 August 2020 at para 5.
34 NDS Submission, 10 August 2020 at para 8.
35 NDS Submission, 10 August 2020 at para 9.
36 May 2020 Cortis Report, p 13.






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workers means that such an approach is virtually impossible. However, as the survey sample 
is not a stratified random sample of disability workers covered by the SCHADS Award in our 
view it is not appropriate to extrapolate the results to the workforce generally. 

[58] Contrary to the submissions of Ai Group and AFEI we are not persuaded that the May 
2020 Cortis Report should be given no weight. That said, we acknowledge the significant 
limitations in the data. The survey responses present the untested perceptions of a group of 
disability workers about a range of matters and it is unclear which of the respondents have 
their terms and conditions set by the SCHADS Award, as opposed to an enterprise agreement. 
As a collection of essentially anecdotal perceptions by a significant number of disability 
workers, the May 2020 Cortis Report has some, albeit limited, value.

[59] We now turn to the Joint Unions’ submissions. The findings sought by the Unions are 
grouped by claim.

Minimum engagement, broken shifts and travel time claims

[60] The findings sought from the May 2020 Cortis Report in relation to the HSU’s 
minimum engagement claim, and the Unions’ broken shift and travel claims are: 

1. Disability service employees work a significant amount of unpaid hours.37

2. Common unpaid tasks performed include completing case notes and other
forms of reporting, co-ordination and communication functions, and driving 
and travelling for work (not including travel to and from the first and last 
clients of the day).38

3. Disability service employees are frequently not paid for travel between 
clients.39

4. Disability service employees feel that they are not adequately compensated for 
travel and use of their own vehicle for work.40

5. Disability service employees are under pressure to perform unpaid work in 
order to meet the needs of their clients.41

6. A significant number of disability service employees, particularly home-based 
support workers, feel that they spend too long waiting between paid shifts.42

7. The scheduling of discontinuous or broken shifts puts strain on disability 
service employees.43  

                                               

37 Joint Union Submission, 20 July 2020 at para 9 citing May 2020 Cortis Report, pp 22 - 26. 
38 Ibid, pp 25 - 26.
39 Ibid, p 53.
40 Ibid, pp 48; 53.
41 Ibid, pp 24 - 25; 27 - 34.  
42 Ibid, p 31. 
43 Ibid, pp 32 - 33.






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8. The capacity of employers to require employees to work broken shifts, and the 
lack of a minimum engagement, facilitates the use of unpaid hours and 
fragmentation of work schedules.44

9. These practices undermine the quality and sustainability of work in the sector, 
and the optimism of workers over their careers.45

10. The current SCHADS Award provisions in relation to minimum engagements, 
broken shifts and travel are not adequate to meet the challenges facing 
disability workers in maintaining healthy work-life balance.46

[61] The Joint Unions’ submission identifies the following 8 parts of the May 2020 Cortis 
Report which are said to support the proposed findings.

(i) Section 3.1 and Table 3.1 – Paid and unpaid work hours (pages 22-23)  

[62] The findings in relation to this topic are set out at page 22 and Table 3.1 on page 23 of 
the May 2020 Cortis Report, in particular: 

 overall, workers in the sample worked an average of 33.8 paid hours and 2.6 unpaid 
hours

 for every paid hour of work, the disability workers donated an additional 4.6 
minutes of unpaid time (equivalent to 36.8 minutes for an 8-hour day)

 unpaid work constituted around 7% of total time worked in the last week (36.4 
hours, paid and unpaid).  

(ii) Section 3.3 – Unpaid work time (pages 24-5) 

[63] Section 3.3 of the May 2020 Cortis Report sets out several comments from survey 
participants describing how it is necessary for employees to work additional unpaid hours to 
ensure their clients were supported. 

[64] The authors of the May 2020 Cortis Report observe that, ‘feeling unable to fit in all 
the tasks required by clients was a significant source of strain for workers, who felt conflict 
between their own need to be paid for their work and the need to ensure client needs were
met’.47

(iii) Section 3.4 and Figure 3.1 – Tasks performed during unpaid time (pages 25-26) 

[65] Section 3.4 sets out which tasks survey participants reported they performed during 
unpaid time. 

                                               

44 Ibid, pp 22 - 26.
45 Ibid, pp 22 - 34; 59.
46 Ibid, pp 27 - 34; 100 - 101. 
47 May 2020 Cortis Report, p 25.








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[66] In relation to the Unions’ travel time claim, as well as broken shifts and minimum 
engagement claims, Figure 3.1 shows that 43% of participants spent at least 1 hour of unpaid 
time driving or travelling for work, not including the first and last trip between home and 
work each day. 

[67] The tasks the survey participants reported performing during unpaid time are 
summarised as follows: 

 the most common task, reported by two thirds (67%) of the 960 workers who 
reported unpaid work time, was completing case notes, paper or online forms or 
other reporting, and

 the next most common tasks related to co-ordination and communication functions: 
communicating with colleagues or other service providers (reported by 58%), 
handover tasks (53%) and communicating with a supervisor (48%)48

(iv) Section 3.5, especially 3.5.3 and Appendix Table A.10 – Perceptions of working 
time arrangements (pages 27-34 and 100-101) 

[68] Sections 3.5.1 to 3.5.4 are concerned with issues of stability of working hours, 
unexpected changes in working hours, the structure and organisation of shifts, including its 
impacts on clients, anxiety about rosters and work-life balance.  

[69] Section 3.5.3 is said to be relevant to the Unions’ broken shifts and travel time claims. 
One comment highlighted on page 31 reads: 

‘The only thing I don’t like is split shifts. Especially when working at a group home. I feel I 
waste a lot of money on petrol on those days, as I commute to work, then drive home for the 
split, then drive back to work to start my afternoon split and then drive back home that night.’

[70] According to Figure 3.5 on page 31, 15% of all survey participants and 31% of home-
based support workers agreed that they spend too long waiting between paid shifts. 

(v) Section 5.5 – Further comments on the NDIS (page 48) 

[71] Section 5.5 collates some comments from survey participants in relation to 
compensation for travel and costs of vehicle maintenance, depreciation and fuel: 

‘Community-based support workers consistently raised the issue of having to use their own 
vehicle to transport clients, and not being compensated for the costs of maintenance, 
depreciation and fuel, under NDIS arrangements.   

Staff uses their own cars to transport client must receive a higher amount of 
compensation because after 4 to 5 years we need to purchase another car due to the 
high number of kilometres.

                                               

48 Ibid. 








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I have to use my personal car to transport clients on a daily basis and are not 
adequately compensated for it.

Workers commented that they were required to use their own vehicle due to restrictions on 
funding for client travel. They noted that because clients are funded only for a specified 
number of kilometres, the costs incurred by additional (unfunded) travel are borne by staff.  

I have sustained damage to my car, my petrol cost is out of control and my clients 
barely have enough funding to get by’49

(vi) Section 6.4 and Figure 6.5 – Payment for travel 

[72] Section 6.4 discusses responses to specific questions in relation to work-related travel. 
Figure 6.5 shows that, of the survey participants who responded to the questions, less than a 
quarter agreed with the statements ‘I get paid for travel time between clients’ and ‘I get paid 
for my travel costs (e.g. vehicle allowance, petrol, insurance, tolls)’.50

(vii) Section 6.1 and Figure 6.6 – Payment for team meetings 

[73] Section 6.1 and Figure 6.6 observe that many disability workers reported not being 
paid to attend team meetings.51

(viii) Section 7.3 – Career Prospects 

[74] At page 59 the Report states:

‘a particularly interesting finding is how quickly new workers’ optimism dissipates through 
their careers. Indeed, the proportion of workers who agreed their prospects for advancement 
were good was 56% among those in their first year, however this slips to 38% among those 
with 1-2 years’ worth of experience, and falls further to 30% or less, among those with over 10 
years of experience. This underlines potential retention difficulties, as the industry does not 
appear to be sustaining the optimism held by workers early in their careers.’52

[75] In response to the findings sought by the Unions, ABI submits:

‘Putting aside whether such findings can be made based on the material contained in the Report, 
we note that our clients have advanced alternate proposals in respect of minimum 
engagements, broken shifts and travel time. These alternate proposals are designed to address 
the concerns raised in the Report.’53

[76] We agree with ABI’s observation that the alternate proposals advanced in respect of 
minimum engagements, broken shifts and travel time are intended to address the concerns 
raised in the May 2020 Cortis Report. We return to these proposals later in our decision.

                                               

49 Ibid, p 48.
50 Ibid, p 53.
51 Ibid, p 53. 
52 Ibid, p 59. 
53 ABI Submission, 10 August 2020 at para 4.






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[77] Ai Group submits that the findings sought by the Unions at paragraphs 9(a), (d), (e), 
(f), (g), (h), (i) and (j) of the Joint Unions’ submission should not be made.54

[78] Two things may be said about Ai Group’s submission. The first is that the objections 
to the proposed findings are not particularised; rather they are based on Ai Group’s general 
submission that the survey results should be accorded little weight. The second observation is 
that Ai Group does not oppose proposed findings (b) and (c), that is: 

 paragraph 9(b): Common unpaid tasks performed include completing case notes and 
other forms of reporting, co-ordination and communication functions, and driving 
and travelling for work (not including travel to and from the first and last clients of 
the day), and

 paragraph 9(c): Disability service employees are frequently not paid for travel 
between clients.

[79] We are prepared to make the findings set out at paragraph 9(b) and (c) of the Joint 
Union submission. The finding that disability services workers are frequently not paid for 
travel between clients is relevant to our consideration of the travelling time claim.

[80] We are not persuaded that the May 2020 Cortis Report provides a sufficient 
evidentiary basis for the other findings sought. The concerns expressed by the survey 
respondents relied on in support of the findings proposed are often vague and general in 
character.

HSU’s overtime claims

[81] The findings sought in relation the HSU’s overtime claims are: 

1. disability service employees, particularly those in home-based and community 
and day program settings, have high incidences of short working hours, such as 
20 hours or less paid work per week.55

2. for many employees, arrangement of hours of work in disability services are 
unpredictable, unstable and uncertain.56

3. employees are regularly required to work additional hours above their 
contracted weekly or fortnightly hours. Some employees do not want to work 
additional hours but feel like they cannot say no.57

4. a significant number of part-time as well as casual employees in disability 
services do not feel secure in their working arrangements.58

                                               

54 Ai Group Submission, 13 August 2020 at para 15.
55 Joint Union Submission, 20 July 2020 at para 25 citing May 2020 Cortis Report, p 23.
56 Ibid, p 28.
57 Ibid, p 34.
58 Ibid, p 58.






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5. under current award provisions there is little incentive for employers to review 
employees’ guaranteed hours.

[82] The Joint Unions’ submission identifies the following 3 parts of the May 2020 Cortis 
Report relevant to the above findings.

(i) Section 3.2 and Table 3.2 – Workers with few paid work hours (pages 23-24) 

[83] Section 3.2 observes that: ‘[m]any survey respondents reported working substantially
fewer paid hours than indicated in the mean and median hours shown above… Among all 
respondents, 11 per cent worked 20 hours or less (across all their jobs in disability)’.59

[84] Table 3.2 shows that the settings with the highest incidences of short working hours 
are home-based settings and community and day program settings. For each of these, 18% of 
survey respondents said they worked 20 hours or less paid work per week. 

[85] Comments from survey participants highlighted in this section include: 

‘[I] need to be available for twice the amount of hours I actually work. 

Due to inconsistency of hours, I work two jobs just to reach full time hours.  Problem is both 
demand 25+ hours a week. One job is not enough, two jobs is too much.’60

(ii) Section 3.5, particularly 3.5.1, Figure 3.2 and Appendix Table A.10 and Table 3.2 
– Stability of working hours (pages 27-34 and 100-101) 

[86] Section 3.5.1 focuses on the prevalence of ‘unstable and uncertain hours’ in disability 
work. One comment from a survey participant highlighted in the report was: ‘My hours can 
vary from 7 to 45 hours per week’.61 Other comments included: 

‘I am a casual so until fairly recently I had no idea how many hours I would be working in the 
next week.

Inconsistent, sometimes not enough hours, sometimes too many hours, heavy workload during 
holidays times, expected to work non-stop, favouritism.’62

[87] Figure 3.2 shows that unpredictable hours are a feature of home-based care and 
support setting, as 46% of survey participants disagreed with the statement ‘I work the same 
number of hours each week’.63

[88] Sections 3.5.2 and 3.5.4 are also said to be relevant:

                                               

59 May 2020 Cortis Report, p 23.
60 Ibid, p 24.
61 Ibid, p 28.
62 Ibid.
63 Ibid.








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‘While some workers were worried about receiving too few paid hours, others were asked to 
work more hours than they wanted, and felt guilty about letting down team members and 
clients when they needed to say no.  

Constantly being asked to do extra shifts does not help my mental health, as you feel 
you are letting down the team and the people you support.’64

(iii) Section 7.2 – Security of work and working arrangements (pages 58 – 59) 

[89] The May 2020 Cortis Report found that a ‘substantial minority’ of permanent workers 
surveyed disagreed with the statement ‘My working arrangements feel secure’.65

[90] Ai Group opposes all the Joint Unions’ proposed findings but does not explain the 
basis of its objection.

[91] ABI does not object to the proposed findings at (a) and (b) of [81] above.

[92] In relation to the proposed finding at paragraph 25(c) of the Joint Unions’ submission, 
ABI submits that this finding appears to be advanced based on a single comment made by 1 
survey respondent recorded at page 34 of the May 2020 Cortis Report, to the effect that ‘being 
asked to do extra shifts does not help [their] mental health’. ABI notes that it has been unable 
to find any reference in the May 2020 Cortis Report to employees being ‘required’ to work 
additional hours, or that employees ‘feel like they cannot say no’. On that basis it is submitted 
that there does not appear to be anything in the Report that would support this proposed 
finding.66 We agree with ABI and do not propose to make the finding sought.

[93] We are prepared to make the findings proposed at paragraphs 25(a), (b) and (c) of the 
Joint Unions’ submission (see [81] above). In relation to the finding at paragraph 25(c) we 
agree with Ai Group’s observation that the SCHADS Award requires that agreement must be 
reached on engagement between an employer and part-time employee on a regular pattern of 
work67 and that there is no award-derived obligation on part-time employees to work 
additional hours. Further, there is also no award-derived obligation on casual employees to 
work any hours of work offered to them. But the existence of these legal protections does not 
negate the validity of the perception of some survey respondents that they ‘feel like they 
cannot say no’. 

[94] As to the proposed finding (at paragraph 25(d) of the Joint Unions’ submission) that ‘a 
significant number of part-time as well as casual employees in disability services do not feel 
secure in their working arrangements’, it seems to us that the finding proposed is not 
supported by the May 2020 Cortis Report. In support of the proposed finding the Unions refer 
to page 58 of the May 2020 Cortis Report and Figure 7.3. Figure 7.3 is reproduced below:

                                               

64 Joint Union Submission, 20 July 2020 at para 33 citing May 2020 Cortis Report, p 34.
65 Joint Union Submission, 20 July 2020 at para 34 citing May 2020 Cortis Report, p 58.
66 ABI Submission, 10 August 2020 at para 7.
67 SCHADS Award, clause 10.3(c).






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[95] We note that Figure 7.3 says nothing about part-time employees and, further, while 
48% of casual employees disagreed (or strongly disagreed) with the proposition ‘My working 
arrangements feel secure’, most casual employees either agreed with the proposition, strongly 
agreed or were neutral. In any event it would not be unusual that a significant proportion of 
any group of casual employees may not feel secure in their working arrangements – such is 
the nature of casual employment. We do not propose to make the finding sought.

[96] In relation to proposed finding at paragraph (e) in [81] above, ABI notes that it has 
advanced a proposal to address the issue which is the subject of the complaint.68 We agree and 
would also observe that the finding sought is more in the form of a submission and that the 
part of the May 2020 Cortis Report said to support the proposed finding is not identified. We 
do not propose to make the finding sought.

HSU’s sleepover claim

[97] The findings sought in relation the HSU’s sleepover claim are as follows: 

1. Sleepover shifts can be a source of anxiety and burn out for disability service
workers, who can find themselves unable to sleep during the shift.69

2. The current clause does not provide sufficient protections to ensure employees 
have access to the basic requirements for a night’s sleep during a sleepover 
shift.70

                                               

68 Ibid at para 8.
69 Joint Union Submission, 20 July 2020 at para 35 citing May 2020 Cortis Report, pp 32, 52. 
70 Joint Union Submission, 20 July 2020 at para 35.


Figure 7.3 Agreement with the statement 'My working arrangements feel secure', by employment status in main job 100% 10% 5% 19% 18% 12% · Strongly disagree 80% 19% 20% 18% 42% · Disagree 30% 60% 25% . Neutral 24% 28% 11% 40% 21% . Agree 37% 35% · Strongly agree 20% 26% 24% 42% 9% 9% 9% 0% 7% Permanent Fixed-term (n=1757) Casual (n=342) (n=197) Self-employed / freelance (n=19) All (n=2315)




 

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[98] The Joint Unions’ submission identifies the following 2 aspects of the May 2020 
Cortis Report in support of the above findings.

(i) Section 3.5.3 – Organisation of working hours (page 32) 

[99] On page 32, the May 2020 Cortis Report observes that: 

‘A strong theme in the comments related to sleepover shifts. These were a particular challenge 
and matter of concern for workers in supported accommodation settings, with some workers 
pointing out that these shifts contributed to long hours for little pay, poor wellbeing and safety 
risks: 

Sleepover shifts create extreme anxiety. I am unable to sleep due to anxiety and client 
behaviours. I then have to administer medication whilst tired. I then have to drive 
home after being awake for 24 hours. I have asked management if I can permanently 
drop my sleepover shifts. They have not allowed this and expect me to swap shifts or 
use my leave.
…

‘Not enough days off between shifts. E.g., work 10 days straight, 1 day off, back for 5 
days straight. Burn out. Count sleep overs, when finish at 8am from this time on they 
count this as day off. When finishing night duty/active shift at 7am, from this time they 
count this as day off. Back for morning shift next day’71  

(ii) Section 6.3 – Comments on pay 

[100] It is submitted that further relevant observations and survey responses about sleepover 
shifts are found in section 6.3, such as the following:  

‘The award needs to be changed for sleepover shifts. As it stands, we get a small allowance for 
being at work for 8 hrs, on call, usually limited sleep, always broken and disturbed sleep. I 
don’t believe there are any other healthcare sector workers that are expected to be at work for 
8hrs for $77. I think if the general public knew this they would be shocked.’72

[101] Ai Group opposed proposed finding (b) on the basis that the May 2020 Cortis Report 
does not support the finding proposed.

[102] ABI submits that neither of the two proposed findings can be made based on the 
material contained in the Report:

‘The Report deals with the issue of sleepovers in only a cursory way. There does not appear to 
have been any specific question in the survey about sleepovers put to survey respondents. 
Rather, the Report appears to extract a small number of free-text comments from survey 
respondents at pages 32 and 52 of the Report, which appear to have arisen from survey 
questions about working hours and pay generally. There are brief comments from eight 
respondents extracted in the Report, from a sample size of more than 2000. This is hardly a 
sufficient basis for making generalised findings in industry-wide proceedings. 

                                               

71 May 2020 Cortis Report, p 32. 
72 Joint Union Submission, 20 July 2020 at para 38 citing May 2020 Cortis Report, p 52.






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Further, when the eight comments are considered, the main thrust of the concerns articulated 
appear to be about inadequate rest between shifts, and pay. Only two of the eight comments 
appear to deal with the issue of anxiety or burn out. Another two deal with the issue of quality 
of sleep.

The first finding advanced (at paragraph 35(a) of the Unions’ submission) is based on a very 
small number of brief and generalised comments. We do not consider that the Report provides 
a proper basis for such a finding to be made. 

The second proposed finding (at paragraph 35(b) of the Unions’ submission) is advanced 
without any reference to any part of the Report at all. There is simply no material in the 
Report at all for such a finding to be made’73

[103] We agree with ABI. In our view the May 2020 Cortis Report does not provide a 
sufficient basis for any findings relevant to the sleepover claim.

ASU’s recall to work overtime claim

[104] The findings sought in relation to the ASU’s recall to work overtime claim are:

1. Disability service employees work a significant amount of unpaid hours.74

2. Common unpaid tasks performed include completing case notes and other 
forms of reporting, co-ordination and communication functions.75

3. Short-staffing creates additional duties for supervisory and managerial staff 
who must respond to short notice requests for casual or on-call labour out of 
hours.76

[105] The Joint Unions’ submission identifies the following 3 parts of the May 2020 Cortis 
Report in support of the findings sought.

[106] First, the tasks the survey participants reported performing during unpaid time are 
summarised on page 25 of the May 2020 Cortis Report as follows:

(i) the most common task, reported by two thirds (67%) of the 960 workers who reported 
unpaid work time, was completing case notes, paper or online forms or other 
reporting; and

(ii) the next most common task related to co-ordination and communication functions: 
communicating with colleagues or other service providers (reported by 58%), 
handover tasks (53%) and communicating with a supervisor (48%).

[107] Second, the May 2020 Cortis Report highlights the following observation about 
workloads:

                                               

73 ABI Submission, 10 August 2020 at paras 12 - 15.
74 Joint Union Submission, 20 July 2020 at para 39 citing May 2020 Cortis Report, p 22 - 26.  
75 Ibid, pp 25 - 26.
76 Ibid, pp 35 - 36.






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‘Something needs to be seriously done about House Supervisor and Operations managers 
workload. There is a silent expectation of working long hours and from home after you have 
completed your full days work.’77

[108] Third, the reliance by some services on-call or casual staff is said to create a burden on 
supervisory and managerial staff. The Report observes that:

‘Another survey participant pointed out that while on-call or agency staff were engaged to fill 
gaps, this was not necessarily effective in alleviating workloads for other team members: 

We are dramatically understaffed (5 vacant lines) and shifts are filled mostly by on-
call staff. These staff usually come in, do the minimum and leave. Often important 
paperwork is not done (meds etc) which requires chasing up.’78

[109] Ai Group challenges proposed finding (a), but beyond its general submission does not 
particularise the basis of its objection.

[110] ABI challenges the findings sought based on relevance, submitting: 

‘It is difficult to understand how such findings would militate towards granting the ASU claim. 
There are competing claims before the Commission seeking to address the issue of employees 
being required to remotely perform work outside of their normal working hours. The findings 
advanced do not support the ASU claim any more than they support our clients’ claim in 
respect of a remote response payment regime.’79

[111] It seems to us that the proposed findings seek to advance the propositions that 
disability services employees work a significant number of unpaid hours, and that short-
staffing creates challenges for supervisory and managerial staff. We are not persuaded that a 
sufficient link has been established between the proposed findings and the claims before us.

UWU’s roster claims

[112] The findings sought in relation UWU’s roster claims are: 

1. Many workers reported instability in their paid work hours, including changes 
in shift times which workers were advised of at short notice.80

2. Unstable working arrangements undermined the reliability of disability 
workers’ incomes, and their ability to plan their work and organise other 
aspects of their lives.81

                                               

77 Joint Union Submission, 20 July 2020 at para 41 citing May 2020 Cortis Report, p 36.
78 Joint Union Submission, 20 July 2020 at para 22 citing May 2020 Cortis Report, p 36.
79 ABI Submission, 10 August 2020 at para 19.
80 Joint Union Submission, 20 July 2020 at para 43 citing May 2020 Cortis Report, p 7.
81 Ibid.






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[113] The Joint Unions’ submission identifies the following 2 parts of the May 2020 Cortis 
Report in support of the above findings.

(i) Section 3.5.2 and Figures 3.3 and 3.4 – Unexpected changes in working hours 
(pages 29-30) 

[114] Section 3.5.2 observes that 45% of respondents agreed or strongly agreed with the 
statement ‘My shifts can change unexpectedly’. Higher proportions of workers in home-based 
care settings and community and day program settings agreed with the statement (65% and 
58% respectively), compared with 41% of those in group homes or other supported 
accommodation settings.82 These unexpected changes in shifts underpinned substantial 
financial insecurity.83

[115] Comments from survey participants highlighted in this section are as follows: 

‘Our rosters are a nightmare – changed, swapped, taken off, added on, without asking us.

I am unable to plan my free time. I get very stressed when my roster changes overnight 
without consultation.’84

(ii) Section 3.5, particularly section 3.5.4, Figure 3.6 and Appendix Table A.10–
Stability of working hours (pages 27-34 and 100-101) 

[116] Section 3.5.4 focuses on the impacts of ‘working time arrangements’ in disability 
work. One comment from a survey participant highlighted in the report was: 

‘Rosters are a huge problem. We receive our ‘rosters’ the day before (on the Sunday). However, 
these are highly subject to change throughout the week. This means that participants are put in 
groups together who should not be in groups together (i.e. participants who trigger each others’ 
sensitivities). It also leads to miscommunication and confusion among staff, which in turn 
negatively impacts clients.’85

[117] Figure 3.6 shows, 50% of respondents agreed or strongly agreed with the statement ‘I 
worry about rosters’.86 Figure 3.6 is set out below:

                                               

82 May 2020 Cortis Report, p 29.
83 Ibid, p 30.
84 Joint Union Submission, 20 July 2020 at para 43 citing May 2020 Cortis Report, p 30.
85 May 2020 Cortis Report, p 32.
86 Ibid, p 33.






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Figure 3.6 Proportion who agreed or strongly agreed ‘I worry about rosters’ and 
‘I am often called in to work at inconvenient times’^

^Note: Full data, including the proportions who disagreed or were neutral, and the number of 
respondents on each item, is in Appendix Table A.

[118] Some of the comments in Section 3.5.4 are:

‘It is put up less than a week in advance and only one week at a time. I would prefer a 
fortnightly roster and at least 2 weeks in advance. Sometimes shifts change and it is impossible 
to make plans.

My roster affects me by having to continuously monitor changes to an agreed permanent roster 
by my organisation, thus causing anxiety and stress as management do not honour their 
agreement with me.’87

[119] Ai Group challenges proposed finding (b) but beyond its general submission does not 
particularise the basis of its objection.

[120] ABI submits that the findings proposed are:

‘rather general in nature, and there appears to be limited material in the Report upon which 
findings can be made about how much notice is given to workers where shift changes occur. 
For example, there does not appear to have been any specific question in the survey about 
shifts changing at short notice, or on less than 7 days’ notice. Rather, the relevant statement 
upon which comment was sought appeared to be ‘My shifts can change unexpectedly’.88

                                               

87 Ibid.
88 ABI Submission, 10 August 2020 at para 21.

49%
46%

62%

20%

50%

27%
31%

37%

30% 29%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Permanent/ongoing Fixed-term contract Casual Self-employed All

I worry about rosters I am often called in to work at inconvenient times






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[121] We acknowledge that proposed finding (b) is a direct quote from the Executive 
Summary in the May 2020 Cortis Report (at page 7). But this proposition appears to be based 
on an observation by 1 worker in a community setting (see page 30 of the May 2020 Cortis 
Report). This does not provide a reasonable foundation for the finding sought.

[122] Figure 3.3 summarises the survey responses to the proposition that ‘My shifts can 
change unexpectedly’. Figure 3.3 is reproduced below.

[123] Based on the data set out in Figure 3.3 we are prepared to find that many of the 
workers surveyed reported instability in their paid work hours, including changes in shift 
times which workers were advised of at short notice. 

Additional Employer material

[124] In accordance with item 2(ii) of the Directions issued on 10 July 2020 (see [41]above), 
the employer parties filed the following additional material, which are said to be updated 
versions of material already filed in the proceedings:

 ABI (StewartBrown – Aged Care Financial Performance Survey, Aged Care Sector 
Report, Six Months ended 31 December 2019; and StewartBrown – Aged Care 
Financial Performance Survey, Sector Report, Nine months ended 31 March 2020) 
(the StewartBrown December 2019 and 31 March 2020 Reports)

 NDS (NDS Workforce Census – Summary of the December 2019 results (NDS 
Workforce Census).

[125] No party objected to the reports filed by ABI and NDS being admitted into evidence. 


Figure 3.3 Agreement with the statement 'My shifts can change unexpectedly', by setting 100% 24% 27% Disagree / 38% 32% Strongly 80% 41% 39% disagree 11% 15% 60% Neutral 16% 22% 18% 17% 40% · Agree / 65% Strongly 58% agree 20% 46% 46% 41% 45% 0% Home-based Community and Coordination, Mental and Supported All (n=1925) care and day program employment, allied health accommodation support settings settings advocacy and settings (n=422) (n=695) (n=203) peaks (n=100) (n=1495)




 

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[126] AFEI filed a report entitled ‘COAG Disability Reform Council NDIS Quarterly 
Report, 31 March 2020’. AFEI did not contend the report was an update of material 
previously filed. No party opposed the report being filed and admitted into evidence.

[127] The Unions made no submissions in reply to the material filed by the employers 
pursuant to item 2 of the Direction issued on 10 July 2020. We will admit the additional 
material into evidence, and we have taken it into account. 

[128] In relation to the report filed by AFEI – ‘COAG Disability Reform Council NDS 
Quarterly Report 31 March 2020’ – AFEI relied on that report to make good its submission 
that the survey respondents in the May 2020 Cortis Report are not representative of the NDIS 
workforce. No specific findings were sought by AFEI based on the 31 March 2020 COAG 
Report. 

[129] We propose to make some brief observations about the ABI and NDS material.

[130] In relation to the StewartBrown 31 December 2019 and 31 March 2020 Reports, ABI 
notes:

‘We are aware that these reports were filed in separate proceedings in the Commission relating 
to Pandemic Leave and that a statement of Mr Grant Corderoy, of StewartBrown was filed in 
those proceedings. That statement can be found here. We consider that the statement may be 
useful in these proceedings and also note that Mr Corderoy was cross-examined in relation to 
that statement in those proceedings which similarly could be of use to the Commission in these 
proceedings.’89

[131] The Transcript of Mr Corderoy’s cross-examination in the Pandemic Leave 
proceedings is available here. As we have mentioned the Unions did not file reply 
submissions and no objection was taken to the proposition that we consider Mr Corderoy’s 
statement90 and cross-examination; and we propose to do so.

[132] Mr Corderoy is the lead manager in relation to the StewartBrown survey. The survey 
is subscription based and designed for each participant organisation to compare and 
benchmark their operating performance at residential aged care homes and home care 
programs through a number of financial and non-financial measures.91

[133] In the Paid Pandemic Leave decision92 the Full Bench noted that the response rate to 
the survey is ‘above 43% of all residential aged care homes nationally and above 40% of all 
home care package programs’.93 In the course of his cross-examination in the Paid Pandemic 
Leave proceedings Mr Corderoy stated that 85% of survey providers are not-for-profit 
providers and 15% are for-profit providers.94

                                               

89 ABI Submission, 10 August 2020. 
90 See Exhibits 34 and 35 in AM2020/13.
91 Exhibit 34 in AM2020/13.
92 [2020] FWCFB 3561.
93 Ibid at [100].
94 AM2020/13, Transcript, 26 June 2020 at PN1444-PN1447.






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[134] ABI did not seek any specific findings based on the StewartBrown December 2019 
and 31 March 2020 Reports but did seek the following finding in respect of the home care 
sector, based on the earlier 2018 StewartBrown Report:

‘Reports show that while revenue has been increasing in the sector, the revenue levels of HCP 
providers are so low that they border on being unsustainable (taking into account the money 
providers are required to spend in relation to technology, staff recruitment, retention and 
growth).’95

[135] The finding sought by ABI is broadly expressed (e.g. the proposition that the revenue 
levels ‘border on being unsustainable’) and ABI has not identified the aspects of the 
StewartBrown survey results which are said to support the finding sought. Indeed, our review 
of the most recent report – the StewartBrown 31 March 2020 Report – reveals a more 
nuanced picture in respect of the in-home care sector and does not support the finding sought 
by ABI.

[136] In respect of home care packages, the StewartBrown 31 March 2020 Report reveals a 
decrease in revenue per client per day (the average for survey participants decreased by 
5.69%); but average operating profit per client increased due to reduced costs, particularly 
staff costs and resulting staffing hours.96

[137] The StewartBrown 31 March 2020 Report highlights the issues associated with 
unspent funds as the most significant issue facing the sector:

‘The biggest single issue in relation to Home Care Packages remains in relation to the level of 
Unspent Funds. This level has kept rising each quarter, and now averages $8,250 per client 
(care recipient). In aggregate, this represents in excess of $1 million of funding that is not 
being utilised.

This continued growth in Unspent Funds, and many probable instances of their use for capital-
related expenditure for care recipients (probably for a short-term benefit in many instances) is 
not sustainable. The recently announce changes to the subsidy payment arrangements (being 
in arrears rather than in advance) and the potential further reforms for providers to be 
reimbursed for actual services provided rather than for the funding package by care recipient 
will largely address the unspent funds concerns in this regard.

The cash flow implications to providers of the proposed reforms need to be considered and 
monitored. We understand that it is proposed that the current unspent funds will only be 
remitted back to the Government over a reasonable time period, and this should ease much of 
the initial cash flow concerns.

In-home care requires the redistribution of unused funds which are not being fully utilised in 
addition to the ongoing issue of more funding packages to meet consumer need. Service 
revenue must improve (driven by unit price increases) to ensure that staffing hours per care 
recipient also increase to meet the ongoing care needs.’97

                                               

95 ABI Submission, 19 November 2019 at para 2.25, citing StewartBrown – Aged Care Financial Performance Survey –
Sector Report – December 2018.

96 See StewartBrown – Aged Care Financial Performance Survey, Sector Report Nine Months ending 31 March 2020, pp 4, 

6, 28, Table 8 and Figure 24, p 29. 
97 Ibid, p 6.






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[138] It seems to us that the StewartBrown 31 March 2020 Report supports a finding that the 
issue of unspent funds and the externally imposed unit prices are the most significant 
challenges facing the in-home care sector.

[139] As to the NDS Workforce Census, the updated data confirms the general 
characteristics of the workforce in relation to the significant incidence of casual and part-time 
employment:

‘There appears to be a small but significant trend towards permanent employment and away 
from casual employment, particularly in the states where NDIS has had the longest history and 
is relatively mature.

There has been a clear shift towards permanent employment in this six-month period. 
At 60% engaged permanently overall, the permanently engaged workforce is at its 
highest level since data collection started in 2015. 

The shift was particularly noticeable in workforces in New South Wales and Victoria,
where the early roll out of the NDIS means that demand for services has had time to 
settle. By contrast the proportion of permanent roles fell in Queensland, Tasmania and 
Western Australia.

There is also an increase in average hours of work per week per worker, although the trend is 
not consistent across states.’98

[140] We accept NDS’ characterisation of the NDS Workforce Census document.

3.2 THE MUURLINK REPORT

[141] The ASU sought to rely on a report prepared by Dr Olav Muurlink, titled 
‘Predictability and control in working schedules’ (the Muurlink Report).99 The circumstances 
in which the Muurlink Report is before us are a little unusual.  No witness statement was filed 
and Dr Muurlink did not give evidence in these proceedings. 

[142] Dr Muurlink’s report was filed in the Part-time and Casual Employment Common 
Issue Proceedings on 14 July 2016.  The ASU relies on it in these proceedings pursuant to 
Item 4 of an Aide Memoire dated 22 December 2015.  The Aide Memoire permitted the 
parties to the review of the SCHADS Award to rely on any material filed in the Part-time and 
Casual Employment Common Issue Proceedings that is relevant to the SCHADS Award in 
support of variations to be pursued in the SCHADS Award proceedings.

[143] ABI tendered and relied on the cross-examination of Dr Muurlink on 15 July 2016 in 
the Part-time and Casual Employment Common Issue Proceedings.100

[144] The Muurlink Report is essentially a literature review of scholarly work on 
‘unpredictable patterns of work and the effect of a roster on workers’ well-being’ and ‘on the 

                                               

98 NDS Workforce Census – Summary of the December 2019 Results, pp 1 - 2.
99 CB1686-1724.
100 Exhibit ABI10.








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impact of lack of control over patterns of work on workers’ well-being’ with an emphasis on 
material that is specific to the types of workers covered by several health care sector Awards, 
including the SCHADS Award.101

[145] In his evidence in chief in the Part-time and Casual Employment Common Issue
Proceedings Dr Muurlink summarised his conclusions:

‘Unpredictable and variable work conditions probably impact on human health with a 
psychological or physical in two ways which are connected but can be distinguished 
experimentally.  So these two characteristics are the issue of control, sense of control and 
actual control, and the issue of change and variability. You can have control with low change 
in variability and these two can – they’re generally co-variant but they can be separated out.  
They have very significant impacts on human health, both psychological and physical.’102

[146] The ASU relies on the Muurlink Report in respect of its claims for a broken shift 
penalty rate, paid travel time, and recall to work away from the workplace/remote response.103

[147] The ASU also sought to rely on the Muurlink Report in respect of its responses to the 
ABI claims104 in relation to roster variations,105 and client cancellation.106

[148] The ASU submitted we should make the following findings based on, among other 
things, the Muurlink Report:

1. Work in disability services is becoming increasingly precarious.107

2. Breaking shifts causes significant negative impacts on employees’ health and well-
being.108

3. Employees in the social and community sector are regularly recalled to work overtime 
without returning to a workplace (i.e. their employer’s premises or a client’s home). 
This work is conducted by use of electronic means of communication (telephones, 
laptop computers, etc.).109

[149] Similarly, the HSU submitted:

‘In his review of the literature, Dr Muurlink explains how the unpredictable nature of work (a 
reality for both casual and part-time workers under this Award) has clear implications for the 
ability of workers to maintain work-life balance110. Where work has a regular and predictable 
“beat”, the worker may synchronise their health behaviours with work; for example, establish 

                                               

101 Muurlink Report, at para 1.0.
102 AM2014/196 and AM2014/197, Transcript, 15 July 2016 at PN6345.
103 ASU Submission, 23 March 2020.
104 ASU Submission, 23 March 2020.
105 ASU Submission, 19 November 2019 at paras 103 - 112.
106 ASU Submission, 19 November 2019 at paras 113 - 121.
107 ASU Submission, 19 November 2019 at paras 9 - 16.
108 ASU Submission, 19 November 2019 at paras 65 - 74.
109 ASU Submission, 19 November 2019 at paras 90 - 102.
110 Muurlink Report, CB1689-1690.






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regular family meal times or exercise routines and schedule doctors’ appointments or other 
self-care activities. Unpredictability of work presents challenges to health, both: 

a. structural challenges (the reduced ability to engage in positive health behaviours or 
reduced access to services); and 

b. physical and psychological challenges (the reduced sense of control, and reduced 
rhythmicity/increased change). 

The latter category of challenges, whilst less tangible, are no less significant. A worker’s sense 
of control is one of the most critical psychological variables in determining health responses to 
stressors such as work conditions.111 In a study of a large Hungarian dataset, a perceived 
absence of control at work was the second strongest work-related predictor of premature death 
from cardio-vascular disease and the most powerful predictor of female ischaemic heart 
disease mortality. Dr Muurlink notes the same author reports a connection between sense of 
control and well-being.112 Similar findings appeared in an Australian study of nurses,113 a 
group of workers with obvious parallels to the workers covered by the Award.

A further relevant observation in Dr Muurlink’s review is the potential for a compounding 
adverse impact when an absence of job security/underemployment is combined with irregular 
work.114

The above features represent a real problem for the attraction and retention of appropriately 
skilled workers to the industry.’115

[150] ABI submits that in circumstances where Dr Muurlink was not a witness in the 
proceedings, the Commission should not readily make findings based solely on his literature 
review.116  ABI made the following observations about the Muurlink Report:117

1. The Report is generic in nature rather than involving any specific analysis of 
the SCHADS industry.

2. Most of the Report relates to studies and data from jurisdictions outside of 
Australia.

3. The transcript of cross-examination demonstrates that the Report 
mischaracterised or exaggerated the findings of certain studies or data. 
Notably, Dr Muurlink also seemed to ‘cherry pick’ certain studies that seemed 
to ‘fit his thesis’, while overlooking or paying scant regard to better, larger, 
more statistically sound studies where the findings of such studies did not fit 
his narrative.

                                               

111 Muurlink Report, CB1691.  
112 Muurlink Report, CB1692.  
113 Muurlink Report, CB1693.  
114 Muurlink Report, CB1694.
115 HSU Submission, 18 November 2019 at paras 23 - 26.
116 ABI Submission, 10 February 2020 at para 32.
117 ABI Submission, 10 February 2020 at para 31.






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[151] Similarly, Ai Group submit the Muurlink Report can be afforded little weight because 
it is a review of scholarly work that concerns workforces in a range of nations across several
industries and regulatory schemes.118 Ai Group submits that Dr Muurlink made the following 
concessions during his cross-examination in the Part-time and Casual Employment Common 
Issue Proceedings:119

1. The Report does not include any consideration of the reasons for the asserted 
trend towards ‘greater variety’ in working patterns. To that extent, it does not 
consider countervailing considerations such as operational requirements that 
cause employers to schedule work in a way that results in greater variety in 
working patterns.120

2. The Report does not include a consideration of the industrial context in which 
the claims being considered were advanced, including the Award.121

3. Several of the studies relied upon relate to other industries.122

4. Some of the studies relied upon concerned specific circumstances such as work 
performed on weekends,123 fathers working more than 40 hours a week124 and 
shiftwork.125

5. The vast majority of the studies relied upon are international studies; 
particularly concerning Scandinavia.126

6. The industrial conditions prevailing in those countries are ‘potentially’ and 
relevantly different.127

7. The unemployment rate in those countries may affect an employee’s sense or 
perception of their control in a workplace.128

[152] Ai Group submits the above concessions undermine the relevance of the Muurlink 
Report and further, it is unclear if the Muurlink Report concerns the work covered by the 
SCHADS Award or the regulatory scheme that it operates under.129

                                               

118 Ai Group Submission, 10 February 2020 at paras 122 - 123.
119 Ai Group Submission, 10 February 2020 at para 123.
120 AM2014/196 and AM2014/197, Transcript, 15 July 2016 at PN6363.
121 Ibid at PN648 – PN6452. 
122 Ibid at PN6370.
123 Ibid at PN6391, PN6400.
124 Ibid at PN6420.
125 Ibid at PN6428.
126 Ibid at PN6374.
127 Ibid at PN6379.
128 Ibid at PN6386.
129 Ai Group Submission, 10 February 2020 at para 124.






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[153] In a joint submission dated 26 February 2020, the Unions submit the Muurlink Report 
is probative and should be given ‘significant weight’ by the Commission.130

[154] There is considerable force in the ABI and Ai Group critique of the Muurlink Report.  
In the Report, Dr Muurlink proffers several opinions based on a review of the relevant 
literature.  In the course of his cross-examination in the Part-time and Casual Employment 
Common Issue Proceedings Dr Muurlink acknowledged that of the 120 or so papers and 
studies reviewed, the ‘vast bulk’ were international, particularly Scandinavian, studies and 
that there was a disproportionate focus on the health and care sector, biased heavily towards 
the top end of the sector (e.g. doctors, surgeons etc).131  Dr Muurlink also acknowledged that 
he didn’t know much about the NDIS,132 had not looked at the SCHADS Award133 and did 
not consider the relevant industrial relations context in his review of the literature.134  
However, contrary to ABI’s submission, we would not go so far as to suggest that Dr 
Muurlink had ‘cherry picked’ the studies to ‘fit his thesis’.

[155] While the direct relevance of the Muurlink Report to the claims before us is somewhat 
limited, we accept the general proposition that working irregular or unsystematic hours can 
have a negative effect on physical and psychological health.  We also accept, again as a 
general proposition, that a worker’s sense of control at work is connected to worker well-
being.  

[156] Beyond these general propositions we are not persuaded that the Muurlink Report 
provides a sufficiently cogent base for the various other findings proposed by the ASU and 
HSU.  Two examples illustrate this point.  Two of the findings sought by the ASU, based on 
the Muurlink Report, are:

1. Breaking shifts causes significant negative impacts on employees’ health and 
well-being.

2. Employees in the social and community sector are regularly recalled to work 
overtime without returning to a workplace (i.e. their employer’s premises or a 
client’s home). This work is carried out by use of electronic means of 
communication (telephones, laptop computers, etc.).

[157] In our view these proposed findings draw little or no support from the Muurlink 
Report.  The Muurlink Report makes no mention of broken shifts, nor does it canvass the 
extent to which employees in the social and community sector are recalled to work overtime 
without returning to the workplace. 

3.3 THE STANFORD REPORT

                                               

130 Joint Union Submission, 26 February 2020 at para 181.
131 AM2014/196 and AM2014/197, Transcript, 15 July 2016 at PN6461, PN6374.
132 Ibid at PN6367.
133 Ibid at PN6452.
134 Ibid at PN6386.






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[158] The ASU tendered an expert report by Dr James Stanford135 (the Stanford Report), the 
purpose of which was to provide an expert opinion concerning 4 questions:

1. What training, skills and qualifications are required in the disability sector?

2. What is the connection between the terms and conditions of the SCHADS 
Award, including broken shifts and unpaid travel time and the disability 
sectors’ ability to attract a sufficient number of appropriately skilled workers? 

3. Is the disability sector able to attract a sufficient number of appropriately 
skilled workers? 

4. Are there any implications for quality of care?

[159] The opinions expressed in the Stanford Report are said to be ‘based primarily’ on 2 
research projects. The first research project involved qualitative interviews with 19 ‘frontline’ 
disability support workers working in the Hunter region of New South Wales (NSW), and the 
second was an investigation into ‘the intensifying skills and training requirements faced by 
the disability services workforce as the sector increases its overall activity to meet the 
operational targets of the NDIS’.136  Dr Stanford’s opinions are also said to be based on his 
‘own further exploration of the prescribed literature, official statistical data and government 
policy documents’, which are listed in the bibliography at pages 35 – 39 of the Stanford 
Report.137

[160] On 16 October 2019 Ai Group filed objections to aspects of Dr Stanford’s evidence.  
These objections were the subject of oral argument on 17 October 2019, shortly before Dr 
Stanford’s oral evidence.138  Arising from discussions between Ai Group and the ASU, 
various parts of the Stanford Report were ‘not read’, namely:

 the final sentence of [12]

 the second and final sentences of [55]

 the first sentence of [59]

 [72](c), and

 the first and second sentences of [77].139

[161] In its final submission of 18 November 2019, Ai Group identified 10 specific 
objections to aspects of the Stanford Report.140 The submissions in support of those objections 
are set out at [52] – [60] of the Ai Group submission.  In addition to the matters identified in 

                                               

135 Exhibit ASU4 – Stanford Report, September 2019.
136 Exhibit ASU4 – Stanford Report, September 2019, p 5.
137 Exhibit ASU4 – Stanford Report, September 2019 at para 6, p 5. 
138 See Transcript, 17 October 2019 at PN2084-PN2209.
139 Ibid at PN2148-PN2151.
140 Ai Group Submission, 18 November 2019, Attachment B, p 6.






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Attachment B to its final submission, Ai Group objected to [56] – [57] of the Stanford Report, 
which states: 

‘56. Finally, and perhaps most importantly, the Award presently does not specify 
minimum standards of practice regarding compensation for workers in work-related travel. … 
Allowing employers free-reign to organise work in such a fragmented, inefficient and unfair 
manner will only further degrade effective conditions and compensation in the sector, and 
clearly exacerbate the challenges of recruitment and retention.

57. … From the employer’s perspective, there is little if any incentive to avoid scheduling 
work in small, discontinuous blocks (motivated, presumably, by the fragmented and 
unpredictable nature of demand from clients), nor to geographically plan the assignment of 
appointments to minimise travel…’ (emphasis added)

[162] As to the above extract, Ai Group contends that any assertion that employers have 
‘free reign’ to organise work ignores the various constraints imposed by the SCHADS Award 
on an employer’s discretion to roster employees’ hours of work and ignores the client-focused 
operation of the NDIS. Ai Group submits that the various limitations make self-evident that 
an employer does not have ‘free reign’ over the way they roster work. It further submits that 
Dr Stanford’s opinion in this regard should not be given any weight and that it is directly 
inconsistent with evidence by certain employers that they endeavour to prepare rosters in a 
way that maximises their employees’ working time and/or minimises the time their employees 
spend travelling to and from their clients.141

[163] We note that there is some inconsistency between the position advanced by Ai Group 
during oral argument on 17 October 2019 and its submission of 18 November 2019.  
Specifically, during oral argument Ai Group did not press its objection to paragraph 69 of the 
Stanford Report,142 but later advanced the same objection in its final written submissions.143

[164] ABI and AFEI agreed with Ai Group’s submissions regarding Dr Stanford’s evidence. 

[165] NDS submit that Ai Group’s submission regarding Dr Stanford’s opinion is, in part, 
overstated: 

‘(a) An underlying concern for Ai Group appears to relate to the qualitative nature of Dr 
Stanford’s research. In our view the approach taken in the research is valid and well 
supported in academic literature. The issues raised by Ai Group regarding the 
anonymity of interviewees in Dr Stanford’s research raises the bar required too high 
for determining whether the results of such research are reliable. Furthermore, the 
general findings align with other witness and documentary evidence in these 
proceedings. 

(b) However, NDS agrees with Ai Group’s criticism at (10) and (11) of Dr Stanford’s 
conclusions that employers have “free reign” or that employers ignore efficiency in 

                                               

141 Transcript, 17 October 2019 at PN2039, PN2057–PN2059, PN2070, PN2616 and PN2619; Transcript, 18 October 2019 at 
PN2879, PN2885, PN3141–PN3142 and PN3534. 

142 Transcript, 17 October 2019 at PN2143.
143 Ai Group Submission, 18 November 2019, Attachment B, Item 9, p 6.  






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organising work as that part of his evidence overstates the situation and is in conflict 
with employer witness evidence in these proceedings.’144 (footnotes omitted)

[166] In Background Paper 1, several questions were posed in relation to Ai Group’s 
objections to Dr Stanford’s evidence.  We have had regard to those answers and the Joint 
Union Submission of 10 February 2020 which responds to Ai Group’s submissions. 

[167] Ai Group largely objects to Dr Stanford’s evidence because it is primarily based on the 
first research report, which involved qualitative interviews with 19 disability support workers 
working in the Hunter region in NSW. As Ai Group put it: 

‘The identity of the employees who were interviewed and their employers is not known…

Even if the transcripts of the interviews had been produced, the 19 employees were not called 
to give evidence in these proceedings and as a result, respondent parties did not have an 
opportunity to test the veracity or relevance of the information they provided during the course 
of the interviews relied upon…

In circumstances where the ASU does not assert the truthfulness of what the interviewees put 
during the interviews and its truthfulness has not, as a matter of fact, been established, the very 
basis for Dr Stanford’s opinion is substantially undermined.’145

[168] We agree with NDS’ response to the submission advanced by Ai Group. NDS submits 
that Ai Group overstates the deficiencies in the Stanford Report.  As NDS observes, the 
validity of qualitative research of the type upon which Dr Stanford based his opinion, is 
widely accepted. The Commission had regard to evidence of this nature in the Penalty Rates 
Case,146 in which the Full Bench observed:

‘Despite the limitations of qualitative research it can provide more detail and context to assist in 
gaining a deeper understanding about a particular issue.’147

[169] Qualitative research based on selected focus groups or interviews cannot usually be 
said to be representative of the views or experiences of all employees in the cohort from 
which the interviewees are drawn. 

[170] Contrary to Ai Group’s submission, the failure to call the individuals who participate 
in focus groups or interviews as part of a qualitative research project is not fatal to the validity 
of the resultant report.  Qualitative research often attempts to identify themes emerging from 
interviews with participants.  The validity of the conclusions expressed in such research can 
be challenged by calling for the records of the interviews in question. This was done in the 
Penalty Rates Case in respect of Dr Macdonald’s qualitative study.148  Ai Group could have 
taken this course of action in respect of Dr Stanford’s evidence, but chose not to do so.  

                                               

144 NDS Submission, 7 February 2020, p 8.
145 Ai Group Submission, 18 November 2019 at paras 53 – 55. 
146 Penalty Rates Case at [589] – [595], [609] and [1617]. 
147 Ibid at [1617]. 
148 Ibid at [595] – [609]. 






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[171] While Ai Group’s critique of the Stanford Report is somewhat overstated, it is evident 
to us that the Report has serious deficiencies.  As we have mentioned, the opinions expressed 
in the Stanford Report are said to be ‘based primarily’ on 2 research projects and the 
documents listed in the bibliography.  The basis of the opinions expressed in the Stanford 
Report appear unclear because of the conflation of the reference sources.  In a number of 
instances the opinions Dr Stanford expressed are not referenced to any source and the Report 
is silent as to the basis of a number of the expressed opinions.  

[172] A bare expression of opinion, absent any sufficient explanation of the basis of that 
opinion, is normally given little weight.  As observed in Davie v The Lord Provost, 
Magistrates and Councillors of the City of Edinburgh:149

‘the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally 
carry little weight, for it cannot be tested by cross-examination nor independently appraised, 
and the parties have invoked the decision of a judicial tribunal and not an oracular 
pronouncement by an expert.’150

[173] To the extent that the basis of a particular opinion in the Stanford Report is not made 
clear we propose to give the opinion very little weight.  We note that we took a similar 
approach in dealing with Union objections to aspects of the employer evidence.151

[174] Further, Dr Stanford’s reliance on the qualitative interviews of 19 disability support 
workers is problematic for 2 reasons.  

[175] First, the Stanford Report is silent as to the methodology employed in this study.  The 
qualitative study upon which Dr Stanford’s opinion is based is the subject of a report set out 
at Attachment E to the Stanford Report – ‘Precarity and Job Instability on the Frontlines of 
NDIS Support Work’ by Baines et al, September 2019, Centre for Future Work at the 
Australia Institute (the Baines Report).  The Baines Report provides some, albeit limited, 
insight into the approach adopted.  Research participants were apparently asked broad 
questions drawing on an ‘interview guide’. The guide was not produced. 

[176] The Baines Report says nothing about how the 19 participants were recruited.  It 
appears that the ASU had a role in selecting the interviewees, a point conceded by Dr 
Stanford during cross-examination: 

‘Mr Ferguson: And those 19 workers that were interviewed they were referred to the 
interviewers by the ASU, weren’t they?

Dr Stanford: In part.  We made some initial contacts with the ASU people and then we 
used what the qualitative research community calls a snowball sampling 
methodology where we use an initial group of contacts to try and identify 
other potential informants in the project.’152

                                               

149 [1953] SC 34 at [40] per Lord President Cooper. 
150 Also see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; 729-30[59]; [2001] NSWCA 305 at [59].  
151 Transcript, 17 October 2019 at PN1974.  
152 Transcript, 17 October 2019 at PN2228.  






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[177] Second, the Stanford Report fails to link the opinions expressed with answers given by 
the research participants.  We accept that it will not always be possible to link an opinion
derived from qualitative research to answers given by interviewees as such research can 
involve an iterative conversation and attempts to identify emerging themes.  But in this 
instance, there was simply no attempt to link any of the expressed opinions back to statements
by interviewees.

[178] For example, at [29] of his report Dr Stanford expresses the opinion:

‘The time spent in traveling to and from work under these split or broken shifts, and the often 
wasted time between these short periods of work, has the effect of greatly reducing the 
effective hourly income associated with this work…’

[179] Earlier in the same paragraph Dr Stanford observes that the issue concerning time 
spent traveling to and from work under split or broken shifts was one ‘of the most commonly-
expressed problems encountered in our qualitative research’.  But no reference is made to the 
number of interviewees who raised this issue nor to the concerns they expressed. 

[180] The Baines Report sets out the themes which emerged ‘most strongly from the 
qualitative data collected through the interviews’. The views expressed by interviewees 
regarding transportation (set out at pages 22 – 26 of the Baines Report) provide little support 
for the opinion expressed at [29] of the Stanford Report.  Most of the comments cited relate to 
clients not being provided with sufficient funds to cover transportation needs associated with 
activities and the use of workers’ private vehicles to transport clients.  There is no reference to 
‘wasted time’ between short periods of work, which Dr Stanford refers to in his report (at 
[29]).  Further, the issue of time spent travelling to and from work under split shifts receives 
little attention in the Baines Report; largely confined to the observation (at page 25) that:

‘Reimbursement for the workers’ time spent driving clients, or driving between different clients, 
was also reported to be inconsistent.’ (emphasis added).

[181] Perhaps the high point in this regard was the observation at [29] of the Stanford Report 
that ‘multiple interviewees reported the great difficulties of managing very unstable and 
unpredictable shift and roster schedules.’ (emphasis added). The Baines Report, however, 
does not indicate whether the ‘multiple interviewees’ who expressed the views summarised at 
paragraph 29 in the report constituted a majority of those interviewed or merely two of them. 
Further, the interviews apparently ranged in length for 15 minutes to 1.25 hours;153 however, 
the Baines Report, does not indicate if most interviews were short (say 15 – 20 minutes) or 
longer. It is conceivable that the opinions expressed by Dr Stanford were primarily based on 
the views expressed by 2 or 3 interviewees who were interviewed for 1.25 hours.  No 
explanation is provided for the variation in the length of the interviews conducted.  

[182] The ASU relies on several opinions expressed in the Stanford Report,154 in particular:

                                               

153 Exhibit ASU4 - Stanford Report, September 2019, Attachment E at p 11.  
154 See generally, ASU Submission, 2 October 2019.






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1. The characterisation of the disability services workforce as a low paid, highly 
casualised, female dominated workforce who work fragmented shifts with 
limited hours.

2. At [8] of the Stanford Report: 

‘The individualised, market-based system which the NDIS uses to deliver services to 
participating clients is creating a profound fragmentation and instability in the nature 
of delivered services. Demand for specific services fluctuates constantly due to 
changes in the number of clients, their approved budgets, their specific choices of 
services, and other factors… agencies are attempting to shift the resulting uncertainty 
and risk associated with fluctuations in demand and other causes of revenue 
fluctuations onto their employees, through the imposition of increasingly insecure and 
unstable employment relationships, rostering practices, and compensation.’

3. At [29] of the Stanford Report: 

‘two of the most commonly-expressed problems encountered in our qualitative research 
relate directly to the topics under consideration in this Four Yearly Review of the 
SCHDS industry Award. Multiple interviewees reported the great difficulties of 
managing very unstable and unpredictable shift and roster schedules, and balancing 
the demands of such unpredictable work with their other family and community 
responsibilities. The assignment of DSWs to work discontinuous shifts, often in 
diverse locations, greatly exacerbates the personal cost and stress of this instability in
work. The time spent in traveling to and from work under these split or broken shifts, 
and the often wasted time between these short periods of work, has the  effect of 
greatly reducing the effective hourly income associated with this work – as well as 
imposing considerable stress on the workers and their families.’ (emphasis added). 

4. At [54](a) and (c) of the Stanford Report:

‘(a) The SCHDS Award has permitted the growing use of casual labour, which 
now accounts for most employment in the sector (and virtually all new hires).  
Casual workers are not protected by many of the same basic provisions (for 
example, regarding stability in shift scheduling or entitlements to notice or 
termination or redundancy pay) as permanent workers.

…

(c) The Award also allows employers to assign “broken shifts” (with one or more 
uncompensated non-meal breaks within any 12-hour period), to both 
permanent and casual employees in disability services, with no penalty.  This 
also facilitates the fragmentation and disruption of normal work schedules, 
complicates the challenges facing disability service workers to maintain 
health work-life balance, and undermines their effective hourly compensation 
(since time between portions of broken shifts typically occurs at sub-optimal 
locations and times of the day, thus preventing workers from experiencing full 
“value” for their leisure time).’ 

5. At [56], [57] and [59] of the Stanford Report: 

‘…Given the fragmentation of work assignments under the NDIS, and the increasingly 
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multiple locations in the course of a day – work-related transportation is occupying a 
growing share of DSWs’ total time…. 

Note that the hyper-flexibility permitted by the SCHDS Award in shift scheduling, 
short assignments, broken shifts, and required but uncompensated travel time serves to 
eliminate the incentive or pressure on employers to try to organise work in the most 
efficient and stable manner. From the employer’s perspective, there is little if any 
incentive to avoid scheduling work in small, discontinuous blocks (motivated, 
presumably, by the fragmented and unpredictable nature of demand from clients), nor 
to geographically plan the assignment of appointments to minimise travel time.  When 
something is “free” (in this case, the disruption and uncompensated time of workers), 
it will not be treated with value and used efficiently.  The weakness of the SCHDS 
Award in addressing these problems of instability and unpredictability in working 
arrangements is thus clearly facilitating the further fragmentation and destabilisation 
of work in the sector.’

…

In my judgment the two proposed revisions to the SCHDS Award – to specify penalty 
wage rates in cases of split or broken shifts, and to require minimum payment at 
normal rates for work-required transportation services – are both well-justified 
responses to problems of work fragmentation and unfairness that were documented in 
our original research, and in other studies. They would represent small, partial but 
important steps in addressing the growing fragmentation of work in this sector: a trend 
that is undermining the quality of work life for DSWs, the quality of service for 
clients, and the fundamental economic efficiency of agencies and employers.’

[183] As to point 1, Dr Stanford’s characterisation of the disability services workforce is not 
referenced to a particular source; it is unclear what definition of ‘low paid’ underpins the 
proposition put. Further, the characterisation of the workforce as being ‘highly’ casualised is 
of little assistance.  The basis for the proposition that the workforce work fragmented shifts 
with limited hours, is unstated.

[184] Points 2 and 3 refer to opinions expressed in the Stanford Report for which no basis is 
sufficiently stated. 

[185] As to points 4 and 5, three observations may be made:

1. The basis for the opinions expressed is unstated.

2. The opinion expressed includes the propositions that the SCHADS Award 
permits ‘hyper flexibility’; has permitted the growing use of casual labour; and 
allows employers to assign ‘broken shifts’ with no penalty. These propositions 
involve an implicit expression of expert opinion about the proper construction 
of a domestic law (that is the SCHADS Award), which is impermissible.  
Further, it seems to us that the expressed opinion involves a degree of 
speculation as to the linkage between the terms of the SCHADS Award and the 
employment practices in a sector covered by the Award.  It is not legitimate for 
experts to guess or speculate.155

                                               

155 HG v The Queen (1999) 197 CLR 414 and R v Berry (2007) 17 VR 153 at [69]. 








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3. Dr Stanford’s opinion that 2 of the proposed Union variations to the SCHADS 
Award are ‘both well-justified responses to problems of work fragmentation 
and unfairness’ amounts to little more than a submission directed at the issue 
before us. 

[186] As to the last point, we would also observe that the lack of transparency regarding 
many of the opinions expressed in the Stanford Report, which is exacerbated by the conflation 
of the potential sources upon which the opinions are said to be based, creates an impression of 
an expert report that is little more than a submission, albeit a submission by a person with 
expertise.  In a moment of unguarded candour Dr Stanford describes his report as an ‘expert 
submission’; we agree with that characterisation.156  In summary, we have derived little 
assistance from the Stanford Report. 

3.4 THE MACDONALD ARTICLE

[187] The Unions sought to rely on a witness statement of Dr Fiona Macdonald, dated 15 
February 2019.157  Dr Macdonald’s statement is quite short; simply noting her research 
interests and appointments. Attachment FM-2 to Dr Macdonald’s witness statement is an 
article titled ‘Wage theft, underpayment and unpaid work in marketised social care’ by Dr 
Macdonald, Eleanor Bentham and Jenny Malone (the Macdonald article).158 The Unions (and 
Ai Group) advanced various proposed findings based upon the Macdonald article.  Dr 
Macdonald was not required for cross-examination. 

[188]    The Macdonald article reports on a research project undertaken into the paid and 
unpaid work time of disability support workers. The research project combined an analysis of 
working day diaries and qualitative semi-structured interviews and on analyses of interviews 
and working day diaries for 10 disability support workers who provide support and care under 
the NDIS.  The participants were recruited through advertisements, in newspapers and job 
websites through ‘snowballing’.159  

[189] The 10 participants’ paid work time was primarily spent in direct contact with clients, 
providing in-home assistance, personal care and/or support for community and social 
participation.160  Nine of the 10 participants were multiple job holders: 5 worked in 2 or 3 
different disability support work jobs. Other jobs included aged care and residential support. 
The main reason given for holding multiple jobs was that their main job provided insufficient 
income. In their main job, 7 of the participants were permanent part-time and 3 were casual 
employees. Part-time employees had contracts specifying minimum hours, although these 
minimums were as low as 2 hours a fortnight. 

                                               

156 Exhibit ASU4 - Stanford Report, September 2019, p 4. 
157 Exhibit HSU25 – Witness Statement of Fiona Macdonald, 15 February 2019.
158 Macdonald, F, Bentham, E and Malone, J, ‘Wage theft, underpayment and unpaid work in marketised social care’ The 

Economic and Labour Relations Review 2018, Vol. 29(1) 80–96 (‘Macdonald article’).
159 Macdonald article, p 85. 
160 Macdonald article, p 87. 






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[190] The HSU sought to rely on the Macdonald article in relation to the following claims: 
minimum engagement, broken shifts, travel time, overtime and client cancellation.161  The 
ASU and UWU both sought to rely on the Macdonald article in respect of their travel time 
claims.162 The UWU also sought to rely on the Macdonald article in respect of its broken shift 
claim.163

[191] The key ‘findings’ identified in the Macdonald article may be summarised as follows:

1. All participants had highly variable daily and weekly hours and all were 
regularly ‘expected’ to do additional work, often at very short notice. The 
diaries show that the workers’ days were typically made up of several 
relatively short paid work ‘shifts’ spent with support recipients, interspersed 
with often long periods of unpaid time. Over the 30 days, the 10 participants 
worked between one and five separate shifts per day. The shortest recorded 
shifts of paid work were around 30 minutes and the longest was over 10 hours. 
Most paid work periods were 2 hours or less. 

2. Only 2 of the participants (both employees of the same long-established and 
large service provider) were paid for time spent travelling between clients. 
However, seven (including those two), received a per-kilometre reimbursement 
for using their own cars when travelling between clients. The participants were 
reimbursed for using their cars to transport clients, if the distance was within 
the kilometre range specified in the client’s NDIS funding package.

3. All 10 workers undertook unpaid work either travelling between clients or 
unpaid overtime (administration and face-to-face support), or both, over the 3 
diarised days. For individual workers, the total amount of such unpaid work 
undertaken over the 3 days ranged from 22 minutes to over 6 and a quarter 
hours. For some, unpaid work time was equivalent to a third or more of paid 
work time in a single day and comprised up to 25% of the duration of the 
working day.

4. The workers’ working days (from first departure from home for work to last 
arrival home from work) were long. Two-thirds of the 30 diarised days were 
10 hours or longer. Though days were often very long, the proportion of the 
total working day that was paid work was often small. On 17 of the 30 work 
days, employees were paid for 5 or fewer hours’ work in the context of a long 
span of working hours. As an example: ‘one day in DSW 9’s diary showed that 
she left home at 8:45 am and finished her day 13.5 hours later, at 10:15 pm, 
having completed four shifts and earned only 5 hours’ pay. This pattern of paid 
work was not uncommon: the diaries showed that for each worker, on average 
over their 3 working days, paid work time was between 27 per cent and 73 per 
cent of the working day’.164

                                               

161 HSU Submission, 18 November 2019 at Attachment A; HSU Submission, 13 October 2019.
162 ASU Submission, 19 November 2019; UWU Submission, 18 November 2019, p 3.
163 UWU Submission, 18 November 2019, p 7.
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5. The organisation of disability support work often renders ‘free’ or ‘personal’ 
time as unusable time in a worker’s day. For example, workers spent time 
travelling back and forth from home to work in breaks between periods of paid 
work, and they often found themselves too far from home to make it 
worthwhile returning, so they simply waited somewhere near their next client’s 
home.

[192] ABI noted a number of what it characterised as ‘deficiencies with the qualitative data’
in the Macdonald article, namely:

 the sample size is confined to 10 employees who were all employed in the disability 
services sector

 the qualitative research is from 2016 and is limited to one geographical area, and

 the findings were based on an analysis of working diaries of only 30 days (3 diarised 
days for each of the 10 employees). 165

[193] Similarly, Ai Group submitted that ‘the weight that can be afforded to the article by Dr 
McDonald is negligible’. Ai Group argues that the article seeks to derive insights from the 
work diaries over a period of just 3 days of 10 disability support workers performing work 
under the NDIS in a single regional area and can not be seen as representative of all disability 
support workers. Ai Group also observes that the article is ‘somewhat dated’ given the 
research was undertaken in 2016 and there has been a range of changes to the NDIS funding 
arrangements since that time. Finally, Ai Group points to what it describes as a ‘further 
difficulty’ in that the article is based on the responses or diary entries of unnamed employees 
of unnamed employers. Ai Group argues that this material is in the nature of hearsay and that 
none of the employees were offered as witnesses:

‘Consequently, there is simply no way to test the veracity of any of the information they 
provided to the researchers. It would not have been possible to test this through cross 
examination of Dr Macdonald. The responses of the disability workers and the associated 
analysis in the article can be given little if any weight.’166

[194] Despite arguing that only ‘negligible’ weight be attributed to the Macdonald article 
Ai Group somewhat paradoxically sought to rely on the article in support of various 
propositions, in particular, that enhancing any existing obligation to provide payment for 
travel time:

‘might in some cases be a catalyst for an employer either not taking on certain clients/work or 
restructuring the way work is allocated… and may have unintended adverse consequences for 
the availability of work for employees’.167

[195] Ai Group also proposed a number of general findings, relying in part on the 
Macdonald article, namely:

                                               

165 ABI Submission, 10 February 2020 at para 111.
166 Ai Group Submission, 10 February 2020 at paras 27 - 32.
167 Ai Group Submission, 10 February 2020 at paras 28 – 29.






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1. It is common for employees to be employed by and to be performing work for 
more than one employer covered by the SCHADS Award.168

2. Some employees find personal satisfaction in undertaking work in the sectors 
covered by the SCHADS Award.169

3. Some full-time and part-time employees are required to work 30-minute 
engagements.170

4. The number of ‘breaks’ in a broken shift can vary from 1 – 5.171

5. Many employees are not paid for time spent travelling to and from clients.172

[196] The validity of qualitative research, such as that reported in the Macdonald article, is 
widely accepted, though results drawn from interviews and the work diaries of a relatively 
small group of participants cannot be said to be representative of the views or experiences of 
all employees in the cohort from which the interviewees are drawn. 

[197] Contrary to Ai Group’s contention, the validity of the conclusions expressed in such 
research can be challenged by calling for the records of interview and cross-examining the 
researcher. The employer parties chose not to take such a course in respect of Dr Macdonald’s 
evidence.

[198] The authors of the Macdonald article recognise the limitations of their research noting 
that:

‘The 10 DSWs cannot be seen as representative of all DSWs working under the NDIS. 
However, this study can provide valuable insights into some of the ways in which work is 
being organised under the NDIS and impacts on employees. Despite the small sample size, our 
interviews were approaching saturation (Morse, 1995), with issues raised in interviews highly 
consistent across the 10 participants. While there was considerable dissimilarity in paid and 
unpaid work patterns recorded in diaries, common issues and themes emerged from all 10 
workers’ diaries. The issues are also similar to those identified in recent surveys of DSWs and 
providers examining NSIS workforce issues (Cortis et al., 2017; NDS, 2016).’173

[199] Despite these limitations, research of the type presented in the Macdonald article 
provides a valuable insight into the working arrangements of disability support workers. We 
note that these findings are consistent with the evidence of other witnesses in these 
proceedings and we refer to that material in section 5 of this decision. 

[200] In our view the Macdonald article supports the following findings:

                                               

168 Ai Group Submission, 18 November 2019 at para 12 citing Macdonald article, p 87.
169 Ai Group Submission, 18 November 2019 at para 13 citing Macdonald article, p 87.
170 Ai Group Submission, 18 November 2019 at para 25 citing Macdonald article, p 88.
171 Ai Group Submission, 18 November 2019 at para 26 citing Macdonald article, p 88.
172 Ai Group Submission, 18 November 2019 at para 29 citing Macdonald article, p 87.
173 Macdonald article, p 85. 






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1. Disability support workers work variable daily and weekly hours.  Part-time 
employees in the disability services sector regularly work additional hours.174

2. It is not uncommon for employees to be employed by and to be performing 
work for more than one employer covered by the SCHADS Award.175

3. Some employees find personal satisfaction in undertaking work in the sectors 
covered by the SCHADS Award.176

4. Disability support workers can be engaged to work broken shifts over a 
significant span of hours that can include a substantial amount of ‘unpaid 
time’.177 The number of ‘breaks’ in a broken shift can vary from 1 – 5.178  

5. Some full-time and part-time employees are required to work 30-minute 
engagements.179

6. Employees covered by the SCHADS Award can be travelling to and from 
clients for significant periods of time without payment.180

7. Many employees are not paid for time spent travelling to and from clients181

8. The working arrangements of some disability support workers can result in a 
significant amount of ‘dead time’ for employees, that is, time spent travelling 
without payment or time spent waiting between broken shifts.182

9. Lengthy periods of time where the worker is engaged in the work of the 
employer but only paid for a few hours is a significant disutility for some 
employees, in circumstances where they find themselves too far from home to 
make returning worthwhile and so simply wait somewhere near their next 
client’s home.183

10. The gendered character of caring work has influenced the work practices 
referred to in the above findings.184

[201] As to finding 10, the ASU185 and HSU186 relied on the Macdonald article in support of 
a proposed finding that the gendered character of caring work has had an impact on work 
practices. The Unions rely on the following extract from the article:
                                               

174 Macdonald article, p 87.
175 Macdonald article, p 87. Also see Ai Group Submission, 18 November 2019 at para 12 citing Macdonald article, p 87.
176 Macdonald article, p 87. Also see Ai Group Submission, 18 November 2019 at para 13 citing Macdonald article, p 87.
177 Macdonald article, pp 88 - 93. Also see UWU Submission, 18 November 2019 at para 21, citing Macdonald article, pp 88 

and 93.  
178 Macdonald article, p 87. Also see Ai Group Submission, 18 November 2019 at para 26 citing Macdonald article, p 88.
179 Macdonald article, p 88. Also see Ai Group Submission, 18 November 2019 at para 25 citing Macdonald article, p 88.
180 Macdonald article, pp 88 – 91. Also see UWU Submission, 18 November 2019 at para 19, citing Macdonald article, p 88.  
181 Macdonald article, pp 88 – 91. Also see Ai Group Submission, 18 November 2019 at para 29 citing Macdonald article, p 

87.
182 Macdonald article, pp 86 - 88. Also see UWU Submission, 18 November 2019 at para 20, citing Macdonald article, p 88.  
183 Macdonald article, p 88.
184 Macdonald article, p 82 – 84, 93.
185 ASU Submission, 19 November 2019 at para 85.






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‘Non-payment of social care work is supported by the gendered legacy of care work as women’s 
work (Hayes, 2017; Palmer and Eveline, 2012). With care work continuing to be mainly 
performed unpaid by women in the family, it is often regarded as performed for altruistic 
reasons and as unskilled and not deserving of decent pay. These norms have a powerful role in 
social care, influencing employer strategies and also workers’ preparedness to perform unpaid 
work. Furthermore, much social care work is performed in not-for-profit agencies that have 
long traditions and strong norms of volunteering that contribute to pressures on workers 
(Baines et al., 2017).’’187

[202] Ai Group did not challenge the finding sought.188 ABI submitted that the passage in 
the MacDonald article is ‘vague and generalised’ and that: 

‘It is also unclear how the ASU contends the “gendered character of caring work” impacts 
“work practices”, or even what work practices are being referred to.189

[203] Contrary to ABI’s submission we think it is tolerably clear that the work practices 
being referred to are those which are the subject of the finding set out above. As to ‘how’ it is 
contended that the ‘gendered character of caring work’ impacts on work practices; the point 
made in the Macdonald article is plain – social care work is often regarded ‘as performed for 
altruistic reasons and as unskilled and not deserving of decent pay’ and these norms influence 
the work practices in the disability sector. We accept the validity of that observation.

[204] We note that the Unions sought several other findings based on the Macdonald article 
which we do not propose to make. These proposed findings either lack a relevant connection 
to the claims before us or were not supported by the evidence. Two examples serve to 
illustrate the approach we have taken.  

[205] First, the HSU sought a finding in the following terms:

‘The capacity for individualised and marketized care arrangements, which shift the location of 
care work from public organisational settings to private settings, to lead to underpayment of 
social care workers, has been observed in the United Kingdom by the Low Pay Commission. 
By defining “work” time as only the contact time between the worker and the client, minimum 
wage obligations are avoided. Comparable structural changes, practices and economic forces 
are at play in the Australian context, and the Award as currently drafted, facilitates the 
practices which give rise to underpayments.’190 (footnotes omitted)

[206] ABI challenged the proposed finding on the basis that:191

 the impact of any UK reforms is not relevant to the current matter before the 
Commission, and 

                                                                                                                                                  

186 HSU Submission, 18 November 2019 at para 32.
187 Macdonald article, pp 83 – 84.
188 Ai Group Submission, 11 March 2020, p 3.
189 ABI Submission, 11 March 2020 at para 30.
190 HSU Submission, 18 November 2019 at para 57.
191 ABI Submission, 26 February 2020, p 15.






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 there is not a sufficient evidentiary basis for this finding to be made.

[207] We agree with ABI and do not propose to make the finding sought. 

[208] Second, in a joint submission filed on 10 February 2020 the Unions submitted we 
should make the following findings based on the Macdonald article:

‘Broken shift claim:

(i) The individualisation and marketisation of social care in the United Kingdom resulted in 
the adoption of arrangements where workers are paid only for contact time and not for travel 
time, and short periods of paid time are interspersed with fragmented, variable and 
unpredictable periods of non-work time. As a consequence social care workers there at greater 
risk than other workers of not receiving the National Minimum Wages; and

(ii) Disability support workers may work between one and 5 separate “shifts” in the course of 
any day with “shifts” as short as 30 minutes long.’192

[209] The HSU relied on the following passage from the Macdonald article in support of the 
proposed finding:

‘work scheduling techniques that ‘drain waged-time from the working day’ and the devolution 
to workers of the risks of variable client demand result in fragmented, often varying and 
unpredictable work schedules: short periods of paid time (invariably face-to-face contact time 
with care recipients) are interspersed with other also fragmented, variable and unpredictable 
periods of unpaid ‘non-work’ time’ (McCann, 2016: 44–45; Rubery et al., 2015). So, workers 
have long days for little recompense, contributing to low pay’.193

[210] The Macdonald article does not provide a sufficiently cogent evidentiary basis for the 
proposed finding.

4 GENERAL FINDINGS ON THE EVIDENCE

[211] As noted in the September 2019 Decision,194 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. 

[212] We made a number of general findings in the September 2019 Decision and also made 
some observations about the relevance of the NDIS funding arrangements to the 
determination of the claims before us:195

‘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 

                                               

192 Joint Union Submission, 10 February 2020 at paras 222(a) and (e) referring to Macdonald article, pp 82 - 83 and 87.
193 Macdonald article, p 83.
194 September 2019 Decision at [48] – [75].
195 September 2019 Decision at [50] – [59], [124] – [143].






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greater ability to choose how care services are provided to them (including what, when, where, 
and by whom those services are provided).

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.

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).

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.

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.

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.

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.

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, 
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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.

Participants then typically enter into a service agreement with one or more service providers 
for the delivery of services outlined in their NDIS Plan.’

[213] We then went on to make the following observations about the NDIS:

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.196

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% 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’.197 Similarly, the HSU submits ‘The rollout targets have 
not been met and it can be expected that the rollout will continue well into 
2020’.198

3. According to the National Disability Insurance Authority (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; and

 the total number of registered providers was 20,208, of whom 57% (11,418) 
were ‘active’ as at 31 March 2019, meaning that they had claimed a payment 
from the NDIA for delivering a service. 45% of the total number of providers 
were individual/sole traders.199

4. The NDS (2019), Australian Disability Workforce Report of July 2018 notes 
that:

 48% of disability support workers are permanent (full-time or part-time) and 
46% are casual; and

 the trend towards casualisation is not universal across the sector and is more 
prevalent in small and medium organisations and absent in large 
organisations.200

                                               

196 Productivity Commission Study Report, October 2017, National Disability Insurance Scheme (NDIS) Costs, p 8.
197 NDS Submission, 17 May 2019 at para 35.
198 HSU Submission, 17 May 2019 at para 27.
199 HSU Submission, 17 May 2019 at para 28; AFEI Submission, 22 May 2019 at para 32.
200 NDS (2018) Australian Disability Workforce Report July 2018, p 6.






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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% in September 2015 to 45.2% in December 
2018 (but has remained at around 45% since September 2017, with the 
exception of the September 2018 quarter, at 47.3%).

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.’201

[214] In the September 2019 Decision we also considered the profile of employees in the 
social, community, home care and disability services industry, noting that it differs from the 
profile of employees in ‘all industries’ in 4 respects:202

 social, community, home care and disability services industry employees are 
predominately female (73.9%, compared with 50.0% of all employees)

 around half (50.3%) 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% of all employees

 around half (50.7%) of social, community, home care and disability services 
industry employees are aged 45 years and over, compared with 36.9% of all 
employees, and

 fewer than two-thirds (62.8%) of social, community, home care and disability 
services industry employees have completed Year 12 or equivalent, compared with 
68.1% of all employees.

[215] We also concluded that a proportion of employees covered by the SCHADS Award 
may be regarded as ‘low paid’ within the meaning of s.134(1)(a) of the Act.203

[216] In Background Paper 1, we asked the parties (among other things) whether any of the 
findings made in the Tranche 1 September 2019 Decision were challenged. We received 
submissions from the following parties: 

 NDS (7 February 2020)

 Ai Group (10 February 2020)

                                               

201 NDS Submission, 17 May 2019 at para 41.
202 September 2019 Decision at [26]. 
203 September 2019 Decision at [44] – [47].






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 ABI (10 February 2020)

 Joint Union (10 February 2020)

 AFEI (11 February 2020).

[217] Each of the parties proposed that we make some ‘general findings’. There is 
significant overlap in the general findings sought by the various employer parties. The 
findings we make below are primarily based on those proposed by ABI and NDS, taking into 
account the views expressed by other parties in respect of some of those proposed findings. 

[218] In our view the evidence supports the following general findings: 

The SCHADS Sector

1. The SCHADS Award covers employees across a range of sectors including 
social and community services, crisis assistance, disability services, home care 
and family day care.204

2. Many service providers in the SCHADS industry are not-for-profit 
organisations.

3. It is common for employees to be employed by and to be performing work for 
more than one employer covered by the SCHADS Award.205

4. The disability sector is characterised by a high level of part-time and casual 
employment.206

5. Employees providing disability services in clients’ homes perform a range of 
duties including assisting clients with showering, personal hygiene, meal 
preparation, taking medication, cleaning, laundry, taking them to public places 
such as shops or a café, other community engagement activities and taking 
them to medical appointments,207

Reform in the SCHADS Sector

6. There have been significant regulatory changes in the disability services and 
home care sectors over recent years. These have included:

                                               

204 FWC – Survey Analysis of the Social, Community, Home Care and Disability Services Industry Award 2010 (June 2019).
205 Exhibit HSU25 – Witness Statement of Fiona Macdonald, 15 February 2019, Attachment FM-2, p 87.
206 NDS, ‘Australian Disability Workforce Report’, February 2018, CB1828; Exhibit ASU4 – Stanford Report, September 

2019 at paras 16 - 18; Exhibit NDS1 – Witness Statement of David Moody, 12 July 2019 at paras 23 – 40.
207 See for example, Exhibit ASU10 – Witness Statement of Augustino Encabo, 13 February 2019 at paras 13 – 15; Exhibit 

ASU9 – Witness Statement of Richard Rathbone, 13 February 2019 at paras 12 – 13; Exhibit HSU27 – Witness 

Statement of Pamela Wilcock, 15 February 2019 at paras 8 – 9; Exhibit HSU4 – Witness Statement of Heather Waddell, 

15 February 2019 at para 4; Exhibit HSU28 – Witness Statement of Thelma Thames, 15 February 2019 at paras 4 – 5; 

Exhibit HSU29 – Witness Statement of Bernie Lobert, 15 February 2019 at para 8.






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(a) the introduction of the NDIS which has been progressively 
implemented throughout Australia from July 2013,208 and

(b) the introduction of reforms in the home care sector since around 
2012.209

7. A key feature of those regulatory changes was the transition from traditional 
‘block funding’ models to individualised funding arrangements underpinned by 
the principle of ‘consumer-directed care’.210

8. The principle of ‘consumer-directed care’ involves providing individual 
consumers with choice and control over what services are provided to them, 
when and where those services are provided, how those services are provided, 
and by whom those services are provided.211

9. Many clients have a preference for continuity of care in the sense that care is 
provided by the same employee or group of employees.212

10. These reforms have fundamentally changed the operating environment in the 
following ways:

(a) service providers now have less certainty in relation to revenue213

(b) service providers are experiencing greater volatility in demand for 
services,214 as consumers have a greater ability to terminate their service 
arrangements215

(c) there has been an increase in the number of service providers in the 
market216

(d) service providers are exposed to greater competition for business217

                                               

208 National Disability and Insurance Scheme Act 2013 (Cth). Also see ABI Submission, 5 April 2019 at paras 3.15 – 3.18; 
Ai Group Submission, 8 April 2019 at paras 83 – 87.

209 ABI Submission, 5 April 2019 at paras 3.7 – 3.14; See also the Aged Care Legislation Amendment (Increasing Consumer 
Choice) Act 2016 (Cth). 

210 Exhibit ASU4 – Stanford Report, September 2019 at para 24; Exhibit UV7 – Witness Statement of Melissa Coad, 16 

September 2019 at para 14.
211 See National Disability and Insurance Scheme Act 2013 (Cth), s.3(1)(e); Exhibit ABI2 – Witness Statement of Darren 

Mathewson, 12 July 2019 at para 48; Exhibit UV7 – Witness Statement of Melissa Coad, 16 September 2019 at para 16.
212 Transcript, 15 October 2019 at PN470-PN474, PN520-PN524; Transcript, 16 October 2019 at PN1554-PN1561.
213 Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at paras 22, 24; Exhibit ABI8 – Witness Statement of 

Wendy Mason, 17 July 2019 at para 37; Exhibit ASU4 – Stanford Report, September 2019 at para 8.
214 Exhibit ASU4 – Stanford Report, September 2019 at para 8: ‘Demand for specific services fluctuates constantly due to 

changes in the number of clients, their approved budgets, their specific choices of services, and other factors’.
215 Exhibit ABI7 – Witness Statement of Scott Harvey, 2 July 2019, Attachment A: ConnectAbility’s Service Agreement 

allows participants to cancel with four weeks’ notice.
216 NDS, ‘State of the Disability Sector Report 2018’, p 20, CB3385.
217 NDS, ‘Australian Disability Workforce Report’, February 2018, p 14, CB3329; Exhibit HSU25 – Witness Statement of 

Fiona Macdonald, 15 February 2019, Attachment FM-2, p 85.






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(e) service providers have reduced levels of control in relation to the delivery 
of services, as individual consumers have more control over the manner 
in which services are provided to them

(f) there is a greater fragmentation of working patterns,218 as the employer is 
now less able to organise the work in a manner that is most efficient to 
it,219 and

(g) greater choice and control for consumers has led to greater rostering 
challenges by reason of:

(i) an increase in cancellations by clients;220

(ii) an increase in requests for changes to services by consumers;221

and 

(iii) an increase in requests for services to be delivered by particular 
support workers,222

While the operating environment has changed, the work performed by 
employees in the sector has not fundamentally changed – they continue 
to provide similar services as in the past, albeit that the extent and scope 
of their work have expanded as a consequence of increased funding to 
the sector.

The NDIS

11. NDIS is a market based, individualised system223 designed to give participants 
more choice and control over their daily lives.224

12. The implementation of the NDIS is overseen by the NDIA which is an 
independent statutory agency. As part of its market stewardship role, the NDIA 
imposes price controls on some supports by limiting the prices that registered 
providers can charge for those supports and by specifying the circumstances in 

                                               

218 Exhibit ASU4 – Stanford Report, September 2019 at para 8: ‘The individualised, market-based system which the NDIS 
uses to deliver services to participating clients is creating a profound fragmentation and instability in the nature of 

delivered services’.
219 Exhibit ABI7 – Witness Statement of Scott Harvey, 2 July 2019 at para 28.
220 Exhibit ABI6 – Witness Statement of Deb Ryan, 12 July 2019 at para 41.
221 Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 at para 34.
222 Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 at para 42; Exhibit UV7 – Witness Statement of 

Melissa Coad, 16 September 2019 at para 26.
223 Exhibit ASU4 – Stanford Report, September 2019 at para 8; Exhibit HSU25 – Witness Statement of Fiona Macdonald, 15 

February 2019, Attachment FM-2, p 85; Natasha Cortis, ‘Working under the NDIS: Insights from a survey of employees 

in disability services’ (June 2017), section 1, CB3137; NDS Submission, 16 July 2019 at para 8.
224 Exhibit NDS1 – Witness Statement of David Moody, 12 July 2019 at paras 11 – 12.






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which registered providers can charge participants for supports.225 These prices 
are contained in the NDIS PB Support Catalogue 2019-20.226

13. The prices and rules contained in the Price Guide are monitored by the NDIA’s 
Pricing Reference Group.227  The prices are typically updated on an annual 
basis by way of an Annual Price Review.228  The Pricing Reference Group 
helps guide NDIS price regulation activities and decisions.229

14. The NDIA uses an Efficient Cost Model to:

(a) estimate the costs to disability service providers of employing disability 
support workers to deliver supports through the NDIS,230 and

(b) inform its pricing decisions in respect of the supports delivered by 
disability support workers on which it imposes price limits.231

15. The Efficient Cost Model purports to estimate the costs of delivering a billable 
hour of support taking into account ‘all of the costs’ associated with every 
billable hour.232

16. In relation to labour costs, the Efficient Cost Model uses the SCHADS Award 
as ‘the foundation’ of its assumptions and methodology.233  

17. The Efficient Cost Model does not contain any specific provision for, or does 
not account for, a range of actual or contingent costs proscribed by the 
SCHADS Award which are associated with delivering services.  These missing 
cost items include:234

(a) overtime

(b) redundancy pay

(c) paid compassionate leave

(d) paid community service leave (for jury service)

(e) the supply of uniforms or payment of a uniform allowance

                                               

225 NDIS Price Guide 2019-20, 1 October 2019, CB4321.
226 Exhibit ABI12 – NDIA Support Catalogue, 1 October 2019.
227 Media Release, ‘NDIS price increases for a sustainable and vibrant disability services market’, Minister for Families and 

Social Services and Assistant Minister for Social Services, Housing and Disability Services, 30 March 2019, CB2858.
228 Ibid, CB2859.
229 Ibid, CB2859.
230 NDIA, ‘National Disability Insurance Scheme: Efficient Cost Model for Disability Support Workers’, June 2019, CB494.
231 Ibid, CB493.
232 Ibid, CB494.
233 Ibid, CB494.
234 Ibid, CB489.








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(f) all other allowances payable under the Award, including:

(i) the laundry allowance

(ii) meal allowances

(iii) the first aid allowance

(iv) the motor vehicle kilometre reimbursement

(v) the telephone allowance

(vi) the heat allowance

(vii) the on-call allowance

(viii) the additional week's annual leave for shift workers, and

(ix) rest breaks during overtime.

18. Additionally, the Efficient Cost Model contains other assumptions that have 
the effect of further underestimating the true costs of service providers in 
delivering services under the NDIS. For example:

(a) the Efficient Cost Model does not account for payroll tax235

(b) the Efficient Cost Model does not account for over-Award payments 
under applicable enterprise agreements236

(c) the Efficient Cost Model assumes that 80% of the disability support 
workforce is permanently employed (which witness Mark Farthing 
described as ‘highly inaccurate’237), which results in the model 
underestimating the costs incurred by service providers where their 
workforce consists of casual employees at a rate of greater than 20% of 
the overall frontline workforce238

(d) the Efficient Cost Model assumes ‘utilisation rates’ (paid time that is 
billable compared to overall paid time) of between 87.7% and 92%,239

which does not provide sufficient allowance for essential non-billable 
tasks such as administration, handover, training, team meetings, and 
other non-chargeable tasks,240 and

                                               

235 Ibid, CB496.
236 Ibid, CB494.
237 Transcript, 15 October 2019 at PN897.
238 NDIA, ‘National Disability Insurance Scheme: Efficient Cost Model for Disability Support Workers’, June 2019, CB497; 

Transcript, 15 October 2019 at PN894-PN900.
239 NDIA, ‘National Disability Insurance Scheme: Efficient Cost Model for Disability Support Workers’, June 2019, CB498.
240 Natasha Cortis, ‘Working under the NDIS: Insights from a survey of employees in disability services’ (June 2017), 

CB3156-3157.






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(e) the Efficient Cost Model assumes that a support worker is employed in 
a particular classification for each type of support delivery, but in 
reality the employee delivering the support may actually be at a higher 
pay-point.241

19. The Efficient Cost Model assumes a margin on other costs of 2%.242

20. The NDIA has been aggressive in its price regulation activities in trying to set 
the absolute minimal cost to control the cost to government of the NDIS as a 
whole.243

21. Employers in the disability services sector have been under significant financial 
strain since the introduction of the NDIS.244  By way of example:

(a) there were considerable transitional issues with the rollout of the NDIA 
due to the size, speed and complexity of the reform245

(b) the cost of transitioning to the NDIS and interacting with new systems 
and processes added to providers’ cost bases and affected their financial 
position246

(c) the pricing model has had a negative effect on the sector247

(d) as at February 2018, while some providers had profitable operating 
models, many were struggling248

(e) in 2018 providers reported concerns that financial losses will lead to a 
market failure,249 and   

(f) providers held concerns in 2018 that they would not be able to continue 
providing services at the current prices.250

22. The implementation of the NDIS has led to an increased fragmentation of how 
work is performed.  While some disability support continues to be provided in 

                                               

241 NDIA, ‘National Disability Insurance Scheme: Efficient Cost Model for Disability Support Workers’, June 2019, CB494.
242 NDIA, ‘National Disability Insurance Scheme: Efficient Cost Model for Disability Support Workers’, June 2019, CB499.
243 Part-time and Casual Employment Case at [630].
244 Exhibit ASU4 – Stanford Report, September 2019 at para 24.
245 ‘National Disability Insurance Scheme (NDIS) Costs: Productivity Commission Position Paper’ June 2017, CB1976.
246 McKinsey & Company ‘Independent Pricing Review: National Disability Insurance Agency: Final Report’, February 

2018, CB1748. See also ‘National Disability Insurance Scheme (NDIS) Costs: Productivity Commission Study Report’, 

October 2017, CB3848-3851.
247 Productivity Commission Study Paper ‘National Disability Insurance Scheme (NDIS) Costs’, CB3759.
248 McKinsey & Company, ‘Independent Pricing Review: National Disability Insurance Agency: Final Report’, February 

2018, CB1729.
249 NDS, ‘State of the Disability Sector Report 2018’, p 20, CB3395.
250 NDS, ‘State of the Disability Sector Report 2018’, p 20, CB3395: ‘Fifty-eight per cent of disability service providers 

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settings such as group homes, an increasing amount of work is performed by 
individual workers in the homes of individual clients, or on an individual or 
small group basis in community settings.251

23. Employers are under greater market pressure than before to accommodate the 
needs and preferences of clients and this has a flow on effect to how work 
needs to be organised.252

24. The transition to the NDIS has been financially very challenging for some 
employers.253

The Home Care Sector

25. The home care sector is primarily funded by the Commonwealth Government. 
The Commonwealth Government controls the supply of services and packages, 
the levels of funding, the regulatory framework, the administrative 
infrastructure for payment of subsidies and consumer entry and navigation 
through the system.254

26. There are 3 main categories of service or packages in the home care sector. 
They are as follows:

The Commonwealth Home Support Program (CHSP)

(i) the CHSP commenced in 2015 and provides ongoing or short-term care 
and support services.255 The CHSP provides funding to a considerably 
large number of aged persons, however there is no data retained in 
relation to the demand for the program,256 and

(ii) the CHSP relies on grants for funding and, except for recent additional 
funds being provided to existing providers to increase their services, at 
no time recently has there been an open round for funding, funding has 
not been available on an annual basis and there is no clarity as to when 
funding will be released.257  

Home Care Packages (HCPs)

                                               

251 Exhibit NDS2 – Witness Statement of Steven Miller, 28 June 2019, paras 16 – 18.
252 For example, Transcript, 17 October 2019 at PN2249-2253.
253 Exhibit ASU4 – Stanford Report, September 2019 at para 24, 51, 53.
254 Exhibit ABI2 – Witness Statement of Darren Mathewson, 12 July 2019 at para 39.
255 Exhibit ABI2 – Witness Statement of Darren Mathewson, 12 July 2019 at para 36.
256 Exhibit ABI2 – Witness Statement of Darren Mathewson, 12 July 2019 at para 41: ‘In 2017-18, CHSP provided support to 

a total of 847,534 aged persons’.
257 Exhibit ABI2 – Witness Statement of Darren Mathewson, 12 July 2019 at paras 43 – 44.






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(i) HCPs were introduced in 2013 to replace several other programs. The 
introduction of HCPs also saw the introduction of consumer-directed 
care and individualised funding,258 and

(ii) CDC has seen a shift in the way that care is provided to participants 
and the model encourages greater choice on the part of the consumer. 
Following further reform in 2017, HCPs are now directly allocated to 
the person requiring the support rather than to providers and with their 
funding the participant then selects the provider they prefer,259 and

Veteran Programs

(i) Veterans’ Home Care (VHC) provide funding to certain eligible 
veterans who require assistance to continue to live independently. 
There is also a DVA Community Nursing Program to enhance the 
independence of veterans. While the programs hold similarities to the 
other home care programs, they are funded separately through 
Department of Veteran Affairs.260

27. There has been a decline in the overall performance of home care providers, 
which is reported as being attributable to increased competition ‘caused by the 
introduction of consumers being able to choose the provider from whom they 
receive their services’.261

28. The home care sector is experiencing changes similar to the NDIS because of
consumer-directed care.262

[219] We have taken these general findings into account in our consideration of the claims 
before us. 

[220] It is convenient to deal here with 2 final matters concerning our observations in the 
September 2019 Decision. 

[221] First at [75] of the September 2019 Decision we noted that: ‘No employer participant 
in the NDIS gave evidence in the proceedings regarding the financial impact of the claims 
before us’. 

[222] As ABI points out, that observation was correct at the time but there has since been 
evidence adduced during the Tranche 2 proceedings from several employer witnesses 
regarding the financial impact of various proposed claims. 

                                               

258 Exhibit UV7 – Witness Statement of Melissa Coad, 16 September 2019 at para 14.
259 Exhibit ABI2 – Witness Statement of Darren Mathewson, 12 July 2019 at para 48; Exhibit UV7 – Witness Statement of 

Melissa Coad, 16 September 2019 at para 25.
260 Exhibit ABI2 – Witness Statement of Darren Mathewson, 12 July 2019 at para 56.
261 Aged & Community Services Australia, ‘Seventh report on the Funding and Financing of the Aged Care Sector –

summation and commentary’, July 2019, CB457.
262 Exhibit ABI2 – Witness Statement of Darren Mathewson, 12 July 2019 at paras 61 – 69.








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[223] Second, at [123] – [143] of the September 2019 Decision we discussed the relevance 
of the government funding arrangement. 

[224] 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.’ (emphasis added)

[225] We concluded that the proposition advanced by Ai Group overstates the extent to 
which the NDIS funding arrangements are relevant to the determination of the clause before 
us. At [136] of the September 2019 Decision we said:

‘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.’

[226] At [138] – [143] we said: 

‘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.

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.

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.

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.

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 
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in many government funded sectors such differential treatment may have significant adverse 
gender pay equity consequences.

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.’

[227] Ai Group submits:

‘In our respectful submission, the reliance by employers in the sector on government funding is 
a key differentiating factor between employers covered by the Award and employers covered 
by many other awards. The result is that an increase in employment costs on employers 
covered by the Award may be more profound than employers covered by other awards who 
have a greater capacity to recover increased costs by, for example, increasing the fees for their 
goods or services. 

The intervention in the market by the NDIS places a serious limitation on an employer’s 
ability to withstand or absorb increased employment costs. That is, in our submission, a sound 
basis for differential treatment. To that extent, the finding at paragraph [142] of the decision is, 
respectfully, challenged by Ai Group.’263

[228] We do not propose to depart from our observations in the September 2019 Decision in 
respect of this issue.

5 WORKING ARRANGEMENTS

5.1 OVERVIEW

[229] This section deals with claims in relation to:

 minimum engagement (section 5.2)

 broken shifts (section 5.3)

 travel time (section 5.4)

 variations to rosters (section 5.5)

 remote response/recall to work (section 5.6), and

 client cancellations (section 5.7).

[230] The claims are inter-related and are to do with the scheduling of work in the SCHADS 
industry.

[231] We deal later with the detail of each claim. 

                                               

263 Ai Group Submission, 10 February 2020 at paras 108 – 109.






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[232] The following findings may be made about working arrangements generally in the 
SCHADS sector:

1. Short shifts or engagements are a very common feature in the home care and 
disability services sectors.264 Some employees are engaged for only 30 
minutes265 and in some instances for only 15 minutes.266

2. Broken shifts are commonly utilised by employers covered by the SCHADS 
Award and there is a very high incidence of broken shifts in the home care and
disability services sectors.267

3. The length of an engagement that forms part of a broken shift can vary from 15 
minutes to 7 hours268 and there is significant variation in the duration of the 
break period.

4. Most employees are not paid for time spent travelling to and from clients,269

(which includes travelling between clients270 and travelling to the first client 
and from the last client).271

                                               

264 Exhibit ASU4 – Stanford Report, September 2019 at para 11; Exhibit HSU3 – Witness Statement of William Elrick 
Statement, 14 February 2019 at para 19; Exhibit HSU28 – Witness Statement of Thelma Thames, 15 February 2019 at 

para 12; Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 35; Exhibit ABI6 – Witness 

Statement of Deborah Ryan, 12 July 2019 at para 64; Exhibit ABI9 – Witness Statement of Joyce Wang, 12 July 2019 at 

para 56; Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at para 41; Exhibit ABI8 – Witness 

Statement of Wendy Mason, 17 July 2019 at para 63.
265 Exhibit AIG1 – Staff Roster; Exhibit HSU25 – Witness Statement of Fiona Macdonald, 15 February 2019 at Annexure 

FM-2, p 88; Exhibit HSU3 – Witness Statement of William Elrick, 14 February 2019 at para 19; Exhibit HSU4 – Witness 

Statement of Heather Waddell, 15 February 2019 at paras 21 - 22; Exhibit HSU28 – Witness Statement of Thelma 

Thames, 15 February 2019 at para 12; Exhibit HSU31 – Witness Statement of Scott Quinn, 16 December 2019 at para 

20; Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at Annexure B; Exhibit ASU2 – Witness 

Statement of Robert Steiner, 15 October 2019 at para 15. 
266 Exhibit AIG1 – Staff Roster; Exhibit HSU29  – Witness Statement of Bernie Lobert at para 22; Exhibit UV1 – Witness 

Statement of Trish Stewart, 17 January 2019 at Annexure B.
267 Exhibit HSU26 – Witness Statement of Robert Sheehy, 15 February 2019 at para 7; Exhibit HSU5 – Witness Statement of 

Christopher Friend, 15 February 2019 at para 49; Exhibit HSU30 – Witness Statement of James Eddington, 15 February 

2019 at para 23; Exhibit ABI9 – Witness Statement of Joyce Wang, 12 July 2019 at paras 65 – 67; Exhibit ABI3 –

Witness Statement of Jeffrey Wright, 12 July 2019 at para 44; Exhibit ABI8 – Witness Statement of Wendy Mason, 17 

July 2019 at para 67; Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at paras 13 -15; Exhibit UV4 –
Witness Statement of Deon Fleming, 16 January 2019 at paras 18 - 21.

268 Exhibit HSU32 – Supplementary Witness Statement of Scott Quinn, 3 October 2019 at para 10; Exhibit UV4 - Witness 

Statement of Deon Fleming, 16 January 2019 at paras 19 and 21; Exhibit AIG1 – Staff Roster; Exhibit UV1 – Witness 

Statement of Trish Stewart, 17 January 2019 at para 12 and Annexure B; Exhibit HSU5 – Witness Statement of 

Christopher Friend, 15 February 2019 at para 47; Exhibit ASU2 – Witness Statement of Robert Steiner, 15 October 2019

at para 15; Transcript, 18 October 2019, cross-examination of Deborah Gaye Ryan at PN3047-PN3048 and PN3052.
269 Exhibit ASU9 – Witness Statement of Richard Rathbone, 13 February 2019 at para 17; Exhibit ASU7 – Witness 

Statement of Tracy Kinchin, 24 June 2019 at para 16; Exhibit HSU25 – Witness Statement of Fiona Macdonald, 15 

February 2019 at Annexure FM-2 at pp 87; Exhibit HSU5 – Witness Statement of Christopher Friend, 15 February 2019 

at para 47; Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019 at para 13; Exhibit HSU28 –

Witness Statement of Thelma Thames, 15 February 2019 at para 16; Exhibit HSU29  – Witness Statement of Bernie 

Lobert, 15 February 2019 at para 15; Exhibit HSU32 – Supplementary Witness Statement of Scott Quinn, 3 October 
2019 at para 10; Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at para 22; Exhibit UV1 – Witness 

Statement of Trish Stewart, 17 January 2019 at para 16; Exhibit UV2 – Supplementary Witness Statement of Trish 

Stewart, 1 April 2019 at para 6; Exhibit UV8 – Witness Statement of Jared Marks, 3 October 2019; Exhibit ASU2 –

Witness Statement of Robert Steiner, 15 October 2019 at para 14.






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5. The combination of unpaid travel time, broken shifts and short engagements 
can result in a significant amount of ‘dead time’ for employees, that is, time 
spent travelling without payment or time spent waiting between broken 
shifts.272

6. Employees report a range of adverse consequences with working broken shifts 
with short engagements and unpaid travel time, in particular:273

 they interfere with the employee’s time with family and friends, with their 
hobbies or with their involvement in the community

 broken shifts and short engagements mean a longer span of hours to make the 
same money they would make if they were rostered continuously. The span 
of hours may be 12 hours, but the employee is only paid for 4 to 5 hours 
work; this can be very tiring

 short engagements are not worth the time and cost involved

 home care employees can be required to travel significant distances, the 
travel time is unpaid, and it is uneconomical to work, and

 broken shifts can be ‘very disruptive’; an employee may ‘need to sit around 
for 2-3 hours waiting for a shift to start that only lasts for 15 minutes’. 

[233] In the next 3 sections of our decision (sections 5.2, 5.3 and 5.4) we set out our reasons 
for deciding to vary the SCHADS Award in the following ways:

1. To introduce a minimum engagement for part-time employees by deleting 
clause 10.4(c) and inserting a new clause 10.5 to provide the following 
minimum payment for part-time and casual employees:

                                                                                                                                                  

270 Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019 at para 13.
271 Exhibit HSU28 – Witness Statement of Thelma Thames, 15 February 2019 at para 16; Transcript, 17 October 2019, cross-

examination of Jeffrey Wright at PN2609-PN2611; Transcript, 18 October 2019, cross-examination of Graham Shanahan 

at PN2890. 
272 Exhibit UV3 - Further Witness Statement of Trish Stewart, 1 October 2019, at para 6; Exhibit UV4 – Witness Statement 

of Deon Fleming, 16 January 2019 at para 22; Exhibit HSU25 – Witness Statement of Fiona Macdonald, 15 February 

2019 at Annexure FM-2, p 88; Transcript, 17 October 2019, cross-examination of James Stanford at PN2274. 
273 Exhibit ASU10 – Witness Statement of Augustino Encabo, 13 February 2019 at para 32; Exhibit ASU9 – Witness 

Statement of Richard Rathbone, 13 February 2019 at para 16; Exhibit HSU29  – Witness Statement of Bernie Lobert, 15 

February 2019 at paras 13 – 15; Exhibit HSU5 – Witness Statement of Christopher Friend, 15 February 2019 at paras 44 

– 48 and 57 – 58; Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019 at paras 21 – 22 and 24 –

25; Exhibit HSU30 – Witness Statement of James Eddington, 15 February 2019 at paras 21 – 22, 30 – 32, 35, 37 – 38; 

Exhibit HSU26 – Witness Statement of Robert Sheehy, 15 February 2019 at paras 7 – 9; Exhibit HSU31 – Witness 
Statement of Scott Quinn, 3 October 2019 at paras 20, 27, 39, 40 – 43; Exhibit HSU3 – Witness Statement of William 

Elrick Statement, 14 February 2019 at paras 19 and 21 – 23; Exhibit UV4 – Witness Statement of Deon Fleming, 16 

January 2019 at paras 18 – 24; Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at paras 12 and 15 –

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 social and community service employees (except when undertaking disability 
work) – 3 hours’ pay, and

 all other employees – 2 hours’ pay.

2. To vary clause 25.6 to:

 define a broken shift as a shift consisting of 2 separate periods of work with a 
single unpaid ‘break’ (other than a meal break) 

 clarify how this interacts with the new minimum payment clause, and

 to accommodate the occasional need for a broken shift to involve more than 1
unpaid break subject to:

(i) a maximum of 2 ‘breaks’ in the shift

(ii) the agreement of the employee, and 

(iii) an additional payment.

[234] We also express the following provisional views: 

1. The additional remuneration for working a broken shift under clause 25.6 of 
the SCHADS Award should be an allowance calculated as a percentage of the 
standard weekly rate.

2. An employee working a ‘1 break’ broken shift under clause 25.6 should 
receive a broken shift allowance of 1.7% of the standard rate, per broken shift 
($17.10 per broken shift).

3. The broken shift allowance payable for a 2 break broken shift should be set at 
2.5% of the standard rate ($25.15 per broken shift).

4. An employee who is a day worker performing work outside of the ordinary 
span of hours (including as part of a period of work in a broken shift) is 
entitled to overtime for such work.

[235] In section 5.5 we express the view that there is merit in varying clause 25.5(d) to 
permit the variation of a roster by mutual agreement in circumstances where the variation is 
proposed by an employee to accommodate an agreed shift swap with another employee.

[236] In section 5.6 we note that there is broad support from most of the employer interests 
and the Unions for the introduction of a term in the SCHADS Award dealing with ‘remote 
response’ work, or work performed by employees outside of their normal working hours and 
away from their working location. 

[237] We agree that it is necessary to introduce an award term dealing with remote response 
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1. A shorter minimum payment should apply in circumstances where the 
employee is being paid an ‘on call’ allowance.

2. There is merit in ensuring that each discrete activity (such as a phone call) does 
not automatically trigger a separate minimum payment.

3. A definition of ‘remote response work’ or ‘remote response duties’ should be 
inserted into the Award. We note that ABI proposes the following definition:

‘In this award, remote response duties means the performance of the following 
activities: 

(a) Responding to phone calls, messages or emails; 

(b) Providing advice (“phone fixes”); 

(c) Arranging call out/rosters of other employees; and

(d) Remotely monitoring and/or addressing issues by remote telephone 
and/or computer access.’274

4. The clause should include a mechanism for ensuring that the time spent by an 
employee working remotely is recorded and communicated to their employer.

[238] We express the provisional view that the minimum payment for remote response work 
performed between 6.00am and 10.00pm should be 30 minutes and the minimum payment 
between 10.00pm and 6.00am should be 1 hour. However, we note that there is an inter-
relationship between the minimum payment period and the rate of payment.

[239] We also note that the rate of pay applicable to remote response work (as opposed to 
the minimum payment) is problematic.

[240] Finally, in section 5.7 we decide to vary the SCHADS Award in the manner proposed 
by ABI subject to 2 amendments:

(i) our provisional view that proposed clause 25.5(f)(v) be amended, and

(ii) amending clause 25.5(f)(vii)(B) to delete ‘3 months’ and insert ‘6 weeks’.

[241] We also note that ABI is to consider the ‘double dipping’ point.

5.2 MINIMUM ENGAGEMENT CLAIM

[242] Minimum engagement terms in modern awards specify the minimum time of each 
engagement or shift and hence the minimum payment to which an employee is entitled for 
each engagement or shift worked. The HSU seeks to amend the SCHADS Award to introduce 
a uniform minimum 3 hour engagement for all classes of employees.

                                               

274 ABI Submission, 10 February 2020 at p 58.






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[243] As an initial observation, we note that while this type of award clause is commonly 
described as a minimum engagement term, the existing SCHADS Award clause and our 
proposed clause operate as a minimum payment term, which requires employers to pay 
employees for the specified minimum number of hours in certain circumstances. However, 
given the nature of the parties’ proposals and submissions in this matter, for convenience the 
expression ‘minimum engagement’ (term or period) is generally used throughout this 
decision.

[244] It is convenient to deal first with the rationale for minimum engagement terms, 
relevant award history and some other general matters, before turning to the HSU’s claim.

5.2.1 The Rationale for Minimum Engagement Terms

[245] After a review of the relevant authorities the Part-time and Casual Employment Case
the Full Bench observed that the rationale for minimum engagement terms in modern awards 
was to ensure that:

‘the employee receives a sufficient amount of work, and income, for each attendance at the 
workplace to justify the expense and inconvenience associated with that attendance by way of 
transport time and cost, work clothing expenses, childcare expenses and the like. An 
employment arrangement may become exploitative if the income provided for the employee’s 
labour is, because of very short engagement periods, rendered negligible by the time and cost 
required to attend the employment. Minimum engagement periods are also important in respect 
of the incentives for persons to enter the labour market to take advantage of casual and part-
time employment opportunities (and thus engage the consideration in paragraph (c) of the 
modern awards objective in s.134.’275

[246] As we said in the Aged Care Substantive Claims Decision,276 the short point made in 
the relevant authorities is that minimum engagement terms protect employees from 
exploitation by ensuring that they receive a minimum payment for each attendance at their 
workplace to justify the cost and inconvenience of each such attendance.

[247] We also note the observation of the Casual and Part-time Employment Full Bench that 
there are a number of ‘important countervailing considerations’ that need to be considered in 
establishing award minimum engagement requirements, namely:277

 longer minimum engagement periods may prejudice those persons who wish to and 
can only work for short periods of time because of family, study or other 
commitments, or because they have a disability

 the need for and length of a minimum engagement period may vary from industry to 
industry, having regard to differences such as in rostering practices and whether 
there are broken shifts

                                               

275 Part-time and Casual Employment Case at [399].
276 Aged Care Substantive Claims Decision at [186].
277 Part-time and Casual Employment Case at [403].






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 an excessive minimum engagement period may cause employers to determine that it 
is not commercially viable to offer casual engagements or part-time work, which 
may prejudice those who desire or need such work, and

 a minimum daily engagement period for part-time employees might not need to be 
as long as for casual employees, because part-time employees are likely to enjoy the 
greater security of a guaranteed number of weekly hours of work.

[248] A number of the employer organisations drew our attention to these ‘countervailing 
considerations’ in support of their respective positions.

5.2.2 Award History

[249] The employer parties highlight 2 decisions in relation to the SCHADS Award which 
are said to support the submissions they advance. 

A Award modernisation

[250] The issue of minimum engagement periods did not receive any systematic 
consideration during the award modernisation process, which largely preserved the 
predominant provisions concerning minimum engagements contained in pre-reform 
awards.278 As explained by the Full Bench in Victorian Employers’ Chamber of Commerce 
and Industry:279

‘The Award Modernisation Full Bench of the Australian Industrial Relations Commission 
(AIRC) did not address the question of minimum engagements in any of its decisions and 
statements made in connection with the award modernisation process. This is because 
minimum engagements did not emerge as a significant issue during that process.’ 

[251] The issue of minimum engagement was given some, albeit limited, consideration in 
the award modernisation proceedings relating to the making of the SCHADS Award. 

[252] The Exposure Draft published by the Commission on 25 September 2009 contained a 
3 hour minimum engagement for casual employees, and no minimum engagement for the 
other categories of employment.280 A few of the employer parties then made submissions 
objecting to the proposed 3 hour minimum engagement, particularly in relation to the home 
care and disability sectors. The issue of minimum engagements for casual employees was also 
the subject of oral submissions during a Full Bench hearing on 5 November 2009, but no 
evidence was led in relation to the issue.

[253] In the decision to make the SCHADS Award the Award Modernisation Full Bench 
dealt with the minimum engagement provisions for casual employees, at [83] as follows: 

                                               

278 See generally Victorian Employers’ Chamber of Commerce and Industry [2012] FWAFB 6913.
279 [2012] FWAFB 6913 at [12].
280 See 10.4(c) of the Exposure Draft, published 25 September 2009.






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‘The minimum period of engagement for casuals has been altered to take into account the 
different sectors of this industry...’281

[254] In the present proceedings ABI and some of the other employer parties contended that 
the reasons which were advanced by employer parties during the award modernisation 
process, in support of short minimum engagement periods, remain relevant today, if not more 
so following the implementation of consumer-directed care reforms. ABI relies on the matters 
raised in those submissions and submits that there is no proper basis to depart from the 
conclusions reached by the Full Bench when the SCHADS Award was made.282

[255] In conducting the Review, the Commission takes account of previous decisions 
relevant to any contested issue. The extent of the evidence and submissions put in the 
previous proceedings are relevant in considering the weight to accord that decision. 

[256] Contrary to ABI’s submission we are not persuaded that the issue of minimum 
engagements received ‘considerable focus during the making of the Award’.283  No evidence 
was adduced in those proceedings and the Full Bench’s reasons for the decision are somewhat 
perfunctory and tend to suggest that the issue was not the subject of detailed consideration, 
much less a merits-based review.

B The Transitional Review

[257] The issue of minimum engagements for part-time employees was the subject of some 
consideration during the Transitional Review. 

[258] The Transitional Review commenced in early 2012. A previous Full Bench concluded 
that the Transitional Review was separate, and narrower in scope, than the 4 yearly review of 
modern awards:

‘To summarise, we reject the proposition that the [Transitional] Review involves a fresh 
assessment of modern awards unencumbered by previous Tribunal authority. It seems to us 
that the Review is intended to be narrower in scope than the 4 yearly reviews provided in s.156 
of the FW Act.’284

[259] In short, the Transitional Review was dealing with a system in transition, it was a ‘one 
off’ process required by the transitional provisions and conducted a relatively short time after 
the completion of the award modernisation process. The fact that the transition to modern 
awards was taking place at the time of the Transitional Review militated against the adoption 
of broad changes to modern awards as part of that review. 

[260] In the Transitional Review, the ASU sought the introduction of a 3 hour minimum 
engagement for part-time employees across all streams of the SCHADS Award, submitting 
that the absence of a minimum engagement period for part-time employees was at odds with 

                                               

281 [2009] AIRCFB 945. 
282 ABI Submission, 12 July 2019 at paras 6.27 - 6.28.
283 ABI Submission, 12 July 2019 at para 6.30.
284 Modern Awards Review 2012 [2012] FWAFB 5600 at [99].






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both the ‘critical mass’ of relevant pre-reform awards as well as the position provided for 
other employees under the SCHADS Award.

[261] Vice President Watson dismissed the application and relevantly held that: 

‘It is clear that in common with many other awards, the AIRC deliberately did not insert a 
minimum engagement period for part-timers in this award. It was obviously influenced by the 
variable position under predecessor awards. In my view the introduction of a minimum 
engagement period for part-time employees as part of this review would require a strong case 
that evaluated the impacts on employees and employers across the various sectors covered by 
the award. The application fails to meet this standard.’285

[262] While the Vice President rejected the application for minimum engagements for part-
time employees he did grant the ASU’s claim for the insertion of what is now clause 10.3(c) 
of the SCHADS Award. Clause 10.3(c) imposes an obligation on employers to agree with 
part-time employees in writing on an agreed pattern of work (including number of hours to be 
worked, the days on which work is to be performed, and the starting and finishing times on 
each day) which can then only be varied by written agreement. In granting that variation, the 
Vice President had regard to the absence of minimum engagement provisions as a factor 
leading to his decision: 

‘That part of the application seeking a requirement that part-time arrangements be agreed in 
writing prior to commencing employment is a common award provision. It requires employees 
to be given clear information as to the basis of their employment when they are engaged. I 
consider that the case for such a clause is strong, especially when there is no award minimum 
engagement period. In my view the concerns of the employers can be allayed by standard 
procedures that comply with the clause, such as those that have been developed for employers 
covered by similar provisions in other awards. I will make this change prospective to allow 
employers to prepare for the change. If significant practical problems emerge an appropriate 
variation can be sought. I will insert the clause sought by the ASU with effect from 1 August 
2013.’286 (emphasis added)

[263] ABI submits that it follows from the Vice President’s reasons that if a minimum 
engagement for part-time employees were to be inserted into the SCHADS Award because of
the present proceeding then the case for maintaining clause 10.3(c) is weakened, and should 
be reconsidered:

‘In our submission, any proposal to introduce a minimum engagement for part-time employees 
should not occur without a contemporaneous review and reconsideration of clause 10.3(c).’287

[264] We deal with this point later but note here that the context in which this decision was 
made reduces the weight we attach to it.

[265] Many of the applications made as part of the Transitional Review involved matters 
expressly dealt with by the Commission in the award modernisation process; the ASU’s 
application was a case in point. In those circumstances the need to advance probative 

                                               

285 Australian Municipal, Administrative, Clerical and Services Union [2013] FWC 4141 at [19].
286 Australian Municipal, Administrative, Clerical and Services Union [2013] FWC 4141 at [20].
287 ABI Submission, 12 July 2019 at para 6.40.






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evidence in support of an application to vary a modern award was particularly important as 
the Transitional Review did not involve a fresh assessment of modern awards unencumbered 
by previous Tribunal decisions. As a previous Full Bench has observed:

‘… the Tribunal is unlikely to revisit issues considered as part of the Part 10A award 
modernisation process unless there are cogent reasons for doing so, such as a significant 
change in circumstances which warrants a different outcome.’288

[266] The ASU’s Transitional Review application was not supported by probative evidence; 
it was little more than an attempt to revisit the Award Modernisation Full Bench’s 
consideration of the issue. The decision rejecting the ASU application is of little present 
relevance.  

C Part-time and Casual Employment Common Issue Proceedings

[267] Modern awards contain a range of different minimum engagement (payment) periods 
for casual and part-time employees. In the Part-time and Casual Employment Common Issue
Proceedings, the ACTU sought to replace the current disparate arrangements with a uniform 
standard of a 4 hour minimum engagement for all part-time and casual employees. The Part-
time and Casual Employment Full Bench rejected the ACTU claim, reasoning that:

‘[406] … while the evidence might call for the review of minimum engagement periods in 
some particular awards, it did not go so far as to demonstrate that any daily engagement of a 
casual or part-time employee below 4 hours was necessarily unfair and exploitative, which is 
what we think would be needed to justify the establishment of a 4 hour minimum engagement 
standard across all awards. Additionally we do not consider that a case has been made out for 
the daily minimum engagement of casual employees and part-time employees to be aligned in 
all cases, since in most modern awards part-time employment operates on the basis of a 
minimum weekly guarantee of hours, with the pattern of working hours established at the 
commencement of the employment and thereafter not able to be changed other than by 
agreement. For that reason, the circumstances of part-time employees are distinct in terms of 
income security from those of casual employees. 

[407] While a 4 hour minimum daily engagement might under some awards represent an 
appropriate balancing of the competing considerations to which have earlier referred, we do 
not consider that it can be adopted on the across-the-board basis proposed by the ACTU. That 
would not in all awards meet the modern awards objective in s.134, because we consider that 
it might have the counter-productive result of reducing workforce participation and social 
inclusion, and also because under some awards it may inhibit flexible modern work practices 
and the efficient and productive performance of work.’289

[268] However, the Full Bench did consider that it was necessary for modern awards to 
contain some form of minimum engagement period for casual employees ‘in order to avoid 
their exploitation in order to meet the modern awards objective’.290

[269] In its decision of 5 July 2017, the Part-time and Casual Employment Full Bench 
expressed the provisional view that 34 modern awards, which at that time contained no 

                                               

288 Modern Awards Review 2012 [2012] FWAFB 5600 at [99]. 
289 Part-time and Casual Employment Case at [406] – [407]. 
290 Part-time and Casual Employment Case at [408]. 






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minimum engagement period at all, should be varied to include a 2 hour minimum 
engagement period for casuals. Some 29 modern awards were ultimately varied to provide a 2 
hour minimum engagement period for casuals. 

[270] The Part-Time and Casual Employment Full Bench also dealt with a claim by ABI to 
vary the part-time employment provision in the SCHADS Award to allow greater flexibility 
in the way in which the hours of work for part-time employees are fixed. 

[271] ABI’s claim, in its final amended form, was for clause 10.3 to read as follows: 

‘10.3 Part-time employment

(a) A part-time employee is one who is engaged to work less than 38 hours per week or 
an average of less than 38 hours per week and who has reasonably predictable hours 
of work. 

(b) The terms of this award will apply to part-time employees on a pro rata basis on the 
basis that the ordinary weekly hours of work for full-time employees are 38. 

(c) Subject to clause 10.3(d), before commencing employment, the employer and the 
employee will agree in writing on the regular pattern of work including the number of 
hours to be worked each week, the days of the week the employee will work and the 
starting and finishing times each day. Any agreed variation to the regular pattern of 
work will be recorded in writing. 

(d) Despite anything else in this clause 10.3, an employer and an employee may agree not 
to fix the employee’s hours of work if the employee is engaged to provide supports to 
clients in circumstances where the client has discretion to vary when the support is 
provided. In these circumstances: 

(i) before commencing employment the employer and the employee will agree in 
writing on: 

(A) the number of hours to be worked each week (or the average number 
of hours); and 

(B) the days and/or times of the week that the employee is not available to 
work (if any); 

(ii) the employee’s hours will be set by the employer in accordance with clause 
25.5, save that the employee will not be required to work on those days or at 
those times referred to in clause 10.3(d)(i)(B). 

(iii) Any agreed variation to the employee’s availability or to the number of hours 
to be worked must be recorded in writing.’291

[272] ABI’s proposed variation, in its final iteration, was only directed at those aspects of 
disability services which were said to be subject to client control and thus where the employer 
had least control over the hours required to be worked. In respect of part-time employees in 
that area, ABI proposed an employment model whereby actual working hours were not 

                                               

291 Part-time and Casual Employment Case at [558].






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determined by agreement at the outset of the employment and were thereafter only alterable 
by agreement, but rather that the employer would have the ability to roster those hours in 
accordance with clause 25.5 subject to it providing an agreed guaranteed number of weekly 
hours and such working hours being rostered at periods when the employee had agreed to be 
available to work.

[273] ABI’s case was advanced on the basis that the circumstances attending the 
development and implementation of the NDIS meant that the current part-time employment 
provision in the SCHADS Award no longer met the modern awards objective and required 
alteration to do so. 

[274] ABI’s claim was opposed by the HSU, ASU and the UWU.

[275] ABI’s claim was rejected, but the Full Bench concluded that there was merit in 
clarifying that an agreed part-time work arrangement does not necessarily have to provide for 
the same guaranteed number of hours in each week.292 Clause 10 was subsequently amended 
to insert sub clause 10.3(d)293, which provides:

‘(d) The agreed regular pattern of work does not necessarily have to provide for the same 
guaranteed number of hours in each week.’ 

[276] The Casual and Part-time Employment Full Bench rejected ABI’s claim because it 
was not satisfied that the variation proposed was necessary to achieve the modern awards 
objective and, in particular, for the reasons set out at [636] – [641] of the decision of 5 July 
2017. The absence of any requirement for a part-time employee to be engaged for a minimum 
number of hours per week was one of the reasons given by the Full Bench for that conclusion: 

‘[559] ABI’s proposed variation, in its final iteration, was only directed at those aspects of 
disability service provision which were said to be subject to client control and thus where the 
employer had least control over the hours required to be worked. In respect of part-time 
employees in that area, its variation proposed an employment model whereby actual working 
hours were not determined by agreement at the outset of the employment and were thereafter 
only alterable by agreement, but rather that the employer would have the ability to roster those 
hours in accordance with clause 25.5 subject to it providing an agreed guaranteed number of 
weekly hours and such working hours being rostered at periods when the employee was agreed 
to be available to work.

… 

[638] Most importantly, the SCHCDSI Award does not contain any requirement for a 
minimum number of hours’ work per week, nor (unlike the current provisions in the 
Hospitality Awards) does it provide for any minimum hours per day. This latter aspect of the 
award was emphasised by Vice President Watson in his 2013 decision which added the current 
clause 10.3(c), in the passage we have earlier set out. That means that the agreed pattern of 
hours for a part-time employee can encompass short periods of service, which a number of the 
employer witnesses envisaged would be an increasingly common feature of the NDIS service 
model. In this respect, part-time employment is more flexible than casual employment under 
the SCHCDSI Award, since clause 10.4(c) provides, in effect, that disability services workers 

                                               

292 Part-time and Casual Employment Case at [641].
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are to be paid a one hour minimum when performing home care work and a 2 hour minimum 
for other types of work.’294

[277] In the present matter a few of the employer parties relied on the above extract in 
opposing the introduction of a minimum engagement term for part-time employees. As Ai 
Group put it:

‘The interrelationship between the various Award provisions and the need to ensure that the 
requisite flexibility to engage employees to work shorter shifts due to the NDIS service model 
is reflected in the above passage. Indeed we consider that the introduction of a minimum 
engagement period for part-time employees may call into question the need for other Award 
variations that improve an employer’s ability to engage part-time employees with sufficient 
flexibility to satisfy their clients’ needs.’295

[278] Similarly, AFEI submits:

‘The history of the Award demonstrates that the absence of a part-time minimum engagement 
period has been treated as a flexibility to employers which balances other restrictions on 
parttime employment, particularly those in clause 10.3(c) of the Award. 

The absence of a part-time minimum engagement period is thus an important feature of the 
Award’s safety-net and should not be disturbed without flexibility gains for employers. To do 
so would result in a safety net which is not fair to employers. As flexibility gains for 
employers are not part of the HSU proposed variation, the claim should be rejected.’296

[279] We deal with these submissions later.

[280] We accept that the Part-time and Casual Employment Case is relevant to the present 
matter but, as that decision makes clear, and as acknowledged by ABI,297 ultimately the task 
of considering minimum engagements in a modern award needs to be undertaken having 
regard to the particular characteristics of the industry covered by the award. And that is what 
we have done.

5.2.3 Other General Matters

[281] There are 2 further general matters before we turn to the submissions and evidence in 
relation to the HSU’s claim.

A Minimum engagements and broken shifts: the Aged Care Substantive Claims 
Decision

[282] The issue of minimum engagements in the context of broken shifts received some 
recent consideration in our Aged Care Substantive Claims Decision.298 In those proceedings 
the HSU sought to vary clause 22.8 of the Aged Care Award 2010 (the Aged Care Award) to 

                                               

294 Part-time and Casual Employment Case at [559] and [638].
295 Ai Group Submission, 13 July 2019 at para 178.
296 AFEI Submission, 23 July 2019 at paras 74 – 75.
297 ABI Submission, 12 July 2019 at para 6.15.
298 Aged Care Substantive Claims Decision.






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ensure that the minimum engagement requirement in clause 27.7(b) applied to each part of the 
broken shift, as follows: 

‘22.8 Broken shifts

With respect to broken shifts: 

(a) Broken shift for the purposes of this clause means a shift worked by a casual or 
permanent part-time employee that includes breaks (other than a meal break) totalling 
not more than four hours and where the span of hours is not more than 12 hours. 

(b) A broken shift may be worked where there is mutual agreement between the employer 
and employee to work the broken shift. 

(c) Payment for a broken shift will be at ordinary pay with penalty rates and shift 
allowances in accordance with clauses 25—Overtime penalty rates and 26– Shiftwork, 
with shift allowances being determined by the commencing time of the broken shift. 

(d) All work performed beyond the maximum span of 12 hours for a broken shift will be 
paid at double time. 

(e) An employee must receive a minimum break of 10 hours between broken shifts 
rostered on successive days. 

(f) Each portion of the shift must meet the minimum engagement requirements in 
22.7(b).’299 (emphasis added)

[283] It is also relevant that Clause 22.7(b) of the Aged Care Award provides: 

‘22.7 Minimum engagements

… (b) Permanent part-time and casual employees will receive a minimum payment of two 
hours for each engagement.’ 

[284] The HSU’s proposed variation would mean that casual and part-time employees 
working a broken shift must receive a minimum payment of 2 hours for each portion of the 
broken shift.

[285] We decided to vary the Aged Care Award in the manner proposed by the HSU for the 
following reasons: 

‘[187] The interpretation of clause 22.8 advanced by ABI and AFEI would allow a casual or 
part-time employee to be engaged to perform work on two or more occasions in a day and an 
engagement may be for less than an hour. Indeed there would be no minimum duration for an 
individual engagement provided the sum of the engagements (or broken shifts) on a particular 
day exceed 2 hours in total. It seems to us that such an outcome is antithetical to the purpose of 
a minimum engagement term, such as clause 22.7 in the Aged Care Award.

                                               

299 AM2018/13 – 4 yearly review of modern awards – Award stage – Group 4 – Aged Care Award 2010 – Substantive 
claims, HSU Submission, 23 January 2019 at para 11.






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[188] We note that ABI (and AFEI) point to a number of what are said to be ‘safeguards’ in 
relation to the use of broken shift, namely:

1. Broken shifts can only be worked by casual and permanent part-time 
employees.

2. A broken shift can only be worked where the employee agrees to work the 
broken shift.

3. The breaks within a broken shift cannot total more than four hours.

4. The span of hours of a broken shift cannot exceed 12 hours.

5. Part-time employees have the certainty of their pattern of work having been 
agreed in advance (in writing), including the number of hours to be worked 
each week, the days of the week to be worked, and the starting and finishing 
times of each day.

6. The existing minimum engagement provisions ensure that employees receive a 
minimum payment of two hours’ pay when working a broken shift.

[189] We are not persuaded these ‘safeguards’ are adequate and nor do we consider that in 
its current form, clause 22.8 is a fair and relevant safety net term. The fact that broken shifts 
can only be worked by ‘mutual agreement’ does not provide sufficient protection, particularly 
for casual employees.

[190] It is relevant to note that the Full Bench in the 2017 Casual and Part-time 
Employment decision considered (and rejected) an Ai Group proposal to vary the Fast Food 
Industry Award 2010 to allow an employer and a casual employee to agree on an engagement 
of less than the 3 hour minimum provided in clause 13.4 of that award. In rejecting the claim 
the Full Bench said:

‘The actual award variation advanced by the Ai Group may be criticised in the same 
way as the NRA proposal was criticised by Vice President Watson in his 2010 
decision – namely that it “does not address the balance that is required with award 
provisions of this type to provide reasonable safeguards for employees against unfair
engagement practices”. The general concept of casual employees agreeing to reduced 
minimum engagement periods is itself problematic, since the continued engagement of 
casuals at all is dependent upon them agreeing to the terms of each engagement 
(subject only to any applicable award obligations binding on the employer). Ai 
Group’s proposed provision does not require any minimum engagement period to be 
agreed in substitution for the standard 3 hour period at all, meaning that it would 
facilitate the complete removal of minimum engagement periods and thus open the 
door to the exploitation of casual employees.’

[191] Later in that decision, the Full Bench rejected the proposition that provisions which 
allow employees, voluntarily and at their initiative, to work additional hours at ordinary rates 
would represent a tangible benefit for employees, noting that:

‘Where a casual is engaged on a daily basis, the employer has the capacity under any 
facilitative provision, to dictate the terms of engagement, so that any employee who 
did not volunteer in writing to work additional hours at ordinary time rates would not 
be engaged.’








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[192] Further, in the Modern Awards Review 2012 – Award Flexibility Decision the Full 
Bench rejected applications which sought to include minimum engagement periods within the 
scope of the model flexibility term:

‘We are not persuaded that it is appropriate to include ‘minimum engagement periods’ 
within the scope of the model flexibility term. As we have noted these provisions 
relate to minimum wages and for many employees are an important aspect of the 
modern award safety net. As Vice President Watson observed in Secondary School 
Students case:

“There is a long history of minimum engagement periods for part time and 
casual employees providing protection for employees from employer 
expectations of working short periods where the cost and inconvenience of 
attending the workplace outweighs the benefits received from the engagement.”

Any variation to minimum engagement periods in modern awards should only be by 
application to vary the relevant modern award or by enterprise agreement. This will 
ensure that the variation is subject to appropriate scrutiny. It is not appropriate to 
permit such variations by IFAs, which are effectively self-executing. In our view, the 
inclusion of such terms within the scope of the model flexibility term would not be 
consistent with the modern awards objective.’

[193] To the extent that clause 22.8 permits casual and part-time employees to be engaged 
(and paid for) for a portion of a broken shift which is less than 2 hours it does not provide a 
fair safety net.’300 (footnotes omitted)

B Neutrality of treatment

[286] The second general matter concerns our adoption of the principle of ‘neutrality of 
treatment’ in the September 2019 Decision as part of our rationale for varying the SCHADS 
Award 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. In support of that variation 
the Unions had relied on passages from the Penalty Rates Case301 and the discussion in that 
case of the ‘default approach’ adopted by the Productivity Commission (the PC) in the 
Productivity Commission Inquiry Report: Workplace Relations Framework (the PC Final 
Report).

[287] The PC Final Report was published on 30 November 2015 following an inquiry into 
the ‘Workplace Relations Framework’ arising from a request made by the Commonwealth 
Government pursuant to Parts 2 and 3 of the Productivity Commission Act 1998 (Cth).302

Weekend penalty rates are considered in Chapters 10, 13, 14, 15 and Appendix F of the PC 
Final Report.  The consideration of penalty rates in the PC Final Report was limited to penalty 
rates that apply to the hospitality, entertainment, retail, restaurant and café industries, referred 
to as the HERRC industries in the PC Final Report. 

                                               

300 Aged Care Substantive Claims Decision at [187] – [193].
301 Penalty Rates Case at [338]. 
302 Productivity Commission, Productivity Commission Inquiry Report: Workplace Relations Framework, p v (‘PC Final 

Report’).






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[288] In relation to weekend penalty rates the central recommendation in the PC Final 
Report (Recommendation 15.1) was that the Commission should, as part of the Review:

 set Sunday penalty rates that are not part of overtime or shiftwork at the higher rate 
of 125% and the existing Saturday award rate for permanent employees in the 
HERRC industries

 set weekend penalty rates to achieve greater consistency between the HERRC 
industries, but without the expectation of a single rate across all of them, and

 investigate whether weekend penalty rates for casuals in the HERRC industries 
should be set so that casual penalty rates on weekends would be the sum of the 
casual loading and the revised penalty rates applying to permanent employees, with 
the principle being that there should be a clear rationale for departing from this.303

[289] The third dot point is of present relevance. 

[290] At Appendix F.3 of the PC Final Report, the PC notes that there are 3 basic models for 
calculating penalty rates for casuals and concludes that the ‘default approach’ is ‘the optimal 
approach’.304 Under the default method the casual loading is added to the penalty rate 
applying to a permanent employee. 

[291] In essence the default approach calculates the penalty wage rate for casuals as:

Penalty wage = Base wage x (casual loading + Penalty rate)
             100

[292] The PC’s rationale for the adoption of the ‘default approach’ as the ‘optimal approach’ 
is explained at page 496 of the PC Final Report:

‘The conflation of the casual loading and the premium rate for weekend work can hide the 
anomalous treatment of weekend rates for casuals in some awards. In principle, a wage system 
should not favour the employment of a person with identical competencies over another, yet 
this occurs in some awards for weekend work …

For neutrality of treatment, the casual loading should be added to the penalty rate of a 
permanent employee when calculating the premium rate of pay over the basic wage rate for 
weekend work. This would make an employer indifferent, at the margin, between hiring a 
permanent employee over a casual employee…

Achieving neutrality would require that penalty rates for casual employees would rise on 
Saturday’s for some awards.’305

[293] The Penalty Rates Case expressed ‘a preference’ for the PC’s ‘default approach’ and
went on to apply the default approach in varying the Sunday penalty rates in Hospitality306, 
                                               

303 PC Final Report, p 497.
304 PC Final Report, p 1125.
305 PC Final Report, p 496.
306 Penalty Rates Case at [887] – [897].






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Retail307 and Pharmacy Awards308; the weekend penalty rates in the Fast Food Award309 and 
the public holiday penalty rates in the Hospitality and Retail Awards. The Full Bench in the 
General Retail Industry Award Case310 applied that approach and increased the penalty rates 
for casuals working evenings (Monday to Friday) and on Saturdays. As mentioned earlier, the 
‘default approach’ is explained at Appendix F.3 of the PC Final Report.

[294] As we noted in the Aged Care Substantive Claims Decision, the principle of neutrality 
of treatment which underpins the PC’s default approach had also been adopted by the
Australian Industrial Relations Commission (AIRC) (a predecessor tribunal to the 
Commission) in considering the appropriate quantum of the casual loading. In the Metals 
Casual Decision311 an AIRC Full Bench increased the casual loading in the Metal 
Engineering and Associated Industries Award 1998 – Part 1, an antecedent of the 
Manufacturing and Associated Industries and Occupations Award 2010, from 20% to 25%, 
and in so doing made the following observation:

‘We have sought in our detailed reasoning in this case to develop a rationale about casual 
employment and its particular incidents that may be capable of application, with such changes 
as are necessary to other types of employment. In setting each condition we have given weight 
to the desirability of not producing different standards or reflecting preference for one type of 
employment over another.’312 (emphasis added)

[295] The approach adopted by the AIRC Full Bench is even more apparent in the following 
extract, earlier in the same decision:

‘The Commonwealth submitted that the loading should be so calculated as to make the choice 
between casual and “permanent” employees broadly cost neutral … we consider that the 
proposition does crystallise what should be an important objective in calculating and fixing the 
loading. A logical and proper consequence of providing for casual employment with the 
incidents currently attached to it is that, so far as the award provides, it should not be a cheaper 
form of labour, nor should it be made more expensive than the main counterpart types of 
employment.’313

[296] In the September 2019 Decision314 we endorsed the following conclusion from the 
Aged Care Substantive Claims Decision:

‘In our view the principle of neutrality of treatment, which underpins the PC’s ‘default 
approach’ and informed the Metals Casual Decision, is a sound industrial principle and, absent 
some compelling countervailing consideration, should generally be applied.’315

                                               

307 Penalty Rates Case at [1704] – [1715]. 
308 Penalty Rates Case at [1878] – [1883].
309 Penalty Rates Case at [2034] – [2035].
310 4 yearly review of modern awards – General Retail Industry Award 2010 [2018] FWCFB 5897. 
311 Re Metal, Engineering & Associated Industries Award (2000) 110 IR 247 (‘Metals Casual Case’).
312 Metals Casual Case at [200].
313 Metals Casual Case at [157].
314 September 2019 Decision at [152]. 
315 Aged Care Substantive Claims Decision at [137]. 






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[297] The principle of neutrality of treatment and the concomitant proposition that modern 
award terms should not be set such as to reflect a preference for one type of employment over 
another, supports the consistent application of minimum engagement terms to casual and part-
time employees. 

[298] We now turn to the claim before us. 

5.2.4 The Claim

[299] At present the SCHADS Award includes a minimum engagement term for casual 
employees only and the minimum engagement period is dependent upon the type of work 
performed. Clause 10.4(c) provides as follows:

‘(c) Casual employees will be paid the following minimum number of hours, at the appropriate 
rate, for each engagement:

(i) social and community services employees except when undertaking disability 
services work–3 hours; 

(ii) home care employees–1 hour; or

(iii) all other employees–2 hours.’

[300] As we have mentioned, HSU seeks to introduce a uniform 3-hour minimum 
engagement for all classes of employee: full-time, part-time and casual. In particular, the HSU 
seeks to delete clause 10.4(c) and insert a new clause 10.6 as follows:

‘The minimum engagement for employees under this award will be 3 hours.’

5.2.5 The Submissions

[301] The submissions and witness evidence relevant to the HSU’s minimum engagement 
claim are set out at Attachment C.

[302] The HSU submits that the absence of appropriate minimum engagement terms means 
that the SCHADS Award does not provide a fair and relevant minimum safety net:

‘It is striking (and counter-intuitive)… that the least protection by way of minima in respect of 
casual employees, applies to home care and disability support workers, about whom it might 
reasonably be concluded the expense and inconvenience associated with each shift of work is 
greatest. It is also striking that no minimum engagement applies in respect of part-time 
employees.

…

…it is commonplace within the industry for employees to be “rostered” to perform very short 
shifts – sometimes less than an hour, and often corresponding with the period of an 
appointment with a client of the service – interspersed with unpaid breaks between such 
periods of work/appointments. During the break in shift employees are required to travel 
(sometimes considerable distances) between clients in their own vehicles.








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The impact of those practices is compounded by the fact that within the industry the majority 
of workers are employed on Award rates only. 

… Those workers are some of the lowest paid and vulnerable workers in the modern award 
system – those performing care work for vulnerable clients including the elderly, those with 
dementia or people with disabilities, in their homes.’316

[303] The HSU contends that a 3 hour minimum engagement represents a fair and relevant 
minimum standard for workers under the SCHADS Award. Given the current standard 
minimum 3 hour engagement that applies to casual SACS workers (other than disability 
services employees), (see clause 10.4(c)(i)) the HSU submits that there is little basis for a 
provision any less than that standard for part-time workers. 

[304] The claim is supported by the other Unions and opposed, to varying extents, by the 
employer parties.

[305] Ai Group and AFEI oppose the HSU’s claim in its entirety.  Ai Group relies upon the 
various ‘countervailing considerations’ identified by the Casual and Part-time Employment
Full Bench (to which we referred earlier, see [247]) and submits that they are particularly 
relevant in the context of the HSU’s claim:  

‘Much of the work performed by employees providing home care and disability services work 
involves assisting clients with specific tasks such as showering, preparing and/or consuming a 
meal, taking medication, cleaning and so on. These are tasks which, in many instances, 
necessarily only require a limited period of time to complete. In the context of the NDIS, the 
question is not simply whether the employer can allocate or roster work differently so as to 
enable an employee to work a longer shift. The duration of the employee’s engagement is 
determined entirely by the wishes of the client; including both the nature of the assistance they 
request and the timing of the delivery of that assistance (that is, a client may request two types 
of assistance be provided on a particular day, but they be provided in two separate instances –
once in the morning and another in the afternoon).

These difficulties are further compounded by the extent to which multiple clients of an 
employer may request assistance simultaneously (for example, we understand there to be a 
particularly high demand for employers’ services in the morning when clients typically need 
assistance with showering, having breakfast etc). An employer can satisfy such service 
demands only by engaging a larger number of employees, each of whom are rostered to work 
concurrently. This may result in a situation where those employees are each requested to work 
shorter engagements rather than arranging the work such that it can be performed by a smaller 
number of employees as a series of consecutive ‘jobs’ or ‘supports’. As a result, an employer’s 
ability to arrange work in a way that would enable the performance of work over a consecutive 
3 hour period is seriously diluted.

In this context, “an excessive minimum engagement period may cause employers to determine 
that it is not commercially viable to offer casual engagements or part-time work, which may 
prejudice those who desire or need such work”317. It would also prejudice those who wish to 
work shorter engagements due to their personal circumstances or commitments. In either case, 
the grant of the claim “might have the counter-productive result of reducing workforce 

                                               

316 HSU Submission, 15 February 2019, paras 24, 29, 30 and 32.
317 Part-time and Casual Employment Case at [403].






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participation and social inclusion and … it may inhibit flexible modern work practices and the 
efficient and productive performance of work”318

[306] AFEI submits that during the award modernisation process the Commission gave 
specific consideration to the history and needs of the relevant sectors covered by the Award in 
setting the casual minimum engagement periods and accordingly ‘the current provisions 
should not be disturbed unless there is sufficient evidence of any change in the circumstances 
of the sectors or employees that would warrant departure from the current provisions’. AFEI 
contends that the ‘limited evidence’ adduced in these proceedings is:

‘insufficient to give the Commission a proper indication of a single workplace let alone an 
entire sector, let alone a number of sectors covered by the Award. Furthermore, the HSU has 
not filed any evidence in respect to its proposal to vary the casual minimum engagement 
period for the Family Day Care Scheme Sector from 2 hours to 3 hours.

Such limited evidence does not assist the Commission in its review of minimum engagement 
periods for casual home care employees, casual disability services employees, or casual family 
day care scheme employees.’319

[307] As we have already mentioned, the merits of the minimum engagement term in the 
SCHADS Award were not the subject of detailed consideration during the award 
modernisation process. We deal later with the evidence in the present proceedings. 

[308] The short point advanced by Ai Group and AFEI is that the HSU has not advanced a 
merits case in support of the variation sought and that such a variation would increase 
employment costs, reduce flexibility and have an adverse impact on service delivery. It is 
submitted that the variation proposed by the HSU is not necessary (within the meaning of 
s.138 of the Act) to ensure that the SCHADS Award achieves the modern awards objective.

[309] ABI, Business SA and NDS adopted a more nuanced response to the HSU’s claim.

[310] ABI opposes various elements of the HSU claim, it opposes:

 any change to the existing minimum engagements for casual employees

 the proposed introduction of any minimum engagement for full-time employees,
and

 the introduction of a uniform 3 hour minimum engagement for all part-time 
employees.

[311] However, ABI is not opposed to the introduction of minimum engagements for part-
time employees provided that: 

 they are consistent with the existing minimum engagement periods for casual 
employees, and

                                               

318 Ai Group Submission, 13 July 2019 at paras 171 – 173.
319 AFEI Submission, 23 July 2019 at paras 88 – 89.






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 attendances for the purpose of staff meetings and training / professional 
development are subject to a minimum engagement of 1 hour. 

[312] In short, ABI does not oppose: 

 a 1 hour minimum engagement for part-time home care employees 

 a 2 hour minimum engagement for part-time employees undertaking disability 
services work 

 a 2 hour minimum engagement for part-time employees in the crisis assistance and 
supported housing sector

 a 2 hour minimum engagement for part-time employees in the family day care 
scheme sector, and 

 a 3 hour minimum engagement for part-time employees in the SACS sector 
(excluding disability services).320

[313] Business SA acknowledged that the HSU ‘has provided cogent reasons why there 
should be a minimum engagement for part-time employees’,321 but opposed the imposition of 
a 3 hour minimum engagement. 

[314] NDS submits that applying a 3 hour minimum engagement to each period of work is 
unworkable in the context of NDIS. However, NDS observes that ‘[a] balance… needs to be 
struck in reviewing this award’322 and that it is not opposed to considering a minimum 
engagement of 2 hours for part-time disability services employees, limited to work performed 
when delivering client services.  

[315] NDS proposes the option of a minimum engagement only in the context of disability 
services, ‘in light of evidence of how working hours arrangements have changed in response 
to the implementation of NDIS’. NDS do not propose consideration of such a provision in 
other sectors.323

[316] NDS also submits that any such consideration needs to be in the context of also 
considering how clause 10.3 operates together with the rostering provisions of clause 25.5, to 
enable some reasonable degree of flexibility in the rostering of part-time employees.324 We 
return to that issue shortly.

[317] ABI does not oppose the NDS proposition that consideration be given to a minimum 
engagement of 2 hours for part-time disability services employees.

                                               

320 ABI Submission, 12 July 2019 at para 6.48.
321 Business SA Submission, 12 July 2019 at para 34.
322 NDS Submission, 12 July 2019 at para 25.
323 NDS Submission, 26 February 2020 at para 31.
324 NDS Submission, 12 July 2019 at para 25.






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[318] AFEI and Ai Group oppose the position advanced by NDS and Ai Group opposes the 
position of ABI. Ai Group submits a 2 hour minimum engagement for part-time employees is 
not necessary to ensure that the Award achieves the modern awards objective. 

‘Relevantly, the evidence demonstrates that shifts of less than two hours are commonly worked, 
including shifts of less than an hour.

It is also relevant that shift durations are dictated by client needs and employers do not have 
any capacity under the NDIS to recover additional funding in respect of time that is not spent 
providing a service to a client (subject to specific provisions concerning travel between 
clients). Ai Group says it would be unfair to visit the resulting serious cost implications on 
employers.’325 (footnotes omitted)

[319] Ai Group submits that while a 2 hour minimum engagement would result in less 
adverse consequences than a 3 hour minimum engagement, ‘the NDS’s proposal does not 
sufficiently ameliorate the many concerns we have previously outlined in opposition to the 
union’s claim.’326

[320] In response to the NDS’s proposal the HSU submits that, in respect of part-time 
employees, they ‘can see little basis for a provision any less than’ the minimum engagement 
period applying to casual employees under clause 10.4(c)(i), which is 3 hours.327

[321] We now turn to the evidence.

5.2.6 The Evidence

[322] In our view the evidence supports the following findings:

1. Short shifts are a very common feature in the home care and disability services 
sectors.328 In the home care and disability support areas employers regularly 
engage employees to work shifts of a duration of less than 3 hours,329 for 
example: 

 Mr Elrick, a Victorian organiser for the HSU, gave evidence of ‘shifts’ as 
short as 15 minutes (although the worker was paid for 45 minutes in that 
instance).330 Mr Eddington, a Tasmanian legal and industrial officer 
employed by the HSU, was aware of shift lengths of as little as 15 minutes, 

                                               

325 Ai Group Submission, 10 February 2020 at paras 140 - 141. 
326 Ai Group Submission, 10 February 2020 at para 142.
327 Joint Union Submission, 10 February 2020 at para 225.
328 Exhibit ASU4 – Stanford Report, September 2019 at para 11; Exhibit HSU3 – Witness Statement of William Elrick 

Statement, 14 February 2019 at para 19; Exhibit HSU28 – Witness Statement of Thelma Thames, 15 February 2019 at 

para 12; Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 35; Exhibit ABI6 – Witness 

Statement of Deborah Gaye Ryan, 12 July 2019 at para 64; Exhibit ABI9 – Witness Statement of Joyce Wang, 12 July 

2019 at para 56; Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at para 41; Exhibit ABI8 – Witness 
Statement of Wendy Mason, 17 July 2019 at para 63.

329 Exhibit ABI9 – Witness Statement of Joyce Wang, 12 July 2019 at para 56; Exhibit ABI8 – Witness Statement of Wendy 

Mason, 17 July 2019 at para 61.
330 Exhibit HSU3 - Witness Statement of William Elrick, 14 February 2019 at para 19.






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and a common practice of engaging workers for shifts of 1 hour (the current 
minimum for a casual employee)331

 Ms Thames, a home care worker employed by Uniting, has worked shifts of 
half an hour in duration,332 and

 Ms Ryan, a witness called by ABI, gave evidence that Community Care 
Options rosters shift lengths as short as 15 minutes.333

2. The incidence of short shifts is reflective of the nature of the services provided 
in this industry, and the personal care services, domestic care services, and 
lifestyle services that are provided, which include:334

 medication prompting

 personal care services (assistance with showering and getting dressed)

 meal preparation

 assistance improving skills (e.g. meal planning, teaching cooking skills,
support in responsibility for personal hygiene)

 domestic assistance (e.g. making beds, vacuuming and mopping floors,
cleaning the toilet and bathroom, laundry, shopping for groceries)

 transportation and assistance with mobility

 development of social skills and cognitive and emotional support

 community engagement, and

 respite care.

3. It is common for consumers in the home care and disability services sectors to 
request services of a short duration, for example:

 Mr Shanahan, Mr Wright and Ms Mason gave evidence that services of less 
than 1 hour are common,335 Mr Shanahan said that approximately 80% of all 
client visits are less than 1 hour336

                                               

331 Exhibit HSU30 - Witness Statement of James Eddington, 15 February 2019 at para 22.
332 Exhibit HSU28 - Witness Statement of Thelma Thames, 15 February 2019 at para 12.
333 Exhibit ABI6 - Witness Statement of Deb Ryan, 12 July 2019 at para 64.
334 Exhibit ASU10 – Witness Statement of Augustino Encabo, 13 February 2019 at paras 13 and 15; Exhibit HSU28 –

Witness Statement of Thelma Thames, 15 February 2019 at para 5; Exhibit HSU4 – Witness Statement of Heather 

Waddell, 15 February 2019 at para 4; Exhibit ASU9 – Witness Statement of Richard Rathbone Statement, 13 February 

2019 at paras 10 and 12; Exhibit HSU27 – Witness Statement of Pamela Wilcock, 15 February 2019 at para 9.
335 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at paras 34 – 35; Exhibit ABI3 – Witness 

Statement of Jeffrey Wright, 12 July 2019 at para 39; Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 

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 Mr Shanahan and Mr Wright both gave evidence that there is client demand 
for 30-minute services,337 and 

 Ms Ryan gave evidence that some services are for 15 minutes’ duration.338

4. Due to the high incidence of short duration client services, it is common for 
employees to provide a series of short-duration services to different clients 
throughout a single shift.339

5. As mentioned earlier, employees report a range of adverse consequences with 
working broken shifts with short engagements and unpaid travel time (see 
finding 6 at [232] above). 

[323] We also note the observation of the Part-time and Casual Employment Full Bench 
regarding evidence of short shifts in the disability sector covered by the SCHADS Award 
which ‘verged on being exploitative’:

‘There was some evidence of short shifts being worked in a manner which verged on being 
exploitative. For example, in the disability sector, Ms Potoi referred to working 1½ hour shifts 
in the disability sector as a part-time employee in circumstances where the travel required to 
perform the shift took the same amount of time again; Mr Quinn worked shifts varying in 
length from 4 hours to 30 minutes; and Mr Morgan worked whatever shifts were offered in 
order to preserve his job security.’340

5.2.7 Consideration

[324] We turn first to whether a minimum engagement term should be introduced for full-
time and part-time employees, such that they are entitled to a minimum period of payment per 
shift.  

[325] In support of the claim the HSU submits:

‘The Award presently provides no minimum engagement for full-time and part-time employees 
in any of the sectors it covers. This issue is of particular concern for parttime workers. The 
provisions regarding rostering and span of hours mean this issue is of less import for full-time 
workers.’341 (emphasis added)

[326] We agree with the highlighted sentence. 

                                                                                                                                                  

336 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 35.
337 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 34; Exhibit ABI3 – Witness Statement of 

Jeffrey Wright, 12 July 2019 at para 40.
338 Exhibit ABI6 - Witness Statement of Deb Ryan, 12 July 2019 at para 61.
339 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 38; Exhibit ABI7 – Witness Statement of 

Scott Harvey, 2 July 2019 at para 57; Exhibit ABI6 - Witness Statement of Deborah Ryan, 12 July 2019 at paras 64 - 66; 
Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at para 41; Exhibit ABI8 – Witness Statement of 

Wendy Mason, 17 July 2019 at para 59.
340 Part-time and Casual Employment Case at [406]. 
341 HSU Submission, 15 February 2019 at para 20.






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[327] Under the current terms of the SCHADS Award, full-time employees must be engaged 
to work 38 hours per week or an average of 38 hours per week, and the way in which those 
hours can be worked is conditioned by a range of requirements, including: 

 shifts must not exceed 8 hours each, or up to 10 hours by agreement

 the employee must be free from duty for not less than 2 full days in each week or 4 
full days in each fortnight or 8 full days in each 28 day cycle, and 

 the employee must be given a break of not less than 10 hours between the end of 
one shift or period of work and the start of another. 

[328] It follows that the prospect of full-time employees performing shifts of a short 
duration is likely to be very remote. The evidence does not support a finding that full-time 
employees are affected by unreasonably short shifts. And, in any event, the fact that full-time 
employees have a guarantee of 38 hours’ work and pay per week eliminates or at least 
ameliorates any adverse impact. 

[329] In our view, there is no merit basis for the introduction of a minimum engagement 
period in respect of full-time employees.  We reject this element of the HSU’s claim.

[330] We now turn to whether a minimum engagement term should be introduced for part-
time employees. 

[331] As mentioned earlier, ABI, Business SA and NDS do not oppose the introduction of 
minimum engagement terms for part-time employees, subject to a few caveats.

[332] Ai Group and AFEI oppose the introduction of any minimum engagement period for 
part-time employees and point to the ‘countervailing considerations’ identified by the Part-
time and Casual Employment Full Bench, in particular the needs of clients and the rostering 
practices of employers covered by the SCHADS Award. 

[333] Ai Group contends that: 

‘Part-time employees covered by the Award have the security of a guaranteed number of weekly 
hours of work by virtue of clause 10.3(c) of the Award. This of itself ‘creates an important 
distinction between casual and part-time employment in the context of determining the 
necessity of a minimum engagement period’.342

[334] In advancing this submission Ai Group draws attention to the following observation 
by the Part-time and Casual Employment Full Bench: 

‘we do not consider that a case has been made out for the daily minimum engagement of casual 
employees and part-time employees to be aligned in all cases, since in most modern awards 
part-time employment operates on the basis of a minimum weekly guarantee of hours, with the 
pattern of working hours established at the commencement of the employment and thereafter 

                                               

342 Ai Group Submission, 13 July 2019 at para 175.






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not able to be changed other than by agreement. For that reason, the circumstances of part-time 
employees are distinct in terms of income security from those of casual employees.’343

[335] The part-time employment provisions in the SCHADS Award operate based on a 
minimum weekly guarantee of hours whereby the pattern of hours is agreed before the 
commencement of employment. Clause 10.3 relevantly provides:

‘10.3 Part-time employment

(a) A part-time employee is one who is engaged to work less than 38 hours per week or 
an average of less than 38 hours per week and who has reasonably predictable hours 
of work.

(b) The terms of this award will apply to part-time employees on a pro rata basis on the 
basis that the ordinary weekly hours of work for full-time employees are 38.

(c) Before commencing employment, the employer and employee will agree in 
writing on:

(i) on a regular pattern of work including the number of hours to be worked each 
week, and

(ii) the days of the week the employee will work and the starting and finishing 
times each day.

(d) The agreed regular pattern of work does not necessarily have to provide for the same 
guaranteed number of hours in each week.’ (emphasis added)

[336] We accept that the circumstances of part-time employees are distinct, in terms of 
income security, from those of casual employees. A part-time employee has ‘reasonably 
predictable hours of work’ and a guaranteed number of hours each week; a casual employee 
does not. Indeed, an incident of casual employment is the absence of guaranteed work.

[337] To the extent that the above observation by the Part-time and Casual Employment Full 
Bench suggests that the provision of a guaranteed number of hours per week to part-time 
employees removes the need to provide a minimum period of engagement, we respectfully 
disagree; the 2 issues are unrelated.

[338] A part-time employee may have, say, 4 hours of guaranteed work each week, but the 
way in which those hours are worked may result in several very short shifts of say, 30 minutes 
duration. As the Part-time and Casual Employment Full Bench observed:

‘An employment arrangement may become exploitative if the income provided for the 
employee’s labour is, because of very short engagement periods, rendered negligible by the 
time and cost required to attend the employment.’344

[339] Minimum engagement periods protect employees from exploitation by ensuring that 
they receive a minimum payment for each work attendance. Further, as mentioned earlier, the 
                                               

343 Part-time and Casual Employment Case at [406]. 
344 Part-time and Casual Employment Case at [399]. 






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principle of neutrality of treatment supports the consistent application of minimum 
engagement terms to casual and part-time employees. 

[340] In our view, equity and fairness require that part-time employees covered by the 
SCHADS Award have an entitlement to a minimum period of payment per shift. 

[341] We now turn to consider the duration of the minimum engagement. 

[342] It will be recalled that clause 10.4(c) currently provides:

‘(c) Casual employees will be paid the following minimum number of hours, at the appropriate 
rate, for each engagement:

(i) social and community services employees except when undertaking disability 
services work–3 hours; 

(ii) home care employees–1 hour; or

(iii) all other employees–2 hours.’

[343] The HSU seeks a uniform 3 hour minimum engagement.

[344] The HSU submits that the observations of the Part-time and Casual Employment Full 
Bench invite a consideration of the time and cost expended by employees for the performance 
of any particular shift of work, in order to weigh whether the income is rendered negligible. 
The HSU submit that to undertake that weighing process in the case of disability services and 
home care workers requires consideration of (at least) the following matters:345

 the length of ‘shifts’ offered

 the capacity of employers to break shifts

 the time and cost expended in travelling to attend shifts

 whether such time and cost are remunerated and reimbursed, and

 the ‘dead time’ lost by employees because of broken shifts. 

[345] It seems to us that a number of these matters are not directly relevant for present 
purposes; they arise in respect of other claims.

[346] The HSU also submits that a 3 hour minimum engagement for workers will: 

(a) provide workers with sufficient remuneration from a shift as to make the shift 
viable when regard is had to the time and cost involved in preparing for and 
travelling to and from the shift

(b) promote the efficient performance of work, and 
                                               

345 HSU Submission, 3 October 2019 at para 24.








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(c) contribute to the attraction and retention of skilled workers into the industry.346

[347] We note that the HSU does not refer to the evidentiary basis for the propositions at (b) 
and (c).

[348] All the employer parties oppose a uniform 3 hour minimum engagement. 

[349] ABI submits that the imposition of a 3 hour minimum engagement would have a very 
significant adverse impact on employers: 

‘it will also seriously disadvantage members of the community who access services from these 
employers, as employers would not be prepared to continue delivering support services of a 
short duration, which is contrary to the objectives of the NDIS and other consumer directed 
care initiatives. It will also adversely affect employees who prefer short shifts to accommodate 
their other family, caring or study commitments.’347

[350] AFEI and Ai Group oppose any minimum engagement term for part-time employees.  
A key element of the case they put is the contention that rostering arrangements are dictated 
by client needs. The employers contend that the shortness of shifts is a necessary or 
fundamental feature of the industry, that it is a product of the fact that clients require services 
of a short duration. This contention is based on 3 related propositions:

1. The services required by clients in home care and disability services are of 
short duration.

2. An objective of the NDIS and other consumer-directed care initiatives is that
service providers respond to the needs of clients.

3. Rostering reflects the nature of short duration client services. 

[351] We accept that client preferences and continuity of care can impact the shift lengths 
that are provided to employees,348 but the submissions put by AFEI and Ai Group overstate 
that impact.  

[352] Contrary to AFEI’s submission we reject the proposition that the services provided by 
employees covered by the SCHADS Award are ‘dictated by client needs’.349 Nor do we 
accept Ai Group’s submission that ‘employers do not choose how and when work is 
scheduled.’350

[353] We note that a few of the employer witnesses referred to the impact of client demands 
and that it made planning consistent service difficult, but the same witnesses made 

                                               

346 Joint Union Submission, 10 February 2020 at para 46.
347 ABI Submission, 12 July 2019 at para 6.46.
348 Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at para 38; Exhibit ABI8 – Witness Statement of 

Wendy Mason, 17 July 2019 at para 55.
349 AFEI submission, 19 November 2019 at para B-2.
350 Ai Group Submission, 26 February 2020 at para 76.






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concessions in cross-examination. For example, Mr Wright in his statement at [38] states that 
‘the provider has no control over their choice, but we need to accommodate it nonetheless’,351

but in cross-examination Mr Wright agreed that HammondCare did not have a legal 
obligation to offer services to anyone who demands it at any time of day, and that in fact it is 
HammondCare that determines the range of services and the pricing that it applies to those 
services.352 Similarly, Ms Mason states in her statement at [55] that ‘the company’s home care 
activities are based on client demand and therefore rostering takes place around the preferred 
times of our clients’353 but acknowledged in cross-examination that it is a negotiated process 
between the client and the care facilitator.354

[354] The contention that short shifts are the inevitable result of short appointments ignores 
the choices made by employers about the length of the shifts that they offer, and the influence 
upon those choices of the fact that the SCHADS Award does not impose a minimum 
engagement (payment) period for part-time employees. 

[355] Determining the duration of a minimum engagement period is largely a matter of 
impression and judgment, balancing the relevant considerations. This is not an area where the 
disutility of short shifts can be precisely quantified; nor where the impact on employers can be 
confidently predicted. 

[356] In essence the Unions contend that the remuneration from short shifts ‘would not 
justify the time and cost required for the worker to attend’ such a shift and that the variation 
proposed is required to ensure that a shift is ‘viable’ from an employee’s perspective. We 
accept that this will not invariably be the case, it will depend on the circumstances. But it 
seems to us that in most cases it is likely that the time and cost associated with working short 
engagements will be disproportionate to the income derived from the period of the 
engagement. 

[357] Viewed solely from an employee’s perspective we see the force of the argument put. It 
is apparent from the evidence that the current work arrangements – including the prevalence 
of short shifts – have a significant adverse effect on the employees subject to those 
arrangements.

[358] But there are a few significant countervailing considerations.

[359] The evidence suggests that the imposition of a uniform 3 hour minimum engagement 
for all categories of workers would have several adverse outcomes for employers. In short, the 
imposition of a uniform 3 hour minimum engagement would not be a fair outcome for 
employers. A 3 hour minimum engagement:

(a) will impose a significant financial strain for employers355

                                               

351 Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019.
352 Transcript, 17 October 2019, cross-examination of Mr Jeffrey Wright at PN2543-PN2551.
353 Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019.
354 Transcript, 18 October 2019, cross-examination of Wendy Mason at PN3230-PN3237.
355 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 40; Exhibit ABI9 – Witness Statement of 

Joyce Wang, 12 July 2019 at para 63. 






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(b) may adversely affect customer service levels or prevent service providers from 
providing particular services,356 and

(c) is likely to significantly impact staff rostering workloads and reduce 
flexibility.357

[360] The imposition of a 3 hour minimum engagement for all categories of workers may 
also adversely impact consumers and the ability of the NDIS to deliver on the principles of 
consumer-directed care.

[361] The balance of considerations tells against the adoption of a uniform 3 hour minimum
engagement. We reject this element of the HSU’s claim. What then should be the minimum 
engagement (payment) period for part-time and casual employees?

[362] As mentioned earlier, ABI is not opposed to the introduction of minimum 
engagements for part-time employees provided that: 

 they are consistent with the existing minimum engagement periods for casual 
employees, and

 attendances for the purpose of staff meetings and training / professional 
development are subject to a minimum engagement of one hour. 

[363] In short, ABI does not oppose: 

 a 1 hour minimum engagement for part-time home care employees

 a 2 hour minimum engagement for part-time employees undertaking disability 
services work

 a 2 hour minimum engagement for part-time employees in the crisis assistance and 
supported housing sector

 a 2 hour minimum engagement for part-time employees in the family day care 
scheme sector, and 

 a 3 hour minimum engagement for part-time employees in the SACS sector 
(excluding disability services).358

[364] Similarly, NDS does not oppose a minimum 2 hour engagement for part-time 
disability services employees. 

                                               

356 Exhibit ABI7 – Witness Statement of Scott Harvey, 2 July 2019 at para 60.
357 Exhibit ABI6 - Witness Statement of Deborah Ryan, 12 July 2019 at para 72; Exhibit ABI3 – Witness Statement of 

Jeffrey Wright, 12 July 2019 at para 42.
358 ABI Submission, 12 July 2019 at para 6.48.






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[365] As noted earlier, AFEI and Ai Group oppose the position advanced by NDS and Ai 
Group opposes the position of ABI. 

[366] The HSU submits that the 2 hour minimum engagements suggested by ABI and NDS 
‘barely rise above the level of the verging on exploitative shift of Ms Potoi considered by the 
Casual and Part-time Employment Full Bench.’359

[367] In our view, a 2 hour minimum engagement (payment) period for casual and part-time 
employees undertaking disability work; work in the crisis assistance and supported housing 
sector and employees in family day care reflects an appropriate balance between the various 
considerations and is a fair and relevant minimum safety net term. We proposed to retain the 
existing 3 hour minimum payment period for casual SACS employees, except when they are 
undertaking disability work and extend the operation of the current minimum payment 
provisions to part-time employees.

[368] Save for 2 matters, we see merit in the position put by ABI. In our view the adoption 
of a 2 hour minimum engagement for casual and part-time employees in the sectors identified 
by ABI (disability work; work in the crisis assistance and supported housing sector and 
employees in family day care) appropriately balances the competing considerations. But we 
depart from ABI in 2 respects:

1. The minimum engagement terms for casual and part-time home care 
employees – we will adopt a 2 hour minimum engagement period (ABI 
suggested 1 hour).

2. ABI proposes that attendance for the purpose of staff meetings and training / 
professional development be subject to a minimum engagement of 1 hour. We 
do not propose to adopt this proposal. 

[369] We are not persuaded that the characteristics of the home care work sector sufficiently 
warrant a shorter minimum engagement period. 

[370] This outcome is consistent with the decision of the Part-time and Casual Employment
Full Bench to insert a 2 hour minimum engagement for casuals in 32 modern awards which 
previously had not contained a minimum engagement period at all. 

[371] We are conscious of the circumstances faced by employers covered by the SCHADS 
Award. 

[372] While the adoption of a 2 hour minimum engagement may alter the rostering practices 
of some employers, the evidence shows that employers often bundle a series of short-duration 
client services together to create a shift for employees.360 Employers also attempt to ‘build’ a 
shift for workers by combining numerous client services so that the shift is attractive to 

                                               

359 HSU Submission, 3 October 2019, at para 29.
360 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 38; Exhibit ABI3 – Witness Statement of 

Jeffrey Wright, 12 July 2019 at para 41; Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 at para 71; 

Exhibit ABI7 – Witness Statement of Scott Harvey, 2 July 2019 at paras 57 - 58; Exhibit ABI6 - Witness Statement of 

Deborah Ryan, 12 July 2019 at para 65.






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employees.361 This rostering practice is easier in metropolitan areas where there is a high 
volume of customers located within close proximity to each other. We acknowledge that it 
may be more challenging to ‘build’ a shift of work in regional and rural areas and we have 
taken this into account.362

[373] The evidence indicates that it can be difficult to provide employees with shifts longer
than 2 hours,363 and that employers may struggle to meet client demand over peak periods if 
required to provide shifts of 3 hours.364

[374] We now turn to the second way in which we depart from ABI – a 1 hour minimum 
engagement for staff meetings etc.

[375] This proposal was opposed by the Unions, on the following bases:

‘…so far as ABI seeks to reserve a one hour minimum engagement for staff meetings and the 
like, ABI does not identify any other award with like provision. Given the rationale for 
minimum engagements is the avoidance of exploitation resulting from having the income 
generated by an attendance at work outweighed by the time and cost of attendance, there is no 
basis for exempting any particular work related activity from any minimum engagement 
provision.’365

[376] ABI did not advance a cogent merit argument in support of their proposal and nor 
were we directed to any relevant evidence. We are not persuaded to provide a 1 hour 
minimum engagement for the activities identified, at this time. But that is not the end of the 
matter; we propose to provide ABI (and any other interested party) an opportunity to present 
further arguments and evidence in support of the proposed change. 

[377] The merits favour the variation of clause 10.4(c) by deleting the current term and 
inserting a new clause 10.5 as follows:

‘10.5 Minimum payments for part-time and casual employees

Part-time and casual employees will be paid for the following minimum number of hours, at 
the appropriate rate, for each shift or period of work in a broken shift:

(a) social and community services employees (except when undertaking 
disability services work)—3 hours;

(b) all other employees—2 hours.’

[378] We now turn to deal with the s.134 considerations. 

                                               

361 Transcript, 18 October 2019, cross-examination of Deborah Ryan at PN3050; Transcript, 17 October 2019, cross-

examination of Steven Miller at PN2035-2039; Exhibit ABI7 – Witness Statement of Scott Harvey, 2 July 2019 at paras 

57 - 58; Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 at paras 60 – 61.
362 Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 at paras 57 – 58.
363 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 39; Exhibit ABI3 – Witness Statement of 

Jeffrey Wright, 12 July 2019 at para 41; Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 at para 61.
364 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 38.
365 Joint Union Submission, 10 February 2020 at para 37.






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[379] Section 134(1)(a) requires that we consider ‘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) of the Act. A 
proportion of employees covered by the SCHADS Award may be regarded as ‘low paid’ 
within the meaning of s.134(1)(a) of the Act. 

[380] The low paid will be better able to meet their needs if the proposed variation is made.

[381] The ‘needs of the low paid’ is a consideration which weighs in favour of the variation 
we propose to make.

[382] Section 134(1)(b) requires that we consider ‘the need to encourage collective 
bargaining’. We are not persuaded that the proposed variation to include a new clause 10.5 
would ‘encourage collective bargaining’, it follows that this consideration does not provide 
any support for such a change. 

[383] Section 134(1)(c) of the Act requires that we consider ‘the need to promote social 
inclusion through increased workforce participation’. Obtaining employment is the focus of 
s.134(1)(c). 

[384] The impact of the proposed variation on total employment is not likely to be 
significant. We regard this consideration as neutral. 

[385] It is convenient to deal with the considerations ss.134(1)(d) and (f) together. 

[386] The proposed variation may result in a change in rostering practices for some 
employers; it will limit flexibility in the rostering of employees and is likely to increase 
employment costs. 

[387] The considerations in s.134(1)(d) and (f) weigh against the variation we propose.

[388] The considerations in s.134(1) (da), (e), (g) and (h) are not relevant in the present 
context. 

[389] 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 ss.134(1)(a)–(h) of the Act. We have taken into 
account those considerations insofar as they are presently relevant and have decided to vary 
the SCHADS Award as proposed at [377] above. 

[390] There is one final matter before we leave the topic of minimum engagement.

[391] A few of the employer parties contend that the variation of the SCHADS Award to 
introduce minimum engagement periods for part-time employees calls into question aspects of 
the current award provisions which regulate part-time employment. In this context reference 
is made to the reasons given by the Part-time and Casual Employment Full Bench for 
rejecting ABI’s claim in those proceedings and Vice President Watson’s reasons for rejecting 
the ASU’s claim in the Transitional Review. We do not propose to embark on a review of the 
part-time employment provisions in the SCHADS Award on our own motion. If any party 
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5.3 BROKEN SHIFTS CLAIMS

5.3.1 Background

A The current award term

[392] Clause 25.6 of the SCHADS Award provides for certain types of work to be 
undertaken on a non-consecutive basis (i.e. as broken shifts):

‘25.6 Broken shifts

This clause only applies to social and community services employees when undertaking 
disability services work and home care employees.

(a) A broken shift means a shift worked by an employee that includes one or more 
breaks (other than a meal break) and where the span of hours is not more than 12 hours.

(b) Payment for a broken shift will be at ordinary pay with penalty rates and shift 
allowances in accordance with clause 29 – Shiftwork, with shift allowances being determined 
by the finishing time of the broken shift.

(c) All work performed beyond the maximum span of 12 hours for a broken shift will be 
paid at double time.

(d) An employee must receive a minimum break of 10 hours between broken shifts 
rostered on successive days.’

[393] Employees whose ordinary hours involve a broken shift on a Saturday or Sunday are 
paid 150% of their ordinary rate for Saturday work and 200% for Sunday work (see clause 
26.1). These rates are in substitution for and not cumulative upon the shift penalties in clause 
29 (see clause 26.2). 

[394] It is convenient to deal with the award history and the broken shift provisions in other 
modern awards before turning to the submissions and evidence in respect of the claims. 

B Award History - the Transitional Review

[395] The broken shift provision in clause 25.6 was considered during the Transitional 
Review. In that matter the ASU sought to vary clause 25.6 to remove the availability of 
broken shifts in the disability sector; or, in the alternative, to introduce a broken shift 
allowance. Vice President Watson concluded that a case had not been made out to vary the 
existing arrangements:

‘As with many other modern awards, this Award replaced a large number of other awards that 
applied in different states or parts of the social and community services sector. In creating a 
single award for the sector the AIRC had regard to the various provisions that applied under 
those previous instruments and applied the statutory tests applicable to the award 
modernisation exercise. The retention of arrangements for some became a change for others 
not covered by provisions of a particular type. It is understandable therefore that the change 
presents some difficulties. It is also understandable that a reversal of the situation would 
present difficulties for others. That is particularly so when one considers the blurring of home 








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care and disability services in practice. I do not consider that a case has been made out to 
modify the existing arrangements. The variations to the Award in 2012 also deal with the 
position of penalties for broken shifts. No case for a further change has been made out.’366

[396] ABI initially contended that the Unions (and in particular, the ASU) were simply 
seeking to relitigate a matter which had been previously advanced and rejected. In a later 
submission ABI clarified its position as follows:

‘We accept that the unions are free to reagitate a previously agitated matter that was considered 
during the transitional review process. We further accept that decisions made during the 
transitional review do not prevent the Commission from reconsidering the matter in these 
proceedings and reaching a different conclusion based on the evidence and submissions before 
it. The question is whether the Commission should place weight on the transitional decision 
and, if so, how much weight should be given to it. We accept that it is open to the Commission 
to place limited weight on the transitional review decision.’367

[397] We note that in the same Transitional Review decision the Vice President also rejected 
the ASU’s application for minimum engagements for part-time employees. We also note that 
the Transitional Review was more limited in scope than the Review and that the relevant 
legislation had changed and that s.134(1)(da) was subsequently inserted into the Act. 

[398] Consistent with the view we have taken in dealing with the minimum engagement 
claim we have decided not to give significant weight to the Vice President’s decision to reject 
the ASU’s broken shifts claim. 

[399] AFEI refer to a separate Transitional Review proceeding in their submissions 
opposing any change in relation to broken shifts. We deal with that submission later. 

C Broken shift terms in modern awards

[400] The ASU contends that only 18 modern awards permit employers to engage 
employees on ‘broken’ or ‘split shifts’. A summary of the broken shift provisions in other 
modern awards was set out as an annexure to the ASU submissions.368

[401] In Background Paper 1, we asked the parties whether the ASU annexure was an 
accurate summary of the modern award provisions that allow employers to engage employees 
on ‘broken’ or ‘split’ shifts (and if not accurate, which findings were challenged and 
why?)’369

[402] In response, Ai Group submitted that the ‘notes’ prepared by the ASU did not 
necessarily comprehensively describe or explain the way the relevant broken shift provisions 
operate and made some observations about a number of those comments.370

[403] ABI agreed that the ASU’s summary was accurate save for a few minor points.371

                                               

366 Australian Municipal, Administrative, Clerical and Services Union [2013] FWC 4141 at [29].
367 ABI Submission, 10 February 2020 at para 26.
368 ASU Submission, 18 February 2019. 
369 Background Paper 1 at [73]. 
370 Ai Group Submission, 10 February 2020 at paras 133 and 134. 






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[404] It is apparent from a review of the broken shift provisions in the ASU annexure that 
the extent of the regulation of broken shifts varies between modern awards. As a general 
proposition, the SCHADS Award is less beneficial to employees than the broken shift 
provisions in a significant number of the awards listed in the ASU annexure. For example:

 7 of the awards restrict broken shifts to 2 periods of work (i.e. one ‘break’, 
excluding meal breaks), and

 several awards provide that broken shifts may only be worked by mutual 
agreement. 

[405] Most of the modern awards listed in the ASU annexure provide for the payment of an 
allowance calculated as a percentage of the ‘standard rate’ prescribed in the particular award, 
although the relevant percentage varies considerably across awards. 

[406] Standard rates were included in modern awards during the award modernisation 
process. The award modernisation request made by the Minister for Employment and 
Workplace Relations, as amended on 16 June 2008, contains the following paragraph:

‘27 The Commission is to ensure that all modern awards include an appropriate method or 
formula for automatically adjusting relevant allowances when minimum wage rates are 
adjusted.’

[407] A definition of ‘standard rate’ was then inserted into each of the relevant modern 
awards during the modernisation process. The standard rate was set at the ‘minimum wage for 
the key classification in the award’.372 Wage related allowances are expressed as a percentage 
of the standard rate and this provides a mechanism for adjustment of the allowances when the 
standard rate is adjusted because of the Annual Wage Review. The definition in the SCHADS 
Award is:

‘standard rate means the minimum wage for a Social and community services employee level 
3 at pay point 3 in clause 15.3’

[408] The quantum of the broken shift allowance in the relevant awards set out in the ASU 
annexure noted at [400] above:

Award % of standard 
weekly rate

Amount Payable

Higher Education-General 
Staff – Award 2020373

0.28 $2.47 per day

                                                                                                                                                  

371 Namely: (a) clause 22.8 of the Aged Care Award 2010 now includes a subsection (f) which provides that each portion of 

the shift must meet the minimum engagement requirements; (b) Children’s Services Award 2010 – reference to ordinary 

hours clause should read 21.2; (c) Mining Industry Award 2010 – Clause 14.3(c)(ii) for allowance; (d) Animal Care and 
Veterinary Services Award 2010 – broken shift allowance is clause 16.2(b). See ABI Submission, 10 February 2020 at 

para 25, p 59.
372 Award Modernisation [2008] AIRCFB 717 at [27].
373 Higher Education-General Staff-Award 2020, clause C.1.3.






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Award % of standard 
weekly rate

Amount Payable

Higher Education-General 
Staff – Award 2020374

1.38 $12.16 maximum per week

Hospitality Industry (General) 
Award 2020375

0.33 $2.90 per day where the 
period between shifts 

is between 2 and 3 
hours

Hospitality Industry (general) 
Award 2020376

0.50 $4.39 per day where the 
period between shifts 
is more than 3 hours

Mining Industry Award 
2020377

1.07 $9.39 per week

Security Services Industry 
Award 2020378

1.62 $14.35 per rostered shift

Cleaning Services Award 
2020379

0.458 $3.69 per day

Cleaning Services Award 
2020380

2.29 $18.43 maximum per week

Registered and Licensed Clubs 
Award 2020381

0.40 $3.51 per day

Fitness Industry Award 
2020382

1.70 $14.16 per day 

Animal Care and Veterinary 
Services Award 2020383

1.60 $14.04 per shift

Restaurant Industry Award 
2020384

0.50 $4.39 for each separate 
work period of 2 

hours or more

Children’s Services Award 
2010385

1.91 $16.76 per day

5.3.2 The Claims

                                               

374 Higher Education-General Staff-Award 2020, clause C.1.3.
375 Hospitality Industry (General) Award 2020, clause 26.14(b)(i).
376 Hospitality Industry (General) Award 2020, clause 26.14(b)(ii).
377 Mining Industry Award 2020, clause 18.2(d)(iii).
378 Security Services Industry Award 2020, clause 17.4
379 Cleaning Services Award 2020, clause 17.2(b).
380 Cleaning Services Award 2020, clause 17.2(b).
381 Registered and Licensed Clubs Award 2020, clause 19.2(c).
382 Fitness Industry Award 2020, clause 17.2(b) (and for excess fares incurred, a payment of $1.95 per day).
383 Animal Care and Veterinary Services Award 2020, clause 16.2(a).
384 Restaurant Industry Award 2020, clause 21.3(b).
385 Children’s Services Award 2010, clause 15.1. 






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[409] There are 3 claims in respect of broken shifts.

A The HSU Claim

[410] The HSU is seeking the following changes to clause 25.6 of the SCHADS Award:386

‘25.6 Broken shifts

(a) This clause only applies to: 

(i) social and community services employees when undertaking disability services 
work; and 

(ii) home care employees. 

(ab) For the purposes of this clause, a A broken shift means a shift worked by an a casual or 
part-time employee that includes no more than one or more breaks (other than a meal break) 
and where the span of hours is not more than 12 hours. 

(c) A broken shift may only be worked where there is mutual agreement between the employer 
and employee.

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

(e) The minimum period of engagement specified in clause 10.6 shall apply to each period of 
work in a broken shift. 

(bf) In addition to the rates at 14.4(d) Payment for a broken shift will be at ordinary pay with
penalty rates and shift allowances in accordance with clause 29— Shiftwork and clause 28—
Overtime apply. with shift allowances being determined by the finishing time of the broken 
shift.

(g) Shift allowances will be determined by the starting or finishing time of the broken shift, 
whichever allowance is higher. The allowance will apply across both parts of the shift. 

(ch) All work performed beyond the maximum span of 12 hours for a broken shift will be paid 
at double time 200% of the minimum hourly rate.

(di) An employee must receive a minimum break of 10 hours between broken shifts rostered 
on successive days.’ (proposed variation in underlined text)

[411] The variation proposed varies clause 25.6 in the following respects: 

 it limits the application of the clause to part-time and casual employees. The clause 
would no longer apply to full-time employees

                                               

386 HSU Amended Draft Determination, 15 February 2019 at para 3.






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 it imposes a limit of 1 break per shift such that a shift could only be ‘broken’ into 2 
parts on a given day

 it requires that the employer and employee must agree that the employee will work 
a broken shift for a broken shift to be worked

 it introduces an express obligation to pay an employee for time spent travelling 
during the break in the shift and to treat such time as time worked

 it requires that each portion of the broken shift must be at least 3 hours in length, 
and

 it provides that the shift allowance be determined by either the starting time or the 
finishing time of the broken shift, whichever is the greater.

[412] In its supplementary submissions in reply of 3 October 2019 (at [40] – [41]) the HSU 
accepts that it is appropriate in this industry for full-time workers to work broken shifts by 
agreement and accepts that its draft variation ‘inadvertently excludes that possibility’.387 It
later submits that the words ‘a casual or part-time employee’ should be deleted from its 
proposed variation determination.388

[413] We have already dealt with the minimum engagement (payment) claim and will vary 
clause 25.6 in accordance with that decision. The aspect of the claim which deals with travel 
time is dealt with later.

B The UWU Claim

[414] The UWU claim is substantially the same as elements of the HSU claim. The UWU 
seeks the following changes to clause 25.6: 

‘25.6 Broken shifts

This clause only applies to social and community services employees when undertaking 
disability services work and home care employees.

(a) A broken shift means a shift worked by an employee that includes one or more breaks 
(other than a meal break) and where the span of hours is not more than 12 hours. For the 
purposes of this award a broken shift is a shift where an employee works in two separate 
periods of duty on any day within a maximum spread of twelve (12) hours and where the 
break between periods exceeds one hour. 

(b) Payment for a broken shift will be at ordinary pay with penalty rates and shift allowances 
in accordance with clause 29—Shiftwork, with shift allowances being determined by the 
starting or finishing time of the broken shift, whichever is greater. 

                                               

387 HSU Submission, 3 October at para 40.
388 Joint Union Submission, 10 February 2020 at para 223.






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(c) All work performed beyond the maximum span of 12 hours for a broken shift will be paid 
at double time. 

(d) An employee must receive a minimum break of 10 hours between broken shifts rostered on 
successive days.’ (proposed variation in underlined text)

[415] The variations proposed: 

 redefine a broken shift such that a shift could only be ‘broken’ into 2 parts on a 
given day where the break in the shift must not exceed 1 hour, and

 provides that the shift allowance be determined by either the starting time or the 
finishing time of the broken shift, whichever is greater. 

C The ASU Claim

[416] The ASU is seeking the insertion of a new clause 25.6(b)(i), in the terms set out 
below:389

‘25.6 Broken shifts 

This clause only applies to social and community services employees when undertaking 
disability services work and home care employees. 

(a) A broken shift means a shift worked by an employee that includes one or more breaks 
(other than a meal break) and where the span of hours is not more than 12 hours. 

(b) An employee who works a broken shift will receive: 

(i) Payment for a broken shift will be at oOrdinary pay plus a loading of 15% of their 
ordinary rate of pay for each hour from the commencement of the shift to the 
conclusion of the shift inclusive of all breaks; and 

(ii) with penalty rates and shift allowances in accordance with clause 29—Shiftwork, 
with shift allowances being determined by the finishing time of the broken shift. 

(c) All work performed beyond the maximum span of 12 hours for a broken shift will be paid 
at double time. 

(d) An employee must receive a minimum break of 10 hours between broken shifts rostered 
on successive days.’ (proposed variation in underlined text)

[417] The variation sought would provide that employees working a broken shift receive an 
additional 15% loading for the duration of the entire shift and any intervening breaks; that is,
in addition to the shift allowances provided in clause 29.  

5.3.3 The Submissions

                                               

389 ASU Submission, 18 February 2019 at para 20.






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[418] The submissions and witness evidence relevant to the Unions’ broken shift claims are
set out at Attachment D. 

A Union submissions

(i) HSU and UWU

[419] The HSU contends that the only current restraint on the utilisation of broken shifts is 
that the shift may not span more than 12 hours (cl 25.6(a)) and that the current award 
provisions are ‘manifestly open to exploitation’:

‘The capacity to have more than one break during the shift can mean that an employee may be 
required to work three or more separate periods of work over the course of many hours in 
order to generate a reasonable amount of earnings.’390

[420] The HSU submits that under the current regime a large part of the day may be taken 
up accumulating disproportionately few hours of paid work. Mr Quinn described one of his 
working days as follows:

‘…on 17 July 2019, I worked from 8am-9am, 11am-12pm, 2pm to 5pm and 6:30pm to 7:30pm. 
So over an 11.5 hour day I worked 6 hours, with two breaks of two hours and one break of 1.5 
hours.’391

[421] It is contended that the establishment of a minimum engagement period and the 
elimination of the capacity to break such periods is likely to promote the efficient and 
productive performance of work:

‘it will create a clear, and direct financial incentive for employers to manage work allocation in 
a way which will attract and retain appropriately skilled workers.’392

[422] The UWU submits that the combination of the non-payment of travel time, the 
unrestricted use of broken shifts, and the lack of minimum engagement provisions do not 
provide a fair and relevant minimum safety net of terms and conditions, but rather, ‘lend 
themselves to inappropriate and unsustainable work patterns.’393

[423] As to the s.134 considerations, the UWU submits:

 s.134(1)(a) – ‘relative living standards and the needs of the low paid’ – the 
SCHADS Award cannot be said to be ‘fair and relevant’ when low paid award 
reliant employees are not paid for time that they are required to travel in the course 
of their duties, and

 underemployment is a significant issue in the social and community sector and the 
proposed variation may increase work participation in a few ways:

                                               

390 HSU Submission, 15 February 2019 at para 37.
391 HSU Submission, 18 November 2019 at para 71 citing Exhibit HSU32 - Supplementary Witness Statement of Scott 

Quinn, 3 October 2019 at para 24. 
392 HSU Submission, 18 November 2019 at para 80.
393 UWU Submission, 1 April 2019 at para 9.






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 currently employed workers will be paid for the hours they actually work. 
This will increase the hours worked by each employee, and

 if workers are paid for the time they actually work, they may reduce their 
weekly hours of work, creating opportunities for other workers to increase 
their hours. 

[424] In conclusion the UWU submits:

‘In summary, there is evidence that justifies amending the Award to limit the amount of breaks 
within a shift to one. Multiple broken shifts reduce the earning capacity of employees, and are 
disruptive to the lives of employees. Roster patterns in which multiple broken shifts are used 
operate on the basis that employees will be available for long periods of time in order to obtain 
sometimes a few hours of work. Service providers are able to set out the terms on which they 
provide services and have the capacity to arrange work in a manner that restricts the breaks 
within a shift to one. There is also a clear preference for some providers to limit breaks in shift 
to one. The Award should incentivise rostering practices which maximise continuous patterns 
of work.’394

(ii) ASU

[425] The ASU contends that the current clause 25.6 does not provide a fair and relevant 
safety net of minimum terms and conditions and submits that clause 25.6 currently provides 
‘exceptional flexibility’ to employers in rostering home care or disability services employees 
in ‘broken arrangements’, in particular:395

 ordinary hours do not need to be worked continuously

 there are no restrictions on the number of breaks in work

 there is no minimum engagement

 there is no requirement for the employee to agree to work broken shifts, so broken 
shifts may be rostered at the discretion of the employer

 shift allowances are determined by the finishing time of the broken shift, and

 no allowance is paid to compensate for the disutility associated with working a 
broken shift.

[426] The ASU submits that:

‘Employees do not receive any additional remuneration to compensate for this extreme 
variability in rostering.’396

                                               

394 UWU Submission, 18 November 2019 at para 44.
395 ASU Submission, 18 February 2019 at para 21.
396 ASU Submission, 18 February 2019 at para 22.






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[427] Further, the ASU contends that the SCHADS Award has the following unique features 
which provide employers with significant flexibility: 

 the roster of part-time employees may be changed at any time under clause 
25.5(d)(iii) which provides that the restrictions on changing the roster do not apply 
to mutually agreed additional hours worked by part-time employees

 part-time employees are not paid overtime until they work 10 hours in a day or 38 
hours in a week or 79 hours in a fortnight397

 there is no minimum engagement for part-time or full-time employees

 employers are not required to roster meal breaks if they require an employee to have 
a meal with a client or clients398

 casual disability services employees are only entitled to a 2 hour minimum 
engagement399

 casual home care employees are only entitled to a 1 hour minimum engagement,400

and 

 if a client cancels an appointment, a home care employee’s roster can be changed if 
they are notified before 5.00pm the day before. In these circumstances they will not 
be paid for the shift. If they are notified about the client cancellation after that time, 
they will only be paid for the minimum specified hours on that day. An employee 
can also be directed to work make-up time sometime in that roster period or the 
next.401

[428] The ASU submits that the combined effect of clause 25.6 and the other unique features 
of the SCHADS Award is that: 

‘an employee may be rostered to work broken shifts with little restriction on how those hours 
may be worked. This permits employers to roster employees in highly irregular and unsociable 
patterns of work.’402

[429] The ASU also submits that working such irregular and unsystematic hours ‘has a 
negative effect on the physical and psychological health, and on the social life, of workers and 
their families and the people they care for.’403

[430] The ASU notes that the HSU and UWU have also proposed variations to clause 25.6. 
The other Unions’ claims deal with the same problems addressed by the ASU claim but seek 

                                               

397 SCHADS Award, clause 28.1(b).
398 SCHADS Award, clause 27.1(c).
399 SCHADS Award, clause 10.4(c)(iii).
400 SCHADS Award, clause 10.4(c)(ii).
401 SCHADS Award, clause 25.5(f).
402 ASU Submission, 18 February 2019 at para 24.
403 ASU Submission, 18 February 2019 at para 30. 






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to fix the problem in different ways. Finally, the ASU submits that if we were not minded to 
make the variations they seek, then the ASU would support either one of the variations 
proposed by the other Unions. 

B Employer submissions

(iii) ABI

[431] ABI does not cavil with the proposition that ‘there is likely to be a degree of disutility 
associated with working a broken shift for some employees’.404 ABI accepts that the 
SCHADS Award requires amendment to ensure that employees are not exposed to practices 
which do not provide them with a fair and relevant safety net of terms and conditions; but 
does not accept that there is any need to materially alter the broken shifts provision. ABI 
submits that the issues identified by the Unions can be rectified by:

 making some modest adjustment to the broken shifts provision

 addressing the concerns around travel time, and

 introducing appropriate minimum engagements for part-time employees.

[432] We deal elsewhere with ABI’s proposal in respect of minimum engagement and travel 
time. 

[433] In the context of the broken shifts provision ABI does not oppose:

 the introduction of a requirement that broken shifts only be worked where there is 
mutual agreement between the employer and individual employee, and

 the existing payment under clause 25.6(b) being varied such that the applicable shift 
allowances be determined by either the starting time or the finishing time of the 
broken shift, whichever is the greater.405

[434] In relation to the other elements of the HSU’s broken shifts claim, ABI opposes the 
proposal to impose a limit of 1 break per broken shift such that a broken shift cannot consist 
of more than 2 portions of work on the basis that such a variation would:

 reduce operational flexibility and prevent employers from having employees work a 
broken pattern of work across the course of a day to meet customer needs, and

 be likely to have the effect of reducing the number of hours of work that employers 
can offer to employees, thereby reducing their hours of work and take home pay.

[435] ABI also opposes the introduction of a 15% loading to be paid when employees work 
a broken shift.

                                               

404 ABI Submission, 12 July 2019 at para 7.34. 
405 ABI Submission, 19 November 2019 at para 6.6.






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[436] In respect of part-time employees, ABI submits that the alleged ‘disutility’ of working 
broken shifts needs to be assessed against the requirement at clause 10.3(c) that their pattern 
of work be agreed in writing on commencement of employment. In light of that existing 
protection, it is submitted that any disutility arising from a broken shift is mitigated by the 
employee having agreed on commencement of employment to the pattern of work and by 
having advance notice of that fixed pattern of work.

(iv) NDS

[437] NDS submits that current clause 25.6 and the restrictions imposed by clause 10.3(c) in 
setting the hours of work of part-time employees provides significant protection for part-time 
employees in relation to the predictability of their hours of work. Further, casual employees 
receive a casual loading in compensation for irregular hours of work.

[438] NDS opposes the detail of most of the Union claims relating to broken shifts but 
accepts that an appropriate balance must be struck between the flexibility needed in order to 
deliver services in the context of tight pricing and the need for employees to have some level 
of stability in their employment. 

[439] NDS submits that the proposal to restrict broken shifts to 2 portions of work and one 
‘break’ is an unnecessary restriction that would impact on the ability of participants to 
schedule supports for when they need them throughout the day.  

[440] NDS opposes the ASU’s claim for a 15% additional loading, ‘particularly in the 
context of the tight pricing arrangements that affect provision of disability services’ and 
submits that the quantum of the loading is ‘out of kilter’ with the provisions of other awards 
that deal with broken shifts. 

[441] As to the proposal that broken shifts only be worked by mutual agreement, NDS 
submits that such a change is not necessary given the requirements of clause 10.3 in relation 
to part-time employment, and the provisions of clause 25.5 in relation to rosters; but does not 
oppose the proposal. 

[442] NDS does not oppose the UWU proposal to provide that any shift penalty be 
determined by the starting or finishing time of the broken shift, whichever is highest.

(v) Business SA

[443] Business SA opposes the proposition that broken shifts only be worked by agreement 
and the proposal that broken shifts be limited to only 1 break.406

[444] Business SA also opposes the claim for a 15% broken shift loading submitting that the 
claimed loading is ‘significantly higher than any other industry’.407

(vi) AFEI

                                               

406 Business SA Submission, 12 July 2019 at paras 44 and 46.
407 Business SA Submission, 12 July 2019 at para 42.






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[445] AFEI opposes any variation in respect of broken shifts and submits that the current 
clause 25.6 formed part of the SCHADS Award when it was made by the Award 
Modernisation Full Bench and that it was inserted to specifically address the needs of the 
disability services and home care industries. 

[446] AFEI opposes the HSU and UWU claims to vary clause 25.6(b) to provide that shift 
allowances are determined by the ‘starting or finishing time of the broken shift, whichever 
allowance is higher’ (change proposed as underlined). AFEI contends that the shift penalties 
applicable to broken shifts were the subject of consideration during the Transitional Review 
and that that position ‘should not be departed from unless there has been a material change in 
circumstances since that time’.408 We deal with this submission later. 

[447] In essence AFEI submits that the existing arrangements for broken shifts are 
appropriate for the industry; the claims would increase employers’ cost and administrative 
burden and could adversely impact on service delivery; and the limited nature of the evidence 
does not establish the merit basis required to vary the SCHADS Award.409

[448] AFEI also opposes the variations proposed by ABI and NDS. AFEI submits that the 
introduction of a requirement that broken shifts only be worked by mutual agreement is 
‘inappropriate’ in circumstances where broken shifts are ‘a standard arrangement in the 
industry’.410

(vii) Ai Group

[449] Ai Group opposes the various Union claims to vary the current broken shift 
arrangements (including those proposals which are not opposed by ABI and NDS). We note 
that there is some overlap between the points advanced by AFEI and those put by Ai Group. 

[450] As to the HSU/UWU proposal to vary the application of shift allowances to broken 
shifts, Ai Group submits that a case for varying the current arrangements has not been made 
out.411 Further, Ai Group submits that there is no statutory imperative to provide additional 
remuneration to employees working shifts. 

[451] Ai Group opposes the introduction of a requirement that broken shifts only be worked 
by mutual agreement and submits that the proposal ‘has the potential to significantly disrupt 
current employment practices in the sector [and] would significantly undermine the utility of 
the broken shift provisions’.412

5.3.4 The Evidence

[452] In our view the evidence supports the following findings:

                                               

408 AFEI Submission, 19 November 2019 at para 119.
409 AFEI Submission, 16 February 2020 at paras 1.33(a)(i), 1.34; AFEI Submission, 23 July 2019 at paras 123 – 125; AFEI 

Submission, 19 November 2019 at para B.5.
410 AFEI Submission, 11 February 2020 at para 2.30(2).
411 Ai Group Submission, 13 July 2019 at paras 283 – 284 and 287.
412 Ai Group Submission, 13 July 2019 at para 290 – 294.  






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1. Broken shifts are commonly utilised by employers covered by the SCHADS 
Award and there is a very high incidence of broken shifts in the home care and 
disability services sectors.413

2. It is the preferred practice of some employers to roster on the basis that there is
only 1 break in any shift (unexpected client cancellation being the main reason 
to depart from this practice).414 Further, it is the practice of some employers to 
pay a broken shift allowance;415 other employers only have employees work a 
broken shift by agreement.416

3. Most broken shifts involve 2 portions of work and 1 break.417  Occasionally 
broken shifts involve more than 1 break.418

4. Broken shifts can cover a significant span of hours (up to 12 hours) which can 
include a substantial amount of ‘unpaid time’.

5. Where broken shifts are worked, there is significant variation in the duration of 
the break period.  Some broken shifts involve a break period of less than 1 
hour, while other broken shifts involve a break period of 6-8 hours.

6. During breaks in a broken shift, employees sometimes spend time at home or 
undertaking non-work related activities.419 On other occasions a considerable 
proportion of the period of the break is used in undertaking unpaid travel or the 
duration of the break is insufficient to enable the employee to engage in other 
meaningful activity.

7. As mentioned earlier, employees report a range of adverse consequences with 
working broken shifts with short engagements and unpaid travel time (see 
finding 6 above at [232] above).

                                               

413 Exhibit HSU26 – Witness Statement of Robert Sheehy, 15 February 2019 at para 7; Exhibit HSU5 – Witness Statement of 

Christopher Friend, 15 February 2019 at para 49; Exhibit HSU30 – Witness Statement of James Eddington, 15 February 

2019 at para 23; Exhibit ABI9 – Witness Statement of Joyce Wang, 12 July 2019 at paras 65 – 67; Exhibit ABI3 –
Witness Statement of Jeffrey Wright, 12 July 2019 at para 44; Exhibit ABI8 – Witness Statement of Wendy Mason, 17 

July 2019 at para 67; Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at paras 13 -15; Exhibit UV4 –

Witness Statement of Deon Fleming, 16 January 2019 at paras 18 - 21.
414 Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at para 45; Transcript, 18 October 2019, cross-

examination of Deborah Ryan at PN3086-3092; Exhibit ABI8 – Witness Statement of Wendy Mason at para 72.
415 Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at para 46. 
416 Exhibit ABI8 - Witness Statement of Wendy Mason, 17 July 2019 at para 69. 
417 Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at para 45.
418 Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at para 45; Exhibit ABI8 – Witness Statement of 

Wendy Mason at para 72.
419 Exhibit HSU28 – Witness Statement of Thelma Thames, 15 February 2019 at para 15; Exhibit HSU31 – Witness 

Statement of Scott Quinn, 16 December 2019 at para 29; Exhibit HSU32 – Supplementary Witness Statement of Scott 
Quinn, 3 October 2019 at paras 10, 21, 27 – 28; Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at 

paras 6, 7 and 9; Transcript, 15 October 2019, cross-examination of Trish Stewart at PN461, PN464, PN525 and PN527; 

Transcript, 16 October 2019, cross-examination of Robert Steiner at PN1570 and PN1572; Transcript, 18 October 2019, 

cross-examination of Joyce Wang at PN3537. 






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[453] In relation to finding 3 above, the finding is similar in terms to a proposed finding 
advanced by ABI;420 ABI’s proposed finding was not opposed by the NDS but was opposed 
by other parties, in particular by the Unions and Ai Group.

[454] The Unions’ opposition to ABI’s proposed finding was not the subject of much 
elaboration.421 For its part, Ai Group submits – contrary to the position advanced by ABI –
that the evidence does not establish that most broken shifts in the disability sector involve 2
portions of work and one break, or that it is only occasionally necessary for a broken shift to 
include more than 1 break.422 Ai Group refers to the following parts of the evidence in support 
of its contention:423

 in an article attached to the statement of Dr Macdonald, which reported the results 
of qualitative research undertaken in respect of 10 disability support workers, the 
authors identified that over a period of 30 working days, ‘the 10 [disability support 
workers] worked between one and 5 separate shifts per day’.424 This amounts to up 
to 4 breaks per day

 Mr Friend gave evidence that the HSU’s members have reported having ‘up to four 
or five breaks’425

 Mr Quinn gave evidence that ‘a typical day of shifts’ in his employment involved 3 
breaks over the course of a day426

 Exhibit AIG1 (an employee roster during the period of 4 May 2018 – 21 September 
2018) demonstrates an employee was from time to time required to perform a series 
of engagements during a day with up to at least 4 breaks in between, and

 Ms Stewart described a ‘typical day’ for her as including 5 breaks between a series 
of engagements.427

[455] AFEI’s submissions rely on the same evidentiary foundation. 

[456] In short, Ai Group relies on the evidence of 4 individual employees; the hearsay 
evidence of Mr Friend and the Macdonald article which examined the working arrangements 
of 10 disability support workers over a period of 30 working days. As mentioned earlier, it is 
somewhat paradoxical that Ai Group relies on the Macdonald article for this purpose while 
advancing the general submission that we should afford only negligible weight to the article. 

[457] In contrast ABI relies on 3 employer witnesses (Mr Wright, Ms Mason and Mr Miller) 
who gave evidence about the operation of broken shifts in the enterprises in which they 

                                               

420 ABI Submission, 19 November 2019 at para 6.13.
421 Joint Union Submission, 10 February 2020 at para 200. 
422 Ai Group Submission, 10 February 2020 at para 135.
423 Ai Group submission, 18 November 2019 at para 26.
424 Exhibit HSU25 – Witness Statement of Fiona Macdonald, 15 February 2019 at Annexure FM-2.
425 Exhibit HSU5 – Witness Statement of Christopher Friend, 15 February 2019 at para 27.
426 Exhibit HSU31 – Witness Statement of Scott Quinn, 16 December 2015 at para 27.
427 Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 15. 






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worked – HammondCare, Baptist Care and the Endeavour Foundation. Collectively these 
enterprises employ some 6,442 employees in the relevant sectors. 

[458] Mr Wright is the People Services Operations Manager for HammondCare. 
HammondCare operates in the social, community home care and disability services industry 
and employs about 4,000 employees. HammondCare engages employees on broken shifts and 
in his statement Mr Wright notes that ‘broken shifts are inevitable with ever changing client 
needs and staff absences’.  In one month, in May 2019, HammondCare engaged employees on 
4,216 broken shifts. As to the nature of the broken shifts rostered by HammondCare, Mr 
Wright says:

‘There are very few shifts that exceed two portions per day, however with client cancellations, 
sometimes they are necessary.’428

[459] Ms Mason is the Operations Manager for the Services (Baptist Care at Home)
Division (Baptist Care), which employs about 1,182 employees.429 Baptist Care engages 
employees to work broken shifts.430 In one month, May 2019, 1,591 broken shifts were 
worked by the company’s home care employees. In her statement, Ms Mason says:

‘These shifts are necessary in order to offer clients the flexible services that they request.’431

[460] Baptist Care’s home service rostering guidelines and procedures ‘aim to minimise the 
number of breaks (and hence work periods) during the broken shifts’.432 At [72] of her 
statement, Ms Mason says:

‘Employees will only be scheduled to work more than two portions (or work periods) during the 
broken shift where no other option exists… it is usually out of necessity to meet our clients’ 
needs.’433

[461] Ms Mason provided a Supplementary Statement dated 25 November 2019 in response 
to questions raised by the Commission during the Hearing of 8 October 2019.434

[462] The spreadsheet attached to Ms Mason’s Supplementary Statement provides data on 
broken shifts worked in the Home Service division of Baptist Care.435 In September 2019 
there were 1,452 broken shifts worked (about 10% of all shifts worked in September 2019). 
Of those 1,452 broken shifts:

 1,189 had 1 ‘break’ (that is only 2 separate periods of work)

 231 had 2 ‘breaks’

                                               

428 Exhibit ABI3 - Witness Statement of Jeffrey Wright, 12 July 2019 at para 45.
429 Exhibit ABI8 - Witness Statement of Wendy Mason, 17 July 2019 at para 20. 
430 Exhibit ABI8 - Witness Statement of Wendy Mason, 17 July 2019 at para 66.
431 Exhibit ABI8 - Witness Statement of Wendy Mason, 17 July 2019 at para 67.
432 Exhibit ABI8 - Witness Statement of Wendy Mason, 17 July 2019 at para 70.
433 Exhibit ABI8 - Witness Statement of Wendy Mason, 17 July 2019 at para 72.
434 Transcript, 18 October 2019, cross-examination of Wendy Mason at PN3187 and PN3313-PN3317.
435 Supplementary Statement of Wendy Mason, 25 November 2019.






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 28 had 3 ‘breaks’, and

 3 had 4 ‘breaks’.

[463] Hence over 80% of the broken shifts worked in September 2019 only had 1‘break’ and 
almost 98% had only 1 or 2 breaks. 

[464] Mr Miller is the Head of Operations, Service Delivery for the Endeavour Foundation. 
The Endeavour Foundation employs 1,260 support workers. Mr Miller provided a 
Supplementary Statement dated 19 November 2019 in response to questions raised by the 
Commission during his oral evidence.436 In his Supplementary Statement Mr Miller sets out 
an analysis of 2,000 separate actual shifts worked by support workers over a roster period. Of 
those 2,000 shifts, 746 were broken shifts. Of the 746 broken shifts:

 668 had 1 ‘break’, of over 1 hour in duration, and

 78 had 2 ‘breaks’, each of over 1 hour in duration.

[465] Hence, 90% of the broken shifts in this roster period had only 1 ‘break’ of over an 
hour in duration. 

[466] We have considered the Unions’ critique of the data presented in Mr Miller’s 
Supplementary Statement in the Joint Unions’ submission of 10 February 2020437 and the 
NDS response to that critique.438 In our view the data in Mr Miller’s Supplementary 
Statement supports the observations made above. 

[467] In short, the evidence upon which ABI relies is more cogent and comprehensive than 
the evidence upon which Ai Group relies. The evidence of the ABI witnesses supports finding 
3 above (at [452] above) and we reject the contrary contention advanced by Ai Group and 
others. 

5.3.5 Consideration

A General

[468] We begin by considering the current regulation of broken shifts in the SCHADS 
Award. 

[469] A number of the employer parties point to certain limitations and what are said to be 
‘safeguards’ in the current broken shifts term, in particular: 

                                               

436 Joint Union Submission, 10 February 2020. Also see Transcript, 17 October 2019, cross-examination of Steven Miller at 
PN2054-PN2057 and PN2082.

437 Joint Union Submission, 10 February 2020 at paras 63 – 64.
438 NDS Submission, 26 February 2020 at paras 16 – 19.






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 clause 25.6 is limited in its application – it only applies to social and community 
services employees when undertaking disability services work, and home care 
employees

 clause 25.6(b) regulates the way shift allowances are payable under clause 29, in the 
context of a broken shift

 double time rates must be paid for all work performed beyond the maximum span of 
12 hours (clause 25.6(c)), and

 employees must receive a minimum break of 10 hours between broken shifts 
rostered on successive days (clause 25.6(d)).

[470] We accept that there is a need to permit and regulate the operation of broken shifts in 
respect of social and community services employees undertaking disability services work and 
home care employees. But we are not satisfied that the current ‘limitations’ and ‘safeguards’ 
are adequate. As mentioned earlier, the SCHADS Award is less beneficial to employees than 
the broken shift provisions in a significant number of awards (see [404] – [408]). In its current 
form clause 25.6 is not a fair and relevant safety net term. 

[471] In section 5.2 we decided to vary the minimum payment term for part-time and casual 
employees. 

[472] As we mentioned, Ai Group opposed any variation to the SCHADS Award in respect 
of minimum engagements; but, in response to the NDS 2 hour minimum engagement 
proposal, Ai Group advanced the following, alternate, submission:

‘There may be merit in giving consideration to a two hour minimum engagement that can be 
apportioned in accordance with the broken shifts provisions in the context of broader 
consideration also being given to the current restrictions applying to part-time employment in 
clauses 10.3(c) and 25.5. Given the inherent interconnectedness of this issue with various other 
claims advanced by the unions, including the imposition of greater restrictions on the 
performance of broken shifts and payment for time spent travelling, any consideration of this 
issue should be undertaken in the broader context of those claims also.’439

[473] We agree with the second sentence in the above quote – the issues of minimum 
engagement, travel time and broken shifts are inter-related, and we have treated them so.

[474] It is not entirely clear what Ai Group is suggesting by the apportionment of a 2 hour 
minimum engagement. If it is suggested that the 2 hour minimum engagement may be met by 
cumulating the periods of work performed during each part of a broken shift, then we reject 
that proposition, it would substantially undermine the purpose of the minimum payment term. 
We note that we reached a similar conclusion in the Aged Care Substantive Claims Decision
(discussed at [282] – [285] above). 

[475] A 2 hour minimum payment period will apply to each part of a broken shift. This is 
made clear in new clause 10.5.

                                               

439 Ai Group Submission, 10 February 2020 at para 143.






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[476] The various claims in respect of broken shifts address 3 central issues: 

 the number and duration of ‘breaks’ per shift 

 the requirement for mutual agreement, and

 payment. 

B The number and duration of breaks per shift

[477] Clause 25.6(a) expressly states that a broken shift may include ‘one or more breaks 
(other than a meal break)’. 

[478] The HSU and UWU seek to vary clause 25.6 such that a broken shift is defined, in 
essence, as a shift where the employee performs work in 2 separate periods of duty with a 
single ‘break’ (other than a meal break). Further, the UWU claim provides that the ‘break’ 
between periods of work must exceed 1 hour. 

[479] In support of their claim the Unions point to the disutility experienced by employees 
working broken shifts involving multiple breaks between engagements. Some employees 
reported working a series of engagements during a day with 4 or 5 breaks in between. 

[480] The employer parties oppose the restriction of broken shifts to 2 separate periods of 
duty with a single ‘break’, essentially on the basis that such a change would reduce 
operational flexibility and impact their capacity to schedule work in response to client needs. 

[481] The evidence establishes that most broken shifts covered by clause 25.6 involved 2 
portions of work and 1 ‘break’; occasionally broken shifts involve more than 1 break.

[482] In opposing this element of the Unions’ claim Ai Group advances the following 
submission:

‘Ai Group has received very strong feedback from industry that the removal of this flexibility 
would have a devastating impact on their operations and ability to viably meet the needs of the 
clients they service. This is particularly so in the context of the disability and home care 
sectors.’440

[483] Two things may be said about this submission. First, the proposition that the impact of 
such a change would be ‘particularly’ felt in the disability and home care sectors is 
superfluous – it is obvious that the impact will be felt in those sectors; as we have mentioned, 
the Award term only applies to work performed in those sectors. 

[484] The second, more significant problem with the submission put concerns the statement 
that Ai Group has received ‘very strong feedback from industry’ that restricting broken shifts 
to one ‘break’ would have a ‘devastating impact on their operations’ and affect the service to 
their clients. Ai Group advances no evidence in support of the asserted ‘strong feedback’.  

                                               

440 Ai Group Submission, 13 July 2019 at para 272. 






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Indeed, Ai Group chose to call no evidence at all in the proceeding in respect of this issue or 
any of the claims before us. In relation to this issue there is no evidence as to: 

 which enterprise(s) provided the feedback and to whom

 the particulars of the ‘devastating impact on their operations’, or

 any financial or other data supporting the proposition that such a variation would 
impact on their ability to ‘viably meet the needs of the clients they service’. 

[485] The absence of such evidence makes it impossible to effectively challenge the Ai 
Group’s assertion. In the circumstances it would be unfair to place any reliance on this 
submission and we propose to give it no weight. 

[486] We accept that restricting broken shifts to 2 portions of work with 1‘break’ will reduce 
operational flexibility; but the extent of any adverse consequence is overstated. As we have 
mentioned, the evidence is that most broken shifts in the relevant sectors involve 2 portions of 
work and 1 ‘break’; it is only occasionally that broken shifts involve more than 1 break. 

[487] Further, the adverse impact on employees (or disutility) of multiple breaks in a broken 
shift is likely to be greater than a single break between 2 portions of work. Multiple breaks 
between engagements are likely to result in increased ‘dead time’; time for which employees 
are not paid. 

[488] In the circumstances of the SCHADS Award the merits weigh in favour of varying 
clause 25.6 to define a broken shift as a shift consisting of 2 separate periods of work with a 
single unpaid ‘break’ (other than a meal break). However, we also think that provision should 
also be made to accommodate the occasional need for a broken shift to involve more than 1 
unpaid break. We would be prepared to permit such an occurrence subject to: 

 a maximum of 2 unpaid ‘breaks’ in the shift 

 a 2 break shift would be subject to the agreement of the employee, on a per 
occasion basis, and

 a 2 break shift would be subject to a higher payment than payable for a 1 break 
shift, in recognition of the additional disutility. 

[489] The additional payment should be included as an allowance payable where there are 2 
‘breaks’ in the shift (see [554]). 

[490] Before we turn to the s.134 considerations, we wish to clarify how the minimum 
payment period in new clause 10.5 will interact with these limits on the number of permitted 
breaks in a broken shift.

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

A part-time home care employee agrees to work a broken shift with 2 breaks on a 
Wednesday. 

This means that the employee must receive a minimum payment of 6 hours (new 
clause 10.5).

The employee is rostered to work the 3 periods of work commencing at 9.00 am, 12.30 
pm and 4.30 pm, respectively. 

During the first period of work, the employee:

 attends to a client at home from 9.00 am to 9.30 am

 travels 30 minutes to a second client arriving at 10.00 am, and

 spends 1 hour with the second client finishing at 11.00 am.

The employee spends 1.5 hours of the first period of work working with clients and 30 
minutes travelling. The employee must be paid for 2 hours of work. 

The employee then has a break of 1.5 hours until the next period of work starts at 
12.30 pm.

During the second period of work, the employee:

 works with a single client from 12.30 pm to 2.30 pm

 the employee will be paid for 2 hours of work, and

 the employee then has a break of 2 hours before the next period of work starts at 
4.30 pm. 

During the third period of work, the employee:

 attends to a client at home from 4.30 pm to 6.00 pm

 travels 15 minutes to another client arriving at 6.15 pm, and

 spends 2 hours working with the client and finishes at 8.15 pm.

The employee is paid for 3.75 hours for this period. Because the shift finishes after 
8.00 pm, the employee will be paid at the overtime rate for the period from 8.00 pm to 
8.15 pm. 

The broken shift is worked over 11.25 hours, within the 12 hour span. 

Over the course of the shift the employee will be paid:

 7.5 hours at the applicable ordinary hourly rate

 0.25 hours at the overtime rate of time and a half (for work performed after 8.00pm)

 the 2 break broken shift allowance, and

 any other allowances to which the employee is entitled.

[492] We now turn to deal with the s.134 considerations. 








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[493] Section 134(1)(a) of the Act requires that we consider ‘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). A 
proportion of employees covered by the SCHADS Award may be regarded as ‘low paid’ 
within the meaning of s.134(1)(a) of the Act. 

[494] The low paid will be better able to meet their needs if the proposed variation is made.

[495] The ‘needs of the low paid’ is a consideration which weighs in favour of the variation 
we propose to make.

[496] Section 134(1)(b) requires that we consider ‘the need to encourage collective 
bargaining’. We are not persuaded that the proposed variation to clause 25.6 would 
‘encourage collective bargaining’, it follows that this consideration does not provide any 
support for such a change. 

[497] Section 134(1)(c) of the Act requires that we consider ‘the need to promote social 
inclusion through increased workforce participation’. Obtaining employment is the focus of 
s.134(1)(c). 

[498] The impact of the proposed variation on total employment is not likely to be 
significant. We regard this consideration as neutral. 

[499] It is convenient to deal with the considerations ss.134(1)(d) and (f) together. 

[500] The proposed variation will result in a change in rostering practices for some 
employers; it will limit flexibility in the rostering of employees and is likely to increase 
employment costs. 

[501] The considerations in s.134(1)(d) and (f) weigh against the variation we propose.

[502] The consideration in s.134(1)(da) of the Act is addressed in further detail at [544] –
[545]. For the present purposes we note that the variation we propose will provide additional 
remuneration for employees working unsocial hours.

[503] The considerations in s.134(1) (e), (g) and (h) are not relevant in the present context. 

[504] 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 ss.134(1)(a)–(h) of the Act. We have taken into 
account those considerations insofar as they are presently relevant and have decided to vary 
the SCHADS Award as proposed at [488] above. 

[505] As to the UWU’s claim that the SCHADS Award be varied to specify that the ‘break’ 
in the broken shift ‘must exceed one hour’, a cogent merit basis for the claim has not been 
made out. The evidence suggests considerable variability in the duration of the break in the 
context of the current SCHADS Award terms. We propose varying those terms – to vary the 
minimum payment clause and to limit the number of unpaid breaks in a broken shift. We 
expect that these variations will change rostering practices, including the duration of a ‘break’ 
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premature. The issue can be revisited after the changes we will make have been in operation 
for at least 12 months. 

C A requirement for mutual agreement

[506] The HSU seeks to vary clause 25.6 to provide that a broken shift may only be worked 
‘where there is mutual agreement between the employer and employee.’

[507] ABI does not oppose the introduction of such a requirement. 

[508] NDS does not oppose this aspect of the HSU’s claim but submits that the change is not 
necessary given the requirements of clause 10.3 in relation to part-time employment. 

[509] AFEI and Ai Group oppose the introduction of a requirement that broken shifts only 
be worked by mutual agreement. AFEI submits that such a variation is inappropriate given the 
prevalence of broken shifts in the industry.

[510] Ai Group submits that it is unclear whether the variation proposed would require 
agreement to be reached in relation to each broken shift or whether it would be sufficient for 
an employer to obtain agreement once and then roster the employee on broken shifts on an 
on-going basis. We agree that the proposed term is unclear as to how it would operate in 
practice. 

[511] Ai Group raises 2 further points in response to the proposal:441

 if an employee could at any time simply elect to either perform or not perform a 
particular broken shift, it would also undoubtedly complicate rostering 
arrangements and potentially undermine their capacity to align with an employer’s 
operational needs. This would be a particularly problematic development in the 
context of the participant driven dynamics of the NDIS, and

 it is entirely unclear how, from a practical perspective, such a clause could be fairly 
imposed in the context of currently engaged employees. If an employee has been 
engaged on the condition that they work broken shifts (or in circumstances where 
any agreement as to their hours of work reflect the availability of broken shifts), it 
would be patently unfair to invalidate such arrangements and it is foreseeable that in 
some instances the change would jeopardise the ongoing viability of the 
individual’s employment.

[512] As we noted in the Aged Care Substantive Claims Decision, a requirement that broken 
shifts can only be worked by ‘mutual agreement’ is not generally a particularly effective 
protection, especially for casual employees (and as pointed out by NDS, part-time employees 
already have the protection of clause 10.3). 

[513] In these circumstances and having regard to the matters raised by Ai Group, we are not 
persuaded that the change proposed in respect of the default of ‘1 break’ shifts has the 
requisite merit. 

                                               

441 Ai Group Submission, 13 July 2019 at paras 293 – 294. 






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D Payment

[514] Clause 25.6(b) deals with the remuneration paid to employees who work broken shifts, 
it provides: 

‘Payment for a broken shift will be at ordinary pay with penalty rates and shift allowances in 
accordance with clause 29 – Shiftwork, with shift allowances being determined by the 
finishing time of the broken shift.’

[515] The effect of this provision is that an employee working a broken shift is paid a shift 
allowance in accordance with clause 29. The shifts prescribed in clause 29 are as follows:

 afternoon shift (any shift finishing after 8pm and at or before midnight Monday to 
Friday), and

 night shift (any shift finishing after midnight or commencing before 6am Monday to 
Friday).

[516] Clause 29.3 deals with the loadings for various shift types:

 an employee who works an afternoon shift is paid ‘a loading of 12.5% of their 
ordinary rate of pay for the whole of such shift’, and

 an employee who works a night shift is paid ‘a loading of 15% of their ordinary rate 
of pay for the whole of such shift’.

[517] The HSU and UWU seek to vary clause 25.6(b) so that the shift allowance payable to 
an employee working a broken shift is determined by ‘the starting or finishing time of the 
broken shift, whichever allowance is higher’ (emphasis added). The ASU seeks an additional 
loading of 15% for the duration of the shift.

[518] As we have mentioned, all the employers oppose the ASU’s claim for a 15% loading.
ABI and NDS do not oppose the variation of clause 25.6(b) so that the applicable shift 
allowances are determined by either the starting time or the finishing time of the broken shift, 
whichever is greater. AFEI and Ai Group oppose any change to broken shift payments.

[519] AFEI submits that clause 25.6(b) was considered during the Transitional Review and 
should not be varied ‘unless there has been a material change in circumstances since that 
time’.442 Two things may be said about this submission.

[520] First, implicit in the AFEI submission is the notion that to enliven our discretion to 
vary a modern award we must first be satisfied that there has been a material change in 
circumstances since the relevant issue was last considered by the Commission.

[521] A similar proposition was advanced by the Unions in the Penalty Rates Case. In 
rejecting that proposition the Full Bench said:

                                               

442 AFEI Submission, 23 July 2019 at paras 118 – 120.






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‘[234] Section 156 sets out the requirement to conduct 4 yearly reviews of modern awards 
and what may be done in such reviews

…

[244] Section 156 clearly delineates what must be done in a Review, what must not be done 
and what may be done…

[263] In our view there is no warrant in the text of the section for the importation of a 
material change in circumstances test. … The Unions’ proposition would place a constraint on 
the discretion conferred by s.156(2)(b)(i) which is not warranted by the terms of s.156 or the 
relevant statutory context and purpose. The Commission must assess the evidence and 
submissions in support of an award variation against the statutory tests, principally whether 
the award provides a fair and relevant minimum safety net of terms and conditions and 
whether the proposed variation is necessary in order for the award to achieve the modern 
awards objective. The proposition advanced by the Unions would preclude the Commission 
from varying a modern award where the Commission was satisfied that the award was not 
meeting the modern awards objective, unless there was a material change in circumstances. 
This would be inconsistent with s.138 of the FW Act and could not have been intended.

[264] The adoption of the proposed ‘material change in circumstances test’ would obfuscate 
the Commission’s primary task in the Review of determining whether the modern award 
achieves the modern awards objective. To adopt such a test would be to add words to the text 
of s.156 in circumstances where it is not necessary to do so in order to achieve the legislative 
purpose…’443

[522] In the subsequent judicial review application, the Full Federal Court also rejected the 
‘material change in circumstances test’:

‘The applicants contend that the FWC misconstrued its powers under ss 156(1) and (2) of the 
Fair Work Act by exercising the power to make a determination to vary the awards without 
having satisfied itself that, since the making of the awards the subject of the review or the last 
review of them, there had been a material change in circumstances such that the award, in each 
case, no longer met the “modern awards objective”...

The applicants put the same argument to the FWC, that is, the FWC had no power to make a 
determination to vary the awards without having satisfied itself that there had been a material 
change in circumstances such that the award in each case no longer met the “modern awards 
objective”. The FWC rejected the argument in the primary reasons at [230]-[268]. In short, the 
FWC considered that a determination varying an award may be warranted if it is established 
that there has been a material change in circumstances since the making of the award under 
review, but the FWC’s power to do so is not conditioned on it being satisfied that there has 
been such a change in circumstances. 

The FWC’s conclusion in this regard is correct.’444

                                               

443 Penalty Rates Case at [234], [244] and [263] – [264].
444 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [16], [23] –

[24].






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[523] Second, as we have said earlier, in conducting the Review the Commission considers
previous decisions relevant to any contested issue – including Transitional Review decisions. 
The extent of the evidence and submissions put in the previous proceedings is relevant to the 
weight we give to that decision.

[524] The Transitional Review proceeding to which AFEI refers consisted of a conference 
convened by Senior Deputy President Kaufman to deal with a union proposal to vary clause 
25.6(b). The conference subsequently led to a consent variation determination. The variation 
determination was not the subject of a hearing, no evidence was adduced, and the Senior 
Deputy President gave no reasons for his decision. In these circumstances we propose to give 
no weight to those proceedings. We reject AFEI’s submission that clause 25.6(b) not be 
varied unless there has been a material change in circumstances.

[525] We turn first to the ASU’s claim. The ASU seeks to vary clause 25.6(b), as follows: 

‘(b) An employee who works a broken shift will receive: 

(i) Payment for a broken shift will be at oOrdinary pay plus a loading of 15% of their 
ordinary rate of pay for each hour from the commencement of the shift to the 
conclusion of the shift inclusive of all breaks; and 

(ii) with penalty rates and shift allowances in accordance with clause 29—Shiftwork, 
with shift allowances being determined by the finishing time of the broken shift.’ 
(proposed variation in underlined text)

[526] The ASU has not identified the reasoning or logic underpinning the quantum of the 
loading proposed. 

[527] The 15% loading sought by the ASU to be paid is not limited to each hour worked 
during a broken shift, but is expressed to apply to the entire duration of the broken shift from 
commencement of the first portion of work to the cessation of the final portion of work 
(inclusive of breaks). Further, the loading is proposed to be payable in addition to the existing 
requirement that shift allowances be payable in accordance with clause 29, determined by the 
finishing time of the broken shift.

[528] It is not appropriate that a 15% loading be applied in addition to the existing penalty 
rates and shift allowances. Nor is it fair or reasonable that the 15% loading be payable in 
respect of the entire duration of the broken shift from commencement of the first portion of 
work to the cessation of the final portion of work (inclusive of breaks and unpaid non-
working time). It is plainly unreasonable to require an employer to pay a 15% loading in 
respect of, say, a 12-hour span, in circumstances where the employee may not be working for 
up to 8 hours of that period.

[529] The ASU’s claim lacks merit. We reject the claim. 

[530] We now turn to the claim by the HSU and UWU to vary clause 25.6(b) so that the 
applicable shift allowance is determined by the start or finishing time, whichever is higher. 
The HSU seeks to replace the current clause 25.6(b) with the following:

‘(f) In addition to the rates at 14.4(d) penalty rates and shift allowances in accordance with 
clause 29 – Shiftwork and clause 28 – Overtime apply. 








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(g) Shift allowance will be determined by the starting or finishing time of the broken shift 
whichever allowance is higher. The allowance will apply across both parts of the 
shift.’ 

[531] ABI and NDS do not oppose the variation sought by the HSU and UWU. AFEI and Ai 
Group oppose the claim. 

[532] Clause 25.6(b) provides that the payment of a shift allowance specified in clause 29 is 
determined by the ‘finishing time of the broken shift’. Fixing the quantum of the broken shift 
allowance to the finishing time of the shift (as is currently the case – clause 25.6(b)) gives rise 
to some curious results. 

[533] As the UWU points out, under the current term an employee who commenced a 
broken shift at 5am and finished at 3pm would not receive any shift loading. No other party 
challenged the accuracy of the example provided.

[534] Ai Group submit that there is ‘nothing anomalous about such an outcome’, because:

‘There is no ‘early morning’ shift allowance payable under the Award and a shift that ends at 
3pm would never attract an additional loading as it would not constitute either an afternoon or 
night shift under the Award.’445  

[535] We disagree. A broken shift allowance is intended to compensate employees for the 
disutility of working a broken shift. The way the current term operates means that some 
employees who work broken shifts will receive no additional remuneration to compensate for 
the associated disutility. Such an outcome is anomalous; and wrong in principle. 

[536] Ai Group also points to 2 other difficulties with the claim:446

 the proposed clauses cannot sensibly be applied given that the definitions for an 
afternoon or night shift under the SCHADS Award operate by reference to the 
finishing time for the shift; they do not contemplate the starting point, and

 such a variation would operate unfairly and unjustifiably to the benefit of an 
employee in all instances. 

[537] The first point is incorrect. Clause 29.2(b) defines a night shift as ‘any shift which 
finishes after 12 midnight or commences before 6.00am Monday to Friday’. Ai Group’s 
second point was not the subject of much elaboration. It is not apparent to us how the 
proposal can be said to unjustifiably benefit employees in all instances. 

[538] It seems to us that there is a more significant, conceptual issue with the proposal (and 
with the current SCHADS Award term). 

                                               

445 Ai Group Submission, 13 July 2019 at para 287. 
446 Ai Group Submission, 13 July 2019 at paras 283 – 284.






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[539] As mentioned earlier, broken shift allowances compensate employees for the disutility 
of working broken shifts. Both the current SCHADS Award term and the Unions’ proposed 
variation operate such that the additional payment for a broken shift and the quantum of that 
payment depend on the start/finish time of that shift. The HSU points to the anomalous 
outcomes which flow from the current term – some employees receive no additional 
compensation for working a broken shift. It seems to us that the same circumstance may arise 
under the variation proposed by the Unions. For example, under the Unions’ proposal an 
employee who commences a broken shift after 6am and finishes before 8pm receives no 
additional payment for working a broken shift. 

[540] The entitlement to additional remuneration for working a broken shift should not 
depend on the times at which the shift starts and finishes. It is perhaps for this reason that 
most awards which contain a broken shift allowance express that allowance as a percentage of 
the standard rate (see [406] – [408] above). Indeed, the only 2 modern awards which use the 
shift finishing time to determine the additional remuneration are the SCHADS Award and the 
Aged Care Award. 

[541] We acknowledge that the current method of calculating the broken shift allowance in 
the SCHADS Award is one of long standing. Consistent with the approach generally taken by 
the Award Modernisation Full Bench it may be accepted that the current shift allowance 
methodology reflected the terms in the preponderance of pre-reform instruments. But we are 
not confined by this history and nor are we required to make a decision in the terms applied 
for. 

[542] This proceeding forms part of the Review. As the Full Federal Court observed in Shop, 
Distributive and Allied Employees Association v The Australian Industry Group:

‘The meaning of s 156(2) is clear. The FWC must review all modern awards under s 156(2)(a). 
In that context “review” takes its ordinary and natural meaning of “survey, inspect, re-examine 
or look back upon”. Consequential upon a review the FWC may exercise the powers in s 
156(2)(b). In performing both functions the FWC must apply the modern awards objective as 
provided for in s 134(2)(a).’447

[543] It is convenient to deal now with 2 aspects of the modern awards objective. 

[544] Section 134(1)(da) which requires that we consider the ‘need to provide additional 
remuneration’ for, relevantly, ‘employees working shifts’, was the subject of a number of 
observations by the Full Bench in the Penalty Rates Case as follows:448

‘The expression ‘additional remuneration’ in the context of s.134(1)(da) means remuneration in 
addition to what employees would receive for working what are normally characterised as 
‘ordinary hours’, that is reasonably predictable hours worked Monday to Friday within the 
‘spread of hours’ prescribed in the relevant modern award. Such ‘additional remuneration’ 
could be provided by means of a penalty rate or loading paid in respect of, for example, work 
performed on weekends or public holidays. Alternatively, additional remuneration could be 
provided by other means such as a ‘loaded hourly rate’. 

                                               

447 Ibid at [38].
448 Penalty Rates Case at [192] and [195]-[196].






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… 

Section s.134(1)(da) is a relevant consideration, it is not a statutory directive that additional 
remuneration must be paid to employees working in the circumstances mentioned in 
paragraphs 134(1)(da)(i), (ii), (iii) or (iv). Section 134(1)(da) is a consideration which we are 
required to take into account. To take a matter into account means that the matter is a ‘relevant 
consideration’ in the Peko-Wallsend449 sense of matters which the decision maker is bound to 
take into account. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of 
Taxation: 

‘To take a matter into account means to evaluate it and give it due weight, having 
regard to all other relevant factors. A matter is not taken into account by being noticed 
and erroneously disregarded as irrelevant’.450

Importantly, the requirement to take a matter into account does not mean that the matter is 
necessarily a determinative consideration. This is particularly so in the context of s.134 
because s.134(1)(da) is one of a number of considerations which we are required to take into 
account. No particular primacy is attached to any of the s.134 considerations. The 
Commission’s task is to take into account the various considerations and ensure that the 
modern award provides a ‘fair and relevant minimum safety net’.’451 (footnotes omitted)

[545] We are required to consider the need to provide additional remuneration for working 
shifts. While s.134(1)(da) of the Act is not a statutory directive that additional remuneration 
must be paid; it is a relevant consideration. Neither the current SCHADS Award term nor the 
Unions’ proposal provide additional remuneration to all employees working broken shifts. 

[546] Second, the reference in s.134(1)(g) of the Act to the ‘need to ensure a simple, easy to 
understand, stable and sustainable modern award system’ does not mean that we are 
constrained by the current terms of an award. As the Full Federal Court observed in Shop, 
Distributive and Allied Employees Association v The Australian Industry Group:

‘The reference in s 134(1)(g) to the “need to ensure a simple, easy to understand, stable and 
sustainable modern award system” does not support the applicants. That is a matter which the 
FWC must take into account as part of the modern awards objective. It is thus a matter for the 
FWC to determine the weight to be given to the value of stability in the particular review it is 
conducting, along with the weight to be given to all other matters it must take into account, 
cognisant of its duty (which itself involves an evaluative assessment of potentially competing 
considerations) to ensure that modern awards, together with the National Employment 
Standards, provide the required fair and relevant minimum safety net. It is not legitimate to 
take one element in the overall suite of potentially relevant considerations to the discharge of 
the FWC's functions, such as stability, and discern from that one matter a Parliamentary 
intention that the scheme as a whole is to be construed with that end alone in mind.’452

                                               

449 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
450 (1987) 16 FCR 167 at 184; cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 

499 at [62] and by Katzmann J in Construction, Forestry, Mining and Energy Union v Deputy President Hamberger

(2011) 195 FCR 74 at [103].
451 Penalty Rates Case at [192] and [195]-[196].
452 [2017] FCAFC 161 at [33]. 






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[547] It is our provisional view that the additional remuneration for working a broken shift 
under clause 25.6 of the SCHADS Award should be an allowance calculated as a percentage 
of the standard weekly rate.

[548] The ‘standard rate’ in the SCHADS Award is defined in clause 3 as the minimum rate 
for a social and community services employee level 3 at pay point 3, currently $1006.10.

[549] As mentioned earlier, there is considerable variation in the proportion of the standard 
rate fixed as a broken shift allowance. Fixing the proportion calls for the exercise of broad 
judgment, it is not a matter which lends itself to precise quantification. In fixing the 
proportion for the SCHADS Award we have had regard to the current method – which may 
result in an employee receiving a loading of 15% of their ordinary rate – and to the fact that 
employees do not operate from a base location. As mentioned earlier, employees in home care 
and certain disability services have no ‘base location’ where they start at and finish at each 
day. The work site for such employees is the home of the client, or locations where the client 
may need to be taken (such as medical centres, shopping centres, social events). 

[550] This is relevant because broadly speaking a broken shift allowance compensates for 
2 disutilities:

 the length of the working day being extended because hours are not worked 
continuously, and

 the additional travel time and cost associated with effectively presenting for work 
on 2 occasions. 

[551] As to the second matter, a broken shift of 2 portions of work and a break will usually 
mean that the employee will travel between the end of the first portion of the shift and the 
start of the second. Depending on the duration of the break they may travel home or to the 
location of their next engagement. 

[552] These considerations have led us to the provisional view that we should set the 
proportion of the standard rate in the SCHADS Award towards the upper end of the range of 
other modern awards (and noting that several of the awards discussed at [400] also include 
travel time allowances). 

[553] It is our provisional view that an employee working a broken shift under clause 25.6 
receive a broken shift allowance of 1.7% of the standard rate, per broken shift. At present this
amounts to $17.10 per broken shift. This is the amount payable to any employee who works a 
‘one break’ broken shift.

[554] As mentioned earlier, a 2 break shift would be subject to a higher payment. It is our 
provisional view that the broken shift allowance payable for a 2 break broken shift be set at 
2.5% of the standard rate (or $25.15 per broken shift). This new broken shift allowance will 
replace the current entitlement in clause 25.6(b).

[555] In addition, there is currently a lack of clarity in the SCHADS Award as to when 
overtime is payable in respect of work performed by day workers outside the ordinary span of 
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[556] It is our provisional view that the SCHADS Award should be varied to make clear that 
where an employee who is a day worker (including part-time and casual employees) performs 
work outside of the ordinary span of hours (including as part of a period of work in a broken 
shift), the employee is entitled to overtime for such work.

5.4 TRAVEL TIME CLAIMS

5.4.1 Background – the current SCHADS Award term

[557] Clause 20.5 of the SCHADS Award deals with travelling, transport and fares as 
follows: 

‘20.5 Travelling, transport and fares

(a) Where an employee is required and authorised by their employer to use their motor vehicle 
in the course of their duties, the employee is entitled to be reimbursed at the rate of $0.80 per 
kilometre.

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

(c) Provided that the employee will not be entitled to reimbursement for expenses referred to 
in clause 20.5(b) which exceed the mode of transport, meals or the standard of accommodation 
agreed with the employer for these purposes.

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

[558] It is apparent from the terms of clause 20.5 that it only applies where an employee is 
required and authorised by their employer to use their motor vehicle in the course of their 
duties and, further, the clause only provides for reimbursement of travel expenses and not for 
travelling time.

5.4.2 The Claims

[559] There are 3 claims in respect of travel time. 

[560] The ASU and UWU seek to insert a new award term - clause 25.7 - Travel Time, as 
follows: 453

‘25.7 Travel Time

(a) Where an employee is required to work at different locations they shall be paid at the
appropriate rate for reasonable time of travel from the location of the preceding client to the 

                                               

453 UWU Submission, 1 April 2019 at paras 1 – 11 and draft determination; ASU Submission, 2 July 2019 at paras 1 – 58.






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location of the next client, and such time shall be treated as time worked. The travel allowance 
in clause 20.5 also applies.

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

[561] The HSU’s claim involves 2 variations to the SCHADS award. First, the HSU seeks a 
new subclause 25.6(d) to provide a payment for travel that may be undertaken in the course of 
a break during a broken shift, as follows:

‘25.6 Broken shifts

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

[562] Second, the HSU seeks a new entitlement to a travel allowance for disability support 
workers and home care workers of $0.78 per kilometre in respect of all travel. In particular, 
the HSU seeks to vary clause 20.5(a), as follows:

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

(a) from their place of residence to the location of any client appointment;

(b) to their place of residence from the location of any client appointment;

(c) between the locations of any client appointments on the basis of the most direct available 
route.’ (proposed variation in underlined text)

[563] ABI advances an alternate variation for consideration (see below). 

[564] The submissions and witness evidence relevant to the Union travel time claims are set 
out at Attachment E.

5.4.3 The Submissions

A Union submissions

[565] The ASU relies on its submission dated 2 July 2019 and its submission in reply dated 
2 October 2019.

[566] The UWU relies on its submission dated 15 February 2019, supplementary submission 
dated 1 April 2019 and further submission in reply dated 3 October 2019.

[567] In summary, the UWU contends that: 








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‘Employees in the home care and disability services sector perform travel at the direction of 
their employer in between client locations as a key part of their role. This work could not occur 
without travel. 

Yet, there are employers who engage employees to travel significant distances to and between 
clients without any payment for work directed travel. The employer evidence has not indicated 
that there would be any excessive costs as a result of a travel time clause; rather several 
witnesses noted they already pay for travel time. Service providers are able to include a fee for 
travel time in home care arrangements, and travel time is claimable (within limits) under the 
NDIS and accommodated within government funding for home care packages. 

Regardless of the funding arrangements, travel between and to and from client locations is not 
optional. It is a core requirement of the role of these employees. In the absence of an explicit 
clause on travel time, some employers are shifting these costs onto low paid workers. This is 
inconsistent with a fair and relevant safety net of conditions. 

We do not concede that travel time is not payable under the terms of the current Award and 
have current proceedings on this issue in the Queensland Magistrates Court. These 
proceedings are unresolved and the employer is disputing the claim. Irrespective of the 
outcome of this case, it is still necessary to review and vary the Award’s treatment of work 
related travel as the evidence indicates that there are numerous employers who do not pay 
travel time under the terms of the Award.’454 (footnotes omitted)

[568] The HSU adopts the submissions of the UWU in respect of travel required of 
workers.455

B Employer submissions

(i) NDS

[569] NDS opposes the ASU, UWU and HSU travel time claims and submits that current 
practices with respect to travel undertaken during a broken shift vary but there is evidence that 
some of the time needed for travel between clients is not paid time.

[570] NDS submits that:

‘Travel in the disability sector is often associated with the use of broken shift because in home 
supports are usually only needed for short periods at certain times of the day, such as meal 
times. For example, Robert Steiner gave evidence about the extent of travel in his job. Part of 
his evidence pointed to the importance of ensuring continuity of support for clients with 
psychosocial disability. The consequence was that where a client only needed intermittent 
supports during the day, it was often necessary for the same employee to travel back to provide 
that support in order to avoid the disruptive effect of different workers attending the client.’456

(ii) AFEI

                                               

454 UWU Submission, 18 November 2019 at paras 27 – 30.
455 HSU Submission, 18 November 2019 at para 82.
456 NDS Submission, 19 November 2019 at para 41.






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[571] AFEI opposes the ASU, UWU and HSU travel time claims and relies on its 
submissions of 17 September 2019 and submits further that:457

 not all disability support workers and home care workers are required to travel 
considerable distances during the course of their working days in order to perform 
their work; 

 where employees do travel a considerable distance, such travel is undertaken on an 
irregular basis;

 employees do not always use their breaks to travel from one client to another; and

 an employer has limited control over the time it takes for an employee to get from 
one client to another due to a number of factors including traffic.

(iii) ABI

[572] ABI relies on its reply submission of 13 September 2019 and submits that:

‘[o]ur clients do not have any objection to the notion that employees should receive reasonable 
compensation for time spent travelling in the course of their duties. However, our clients do 
not consider that the union claims are an appropriate variation for the reasons outlined in our 
written submissions of 13 September 2019.’458

[573] To the extent that the Commission finds that the existing broken shifts clause does not 
meet the modern awards objective of providing a fair and relevant minimum safety net of 
conditions ABI proposes an ‘alternative variation’ for consideration which, it submits rectifies 
any issue with the existing broken shifts provision, but does not suffer from the problems with 
the union proposals.459

[574] ABI submits that an appropriate way of dealing with the issue of unpaid travel time in 
the gaps between portions of work in a broken shift is to introduce a payment mechanism into 
the Award in the form of an allowance. ABI submits that this proposal avoids the 
complexities which arise if the time was to be ‘time worked’.

[575] ABI notes that a number of pre-reform awards dealt with this issue in this way.

[576] For example, clause 29(ii) of the Miscellaneous Workers Home Care Industry (State) 
Award (AN120341) provided for a payment at the rate of 3% of the ordinary hourly rate per 
kilometre travelled where employees were rostered to work with consecutive clients. The 
clause provided:

‘(ii) Where employees are rostered to work with consecutive clients they shall be paid for the 
time taken to travel between locations at the rate of three per cent of the ordinary hourly rate 
per kilometre travelled, excluding travel from the employee’s home to the first place of work 

                                               

457 AFEI Submission, 19 November 2019 at paras G-2 to G-5.
458 ABI Submission, 19 November 2019 at para 14.6.
459 ABI Submission, 13 September 2019 at part 9.






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and return to home at the cessation of his or her duties; provided that this payment shall not be 
made if the employee is being otherwise paid under this award.’

[577] Similarly, clause 20.4.2 of the Community Services (Home Care) (ACT) Award 2002
(AP816351CRA) had a similarly worded provision. It provided:

‘Where employees are rostered to work with consecutive clients they shall be paid for the time 
taken to travel between locations at the rate of 3% of the ordinary hourly rate per kilometre 
travelled, excluding travel from the employee’s home to the first place of work and return to 
home at the cessation of his/her duties.’

[578] ABI submits:

‘9.6 An allowance such as those mentioned above would appear to be a sensible way of 
compensating employees for time spent travelling during periods that are expressed in 
clause 25.6(a) as not being work time.

9.7 Such an allowance appears to meet the objectives of the Unions in terms of compensating 
employees for travel time, without any of the complex implications outlined in 
paragraphs 8.8 to 8.11 above.

9.8 An allowance of this type would also appear to more readily meet the modern awards 
objective, in the sense that it:

(a) provides additional remuneration for employees working broken shifts;

(b) provides an entitlement that is simpler and easier to understand than the 
Unions’ proposals;

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

(d) provides a floor entitlement from which parties can collectively bargain;

(e) does not prevent the utilisation of broken shifts (see the ‘need to promote
flexible modern work practices and the efficient and productive performance 
of work’);

(f) does not impose an unreasonable regulatory burden on business 
(notwithstanding it representing a significant new cost imposition on 
employers).

9.9 As stated at paragraph 7.11 above, our clients are not opposed to the introduction of a 
form of allowance, subject to there being an appropriate delay to its implementation to 
provide the industry with time to prepare for its implementation.’460

[579] It is convenient to note here that NDS does not oppose the alternate proposal advanced 
by ABI.461 AFEI does not oppose ABI’s proposal ‘in principle’ but seeks an opportunity to 
comment on the terms of any variation determination to give effect to the proposal.462

                                               

460 ABI Submission, 13 September 2019 at paras 9.6 – 9.9.
461 NDS Submission, 10 March 2020 p 2.






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[580] Ai Group acknowledges that an allowance of the type contained in the relevant pre-
modern awards may alleviate some of the concerns it has with the Unions’ proposals (such as 
the complexities associated with measuring time spent travelling and the treatment of such 
time as time worked), but notes that ABI’s proposal raises the following issues:463

(a) How is the quantum of the allowance to be determined?

(b) In what circumstances would the allowance be payable? 

(c) Should the employee be required to provide a written record of the number of 
kilometres travelled? Should payment be contingent on the provision of such a record 
and its verification? 

[581] Ai Group submits that if we form the view that ABI’s proposal warrants further 
consideration then parties should be given a further opportunity to address the issue before a 
final determination is made. 

[582] The Unions oppose any variation in the form proposed by ABI.464 In their joint 
submission of 10 March 2020 the Unions advance 4 arguments in support of their position:465

1. The ABI proposal would amount to a small and inadequate compensation to 
the employee travelling for work. When an employer directs an employee to 
undertake work at different locations, the employee is in service to the 
employer, and the time spent travelling between those locations should be 
treated as time worked.

2. An allowance should deal with some additional duty, expense or disability and 
not for what are hours of work.

3. If travel between clients were to be considered an allowance rather than time-
worked, employees working long days with multiple clients would rarely be 
entitled to overtime, save for when working beyond the 12 hour span for a 
broken shift, despite devoting many hours to the employer’s business.

4. The submission that the Union’s travel time proposals are unworkable cannot 
be sustained. The evidence is that employers in the home care sector and in 
disability services have regard to travel time when rostering employees. 
Employers have also adopted methods of recording work travel for the 
purposes of paying the travel allowance.

(iv) Ai Group

                                                                                                                                                  

462 AFEI Submission, 11 March 2020 at paras B-26 to B-27. 
463 Ai Group Submission, 11 March 2020, p 4.
464 See generally, ASU Submission, 2 October 2019 at paras 14 – 27; HSU Submission, 2 October 2019 at paras 42 – 47; 

UWU Submission, 3 October 2019 at paras 6 – 12; Joint Union Submission, 10 February 2020 at paras 49 – 66.
465 Joint Union Submission, 10 March 2020 at para 33.






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[583] Ai Group opposes the ASU, UWU and HSU travel time claims for the reasons set out 
in its submissions of 16 September 2019.466

5.4.4 The Evidence

[584] In our view the evidence supports the following findings:

1. Employees in home care and certain work in disability services have no ‘base 
location’ where they start and finish each day.467 A key feature of the duties of 
such employees is the provision of services in the clients’ homes or other sites 
at the direction of the employer.

2. Home care workers and many disability services support workers are required 
to travel to various locations to provide services to clients.

3. Time spent by employees travelling varies depending on which clients they 
support on any given day and where they reside, and a range of factors may 
affect how long it takes an employee to travel from one location to another on 
any given day.468

4. Most employees are not paid for time spent travelling to and from clients,469

(which includes travelling between clients470 and travelling to the first client / 
from the last client).471 Some employees covered by the Award can be 
travelling to and from clients for significant periods of time without 
payment.472

5. There are a range of practices adopted by some employers to remunerate 
employees in respect of time spent travelling. For example: 

                                               

466 Ai Group Submission, 16 September 2019.
467 Transcript, 17 October 2019, cross-examination of Jeffrey Wright at PN2581-PN2583; Transcript, 18 October 2019, 

cross-examination of Graham Shanahan at PN2865-PN2866.
468 Transcript, 15 October 2019, cross-examination of Trish Stewart at PN459-PN460; Transcript, 16 October 2019, cross-

examination of Robert Steiner at PN1573-PN1574.
469 Exhibit ASU9 – Witness Statement of Richard Rathbone, 13 February 2019 at para 17; Exhibit ASU7 – Witness 

Statement of Tracy Kinchin, 24 June 2019 at para 16; Exhibit HSU25 – Witness Statement of Fiona Macdonald, 15 

February 2019 at Annexure FM-2 at pp 87; Exhibit HSU5 – Witness Statement of Christopher Friend, 15 February 2019 

at para 47; Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019 at para 13; Exhibit HSU28 –

Witness Statement of Thelma Thames, 15 February 2019 at para 16; Exhibit HSU29 – Witness Statement of Bernie 

Lobert, 15 February 2019 at para 15; Exhibit HSU32 – Supplementary Witness Statement of Scott Quinn, 3 October 
2019 at para 10; Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at para 22; Exhibit UV1 – Witness 

Statement of Trish Stewart, 17 January 2019 at para 16; Exhibit UV2 – Supplementary Witness Statement of Trish 

Stewart, 1 April 2019 at para 6; Exhibit UV8 – Witness Statement of Jared Marks, 3 October 2019; Exhibit ASU2 –

Witness Statement of Robert Steiner, 15 October 2019 at para 14.
470 Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019 at para 13.
471 Exhibit HSU28 – Witness Statement of Thelma Thames, 15 February 2019 at para 16; Transcript, 17 October 2019, cross-

examination of Jeffrey Wright at PN2609-PN2611; Transcript, 18 October 2019, cross-examination of Graham Shanahan 

at PN2890. 
472 Exhibit UV2 - Supplementary Witness Statement of Trish Stewart, 1 April 2019 at para 8; Exhibit HSU25 – Witness 

Statement of Fiona Macdonald, 15 February 2019 at Annexure FM2, p 88.






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(a) Ms Stewart gave evidence that Excelcare paid her normal hourly rate 
for time spent travelling ‘between appointments’ which was also 
counted as time worked. However, the employer was said to use 
Google maps to ‘get an estimate’ for how long the travel should take 
and this was how our pay was calculated’.473

(b) Mr Shanahan gave evidence that Coffs Coast Health & Community 
Care Pty Ltd pays employees their ‘normal rate of pay’ when travelling 
between clients, although it was not specified how that payment was 
calculated or determined.474

(c) Mr Shanahan gave evidence that in ‘extraordinary circumstances’ the 
business also pays an additional allowance where employees are 
required to travel significant distances to provide support to clients (the 
example given was where an employee based in Coffs Harbour is 
required to attend a client at Dorrigo).475

(d) HammondCare pays an allowance where broken shifts are worked, 
which is described as ‘recognizing and compensating employees for 
possible travel time and kilometres that may be incurred’.476

(e) HammondCare also has a regime in respect of ‘Travel in Extraordinary 
Circumstances’.477

(f) CASS Care Limited pays an allowance in accordance with clause 
6.1.1(c) of the CASS Care Limited Enterprise Agreement (Other Than 
Children’s Services) (NSW) 2018-2021.478

6. As mentioned earlier, employees report a range of adverse consequences with 
working broken shifts with short engagements and unpaid travel time (see 
finding 6 above at [232]).

5.4.5 Consideration

[585] As mentioned earlier, minimum engagement, broken shifts and travel time are inter-
related. They each impact on how work is organised and the remuneration for that work. All 
parties acknowledge the connection between these issues. For example, the ASU accepts that 
if its claim for paid travel time is successful then the quantum of its broken shift allowance 

                                               

473 Exhibit UV2- Supplementary Witness Statement of Trish Stewart, 1 April 2019 at para 5; Exhibit UV5 – Supplementary 
Witness Statement of Deon Fleming, 28 March 2019 at para 5.

474 Transcript, 18 October 2019, cross-examination of Graham Shanahan at PN2887.
475 Transcript, 18 October 2019, cross-examination of Graham Shanahan at PN2890.
476  Exhibit ABI1 – HammondCare Residential Care and HammondCare at Home Enterprise Agreement 2018 at clause 

13.4.5 and Annexure 1.
477 Exhibit ABI1 - HammondCare Residential Care and HammondCare at Home Enterprise Agreement 2018 at clause 23.2.
478 Transcript, 18 October 2019, cross-examination of Joyce Wang at PN3505-3517, PN3557-3558 and PN3629-3647.






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claim (15%) should be less; because the claimed loading includes a component to compensate 
for the disutility of unpaid travel time.479

[586] In sections 5.2 and 5.3 we have:

 decided to introduce a minimum engagement for part-time employees by deleting 
clause 10.4(c) and inserting a new clause 10.5 to provide the following minimum 
payment for part-time and casual employees:

 social and community service employees (except when undertaking disability 
work) – 3 hours’ pay, and

 all other employees – 2 hours’ pay,

 decided to vary clause 25.6 to define a broken shift as a shift consisting of 2
separate periods of work with a single unpaid ‘break’ (other than a meal break) and 
to accommodate the occasional need for a broken shift to involve more than one
unpaid break subject to: 

 a maximum of 2 unpaid ‘breaks’ in the shift 

 a 2 break shift would be subject to the agreement of the employee, on a per 
occasion basis, and

 a 2 break shift would be subject to an additional payment, in recognition of 
the additional disutility (relative to a single break shift), and

 expressed the following provisional views: 

 the additional remuneration for working a broken shift under clause 25.6 of 
the SCHADS Award should be an allowance calculated as a percentage of 
the standard weekly rate

 an employee working a ‘one break’ broken shift under clause 25.6 should 
receive a broken shift allowance of 1.7% of the standard rate, per broken shift 
($17.10 per broken shift)

 the broken shift allowance payable for a 2 break broken shift be set at 2.5% 
of the standard rate ($25.15 per broken shift), and

 an employee who is a day worker performing work outside of the ordinary
span of hours (including as part of a period of work in a broken shift) is 
entitled to overtime for such work.

[587] The changes we propose to make are likely to result in changes to rostering practices 
and to how work is organised. It may also change the extent of ‘unpaid’ travel between 

                                               

479 ASU Submission, 2 July 2019 at para 56. 






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engagements. Further, the broken shift allowance we propose is intended to compensate for 
2 disutilities: 

 the length of the working day being extended because hours are not worked 
continuously, and

 the additional travel time and cost associated with effectively presenting for work 
on 2 occasions. 

[588] As a general proposition we accept that employees should be compensated for the time 
spent travelling between engagements.  But framing an award entitlement to address this issue 
raises several issues, including the circumstances in which any payment is to be made and the 
calculation of that payment. We are also conscious of the s.134 considerations, in particular:

 the needs of the low paid

 the impact on employment costs and the regulatory burden, and

 the need to ensure that any provision is simple and easy to understand. 

[589] This issue requires further consideration. A conference will be convened to discuss the 
next steps. 

5.5 VARIATIONS TO ROSTERS CLAIMS

5.5.1 Background

[590] Clause 25.5(d) deals with changes to rosters:

'25.5(d) Change in roster

(i) Seven days’ notice will be given of a change in a roster.

(ii) However, a roster may be altered at any time to enable the service of the organisation 
to be carried on where another employee is absent from duty on account of illness, or 
in an emergency.

(iii) This clause will not apply where the only change to the roster of a part-time employee 
is the mutually agreed addition of extra hours to be worked such that the part-time 
employee still has four rostered days off in that fortnight or eight rostered days off in a 
28 day roster cycle, as the case may be.’

[591] There are 3 claims in respect of changes to rosters, 2 advanced by ABI and one by the 
UWU. It is convenient to deal with the UWU claim first.

[592] The submissions and witness evidence relevant to the claims are set out at 
Attachment F.








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5.5.2 UWU Claim

A The claim and submissions

[593] The UWU seeks to vary clause 25.5(d)(i) to provide full-time and part-time employees 
with an entitlement to be paid at overtime rates in circumstances where 7 days’ notice of a 
roster change is not provided. In particular, the UWU seeks to amend clause 25.5(d)(i) as 
follows:

‘(i) Seven days’ notice will be given of a change in a roster. Full time and part time employees 
will be entitled to the payment of overtime for roster changes where seven days’ notice is not 
provided.’480

[594] The UWU submits that roster changes without adequate notice can be disruptive and 
have a significant impact on the ability of employees to attend to their family and caring 
responsibilities and that the proposed variation will remove any ambiguity about what occurs 
when 7 days’ notice is not provided. In relation to the latter point the UWU initially submitted 
that:

‘The Award does not explicitly identify what the consequences is for the employer for failing to 
provide seven days’ notice of a roster change in a situation where the exceptions in clause 
25.5(d)(ii) and (iii) do not apply.

The logical interpretation is that any roster changes where seven days’ notice has not been 
provided must be paid as overtime. This is also the stand industrially generally.

However, many employers in the sector do not heed this, and regularly make changes to 
employee rosters without the required notice and without the payment of overtime.’481

[595] In the subsequent Joint Union Submission of 10 February 2020 the UWU withdrew its 
statement that overtime is payable where 7 days’ notice of a roster change is not given and 
agrees that the consequence of such conduct would arise from it being a breach of the 
Award.482

[596] In summary the UWU contends that:

‘On the above evidence, the Commission can be satisfied that inserting a provision providing 
for the payment of overtime where late roster changes are not agreed to by an employee would 
have limited cost impact on employers, but would provide a reasonable means of 
compensation employees when such changes do occur and assist in the development of good 
rostering practices.’483

[597] The various employer interests oppose the UWU’s claim. 

                                               

480 UWU Submission, 15 February 2019, para 72.
481 UWU Submission, 15 February 2019 at paras 67 – 74.
482 See Joint Union Submission, 10 February 2020 at para 287.
483 UWU Submission 18 November 2019 at para 51.






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[598] ABI submits that where employers seek to change an employee’s roster it is for 
legitimate operational reasons and generally in order to meet client needs.

[599] ABI also submits that if the claim is granted it will increase the extent of casualisation 
in the sectors covered by the SCHADS Award:

‘Ultimately, if the Award is varied to make it even more difficult for employers to utilise part-
time employees in the current dynamic operating environment (for example, by imposing 
overtime payment obligations where a part-time employee’s roster is changed), employers will 
transition towards a workforce composition with a greater proportion of casual employees.’484

[600] NDS opposes the claim and submits it is unnecessary because a failure to provide the 
requisite notice is a breach of the Award and the employer can be prosecuted and fines 
imposed as a result. NDS also refers to the protection afforded to part-time employees by the 
requirements of clause 10.3(c), while full-time employees have the protections of the ordinary 
hours provisions of clauses 25.1 – 25.4.485

[601] AFEI submits that the claim is not supported by probative evidence and is not 
necessary for the SCHADS Award to achieve the modern awards objective. AFEI submits486

that the implications of non-compliance with Award terms is sufficiently addressed in the Act 
which provides: 

 rights and protections to employees so that issues of non-compliance with Award 
terms can be raised without adverse action taken against them

 union rights of entry for investigation of non-compliance

 Fair Work Ombudsman powers of investigation of non-compliance

 standing of employees, and unions to seek legal redress for non-compliance with an 
Award, and 

 powers of the Fair Work Ombudsman for compliance enforcement. 

[602] AFEI also contends that the proposed variation would, result in ‘unnecessarily high 
regulatory restraints and costs associated with achieving mutually suitable working 
arrangements with employees, as well as uncertainty for employers and employees in 
determining entitlements.’487

[603] Ai Group submits it is not necessary, within the meaning of s.138 of the Act, or 
appropriate to provide for the payment of overtime penalties by reference to circumstances 
which constitute a breach of an Award clause, having regard to the following:

                                               

484 ABI Submission, 12 July 2019 at para 14.8.
485 NDS Submission, 16 July 2019 at paras 50 – 52.
486 AFEI Submission, 23 July 2019 at para 99.
487 AFEI Submission, 23 July 2019 at para 104.






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 the award already appropriately and comprehensively regulates the way overtime 
should be paid

 the proposal would introduce inconsistencies between award terms and give rise to 
various problems, including uncertainty as to whether rostering provisions can be 
breached if a relevant payment is made, and

 the evidentiary case advanced does not establish the various factual assertions relied 
on in support of the claim.

[604] Ai Group also submits that there are existing limitations on the ability to vary a roster 
on less than 7 days’ notice in respect of part-time employees and, more generally, under 
clause 10.3. Ai Group also points to several drafting issues in the proposed variation which it 
submits are ‘problematic’.488

B The Evidence

[605] In our view the evidence supports the following findings:

1. There has been an increase in the variability of working hours since the 
introduction of consumer-directed care.489

2. It is common for employees’ rosters to change regularly and for those changes 
to occur with less than 7 days’ notice.490

3. Changes to employees’ rosters are generally made for operational reasons 
including client cancellations and to cover employee absences to meet the 
needs of the clients.491

4. Roster changes can be disruptive for employees.492

[606] The UWU also contended that the evidence supported the following findings:

                                               

488 Ai Group Submission, 13 July 2019 at paras 395 – 417.
489 Exhibit ABI6 - Witness Statement of Deborah Ryan, 12 July 2019 at paras 41, 62; Exhibit HSU27 – Witness Statement 

of Pamela Wilcock, 15 February 2019 at para 21; Exhibit HSU28 - Witness Statement of Thelma Thames, 15 February 

2019 at 11; Exhibit HSU31 – Witness Statement of Scott Quinn, 3 October 2019 at paras 16, 36. 
490 Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at paras 13, 15 and 16; Exhibit UV1 - Witness 

Statement of Trish Stewart, 17 January 2019 at para 9 - 11; Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 

January 2019 at para 22 - 25; Exhibit HSU32 – Supplementary Witness Statement of Scott Quinn, 3 October 2019 at 

para 31.
491 Exhibit HSU27 – Witness Statement of Pamela Wilcock, 15 February 2019 at para 11; Exhibit HSU28 - Witness 

Statement of Thelma Thames, 15 February 2019 at para 11; Exhibit UV4 – Witness Statement of Deon Fleming, 16 

January 2019 at para 15 - 17; Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 10; Exhibit 

HSU5 – Witness Statement of Christopher Friend, 15 February 2019 at para 30; Exhibit UV6 - Witness Statement of 

Belinda Sinclair, 16 January 2019 at para 22. 
492 Exhibit UV1 - Witness Statement of Trish Stewart, 17 January 2019 at para 10; Exhibit UV4 – Witness Statement of Deon 

Fleming, 16 January 2019 at para 16; Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019 at para 25.  






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1. Employees regularly agree to roster changes because there is under-
employment in the sector and they require additional income.

2. It is uncommon for employees to disagree to roster changes, and where such 
disagreement occurs, it is for a good reason. 

[607] In support of these proposed findings the UWU relies on the evidence of Trish 
Stewart, Deon Fleming and Belinda Sinclair.493 In relation to Ms Stewart’s evidence the 
UWU relies on [10] – [11] of Ms Stewart’s statement, which says: 

‘At least once per week, my roster will be altered as a result of either another support worker 
who has called in sick or a client cancelling their appointment. If a client cancels their 
appointment before 5pm the day before their scheduled appointment then I do not get paid for 
the shift. If they cancel after 5pm the day before, then I will get paid. This means that I can 
never be certain of the amount of hours I am going to receive and how much I will be paid 
each week. 

Most weeks I would like to pick up more hours because I do not receive enough hours to cover 
my weekly expenses. My managers normally ask me to cover a shift at short notice if a 
colleague has taken sick leave. I will normally accept these hours if I am available because I 
need to accept all of the hours I am offered to make enough money.’494

[608] In relation to Ms Fleming’s evidence the UWU relies on [15] – [17] of Ms Fleming’s 
statement, which says: 

‘15. My roster is frequently changed. Most weeks the roster that is released at the 
beginning of the week is varied due to client cancellations and my colleagues taking sick 
leave.

16. If clients cancel on the same day of their appointment, then I am paid for the shift. But 
if a client cancels a home care visit before 5pm the day before the scheduled appointment, 
then I am not paid for that appointment and these are hours I miss out on. At least once per 
week, I will have a client cancel their appointment with the required notice. This creates a lot 
of uncertainty for me in being able to anticipate how much I will get paid in the week. 

17. At least once per fortnight my manager will ask me if I can take on extra work 
because a colleague has called in sick. If I am available, I will take these extra shifts because I 
want to work more hours.’495

[609] The evidence at [16] relates to client cancellations and [17] relates to the working of 
additional hours; they do not support the UWU’s proposed finding in respect of the roster 
change claim. The balance of Ms Fleming’s evidence is consistent with Ms Stewart’s 
evidence, namely that her roster is frequently changed, due to client cancellations and 
colleagues taking sick leave. 

[610] Finally, the UWU relies on [22] – [25] of Ms Sinclair’s statement and part of her oral 
evidence. The relevant passages from Ms Sinclair’s statement are: 

                                               

493 See UWU Submission, 18 November 2019 at para 48 – 49.
494 Exhibit UV1 - Witness Statement of Trish Stewart, 17 January 2019 at paras 10 and 11.
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‘22. My roster can change without notice when another employee falls ill or is unable to 
work. I understand that Wesley Mission North at Macquarie Park uses a large number of 
external staff to meet the workload. If an external company can’t meet the service, it is called 
a “push back” and my roster might change. If Wesley Mission cannot find a casual then they 
change the roster so that the client will not miss out on service by adding the service onto a 
permanent employee’s roster. 

23. My roster changed late in the afternoon on Friday 7 December 2019 afternoon. I don’t 
know why. Two other care worker’s clients were on my roster. I wasn’t asked if I was able to 
or would like to do these shifts; I did not agree to the roster changes. I was required to make 
the following changes to my roster:

Day Before roster change After roster change
Monday 8.00 am – 2.10 pm 8.50am – 2.10 pm
Tuesday 8.00 am – 10.30 am 8.00am – 1.00 pm
Wednesday 8.00 am – 10.20 am 8.00 am – 1.00 pm
Thursday 10.00 am – 3.15 pm 8.25 am – 3.15 pm
Friday 8.00 am – 10:40 am 8.00 am – 12:10 pm

24. On, Wednesday 12 December 2019, I was asked if I could move my Health Safety 
Representative hour in the office to that day so I could do an additional shift on Friday, going 
shopping with a client. This meant I would finish my day ten minutes after my agreed 
availability, so I was able to decline the request. I had another commitment at 3.00pm. I 
suggested that I might be able to help provided the shift finished by 2.45pm. My Friday then 
changed to 7.50 am to 2.45 pm.

25. My employer is constantly making changes to my roster and these changes make it 
difficult for me to plan things for when I am not rostered or to make a weekly budget, despite 
that I am a permanent employee, not a casual. 

26. I agree to changes in my roster because I need the hours and am concerned that if I 
complain or don’t accept additional hours, I will be rostered less. This is not an accusation 
against my employer but my concern. I have a tight budget and cannot afford to lose hours.’496

[611] The following passages from Ms Sinclair’s cross-examination are also said to support 
the UWU’s proposed findings: 

(After taking the witness to [26] of her statement)

‘MS LO: Would you say the changes to your roster have been agreed to?---The majority of the 
time I agree to them. Sometimes they're first thing in the morning and you just have to do it 
because clients need to be showered.

So have there been instances where you have disagreed to work when changes have been 
made to your roster?---Yes, there has, because they were outside of my availability.

Outside, and that's the main reason why you would disagree?---To the best of my knowledge.

                                               

496 Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019 at paras 22 – 26. 








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Are there any other reasons you would disagree to work those additional hours?---Not that 
comes to mind, no.’497

[612] We are not persuaded that the evidence supports the findings sought by the UWU. 
While the findings may be consistent with the experience of some employees, they are 
expressed in broad general terms. Further, while it may be accepted that it is uncommon for 
employees to refuse to change their roster, there is insufficient evidence to support the allied 
proposition that in cases of employee refusal ‘it is for a good reason’. 

C Consideration

[613] We are not persuaded that the variation of the SCHADS Award in the terms sought by 
the UWU is necessary for the Award to achieve the modern awards objective.

[614] We acknowledge that there are provisions in some modern awards which may be 
characterised as punitive and which are directed as securing compliance with a particular term,
for example, punitive provisions relating to the late payment of wages.498 But it remains 
uncommon for an award term to provide for the payment of a penalty rate by reference to 
circumstances which constitute an award breach. The usual position is that award breaches are 
addressed by the penalty regime in Chapter 4 of the Act. 

[615] We would also observe that the SCHADS Award imposes a range of positive 
obligations upon employers – none of which provides for the payment of a penalty rate in the 
event of non-compliance. For example:

Access to the Award & NES

 Clause 5 – Make sure copies of the award are available

Individual flexibility arrangements

 Clause 7.4 – When initiating an agreement, provide employee with written proposal 
(including a translation if required)

 Clause 7.9 – Keep the agreement as a record; give copy to employee

Consultation about major workplace change

 Clause 8.1 – Following a definite decision to make major changes, give notice and 
discuss with employees

 Clause 8.2 – Provide written information to employees affected under clause 8.1

 Clause 8.4 – Promptly consider matters raised by employees regarding major 
changes

                                               

497 Transcript, 15 October 2019, cross-examination of Belinda Sinclair at PN605-PN608.
498 See generally, 4 Yearly Review of Modern Awards [2015] FWCFB 1549 and Timber Industry Award – 4 yearly review 

decision [2015] FWCFB 2856 at [57]. The Timber Industry Award 2020 provides for a penalty for late payment if the 

employees are paid in cash.






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Consultation about changes to rosters or hours of work

 Clause 8A.2 – Consult with employees affected by proposed roster changes

 Clause 8A.4 – Consider employee views given re change to roster

Types of employment

 Clause 10.5(i) – If refusing a request for casual conversion, provide written reasons 
with 21 days

 Clause 10.5(p) – Provide employee with copies of this subclause within 12 months 
of employment

Classifications

 Clause 13.2 – Advise employee of classification

Allowances

 Clause 20.2(d) – Reimburse employees for cost of safety equipment
 Clause 20.5(b) – Cover the cost of travelling on duty where no transport available
 Clause 20.5(d) – Cover the cost of accommodation and meals where overnight stay
 Clause 20.6 – Refund costs of installing phone and any associated rental charges

Superannuation

 Clauses 23.2, 23.4, 23.5 – Make super contributions
 Clause 23.3(c) – Pay authorised voluntary employee amounts

Payment of wages

 Clause 24.2 – Pay wages no later than 7 days after termination

Overtime and penalty rates

 Clauses 28.2(e) & (f) – Where not taken as time off, pay overtime upon request for 
overtime covered by an agreement 

 Clause 28.2(g) – Keep a copy of any agreement for time off instead of payment for 
overtime

 Clause 28.2(j) – If not taken during employment, pay out overtime following 
termination

Request for flexible working arrangements

 Clause 30A.2 – Before responding to request for change in working arrangements, 
discuss the request with employee

 Clause 30A.4 – Provide employee with written copy of response

Leave








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 Clause 31.4(c) – Keep record of agreed period of annual leave

 Clause 31.5(i) – Keep record of agreement regarding cashed out annual leave

 Clause 31.8(e) – Grant paid annual leave request by way of notice (excess leave 
accruals)

 Clause 36.7(a) – Keep family violence notices confidential.

[616] Evidence of widespread breach of a particular award term may warrant an award term 
of the type sought by the UWU; but the evidence adduced by the UWU falls well short of 
what is required. We dismiss the claim.

5.5.3 The ABI Claims

[617] ABI has 2 claims relating to rostering:

 to permit rosters to be altered at any time by agreement between the employer and 
relevant employee (provided the agreement is recorded in writing), and

 to clarify the operation of the existing provision allowing for roster changes in the 
event of another employee being absent from duty on account of ‘illness’.499

A The clause 25.5(d)(ii) claim

[618] ABI proposes a variation to clause 25.5 by deleting clause 25.5(d)(ii) (and by 
extension (iii)) and inserting the following: 

‘(ii) However, a roster may be altered at any time: 

A by agreement between the employer and relevant employee, provided the 
agreement is recorded in writing; 

B to enable the service of the organisation to be carried out where another 
employee is absent from work on account of illness, compassionate leave, 
community service leave, ceremonial leave, leave to deal with family and 
domestic violence, or in an emergency; or 

C where the change involves the mutually agreed addition of hours for a part-
time employee to be worked in such a way that the part-time employee still 
has four rostered days off in that fortnight or eight rostered days off in a 28 
day roster cycle.’500

[619] ABI did not adduce any evidence specifically directed at this claim and do not seek 
any factual findings in respect of its proposed variation. ABI characterises its proposed 

                                               

499 ABI Submission, 2 July 2019 at para 4.13.
500 We note that pursuant to ABI Submission, 10 February 2020 at para 1, p 54, ABI accepted and agreed with the Ai Group 

Submission dated 26 September 2019 identifying an unintended consequence of ABI’s proposed draft, and agreed to 

replace the words ‘personal/carer’s leave’ with ‘illness’.






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variation as ‘relatively minor’501 and contends that the claim is obvious as a matter of 
industrial merit and that in such circumstances it is unnecessary to advance probative 
evidence in support of the proposed variation. 

[620] ABI also submits that the wording of the proposed variation is said to be consistent 
with the Full Bench Decision in 4 yearly review of modern award–Nurses Award 2020502 (the 
Nurses Decision). We return to the Nurses Decision shortly. 

[621] The claim is opposed by the Unions. It is broadly supported by the employer interests; 
though AFEI does not support the requirement that any agreement between the employer and 
employee be recorded in writing.503

B Consideration

[622] We turn first to the current extent of flexibility in respect of rostering arrangements. 

[623] The UWU contends that the SCHADS Award already provides ‘a significant level of 
flexibility in rostering’504 and the proposed variation is unnecessary; ABI takes a different 
view and submits that the SCHADS Award does not currently provide ‘a significant level of 
flexibility in rostering’ and submits that the right to change a roster on 7 days’ notice is 
limited in 2 ways:505

 the employer must consult with the employee regarding the proposed change in 
accordance with clause 8A prior to implementing the roster change under clause 
25.5(d)(ii), and

 where the employer wishes to change the roster of a part-time employee, clause 
10.3(c) operates so as to prevent the employer from utilising the right under clause 
25.5(d)(i) unless the employee agrees in writing to the change.

[624] A fortnightly roster of employees’ ordinary hours of work must be accessible to 
employees at least 2 weeks before the commencement of the roster period (see clause 
25.5(a)). 

[625] As mentioned earlier, clause 25.5(d)(i) sets out the general rule that 7 days’ notice 
must be given of a change in a roster. Subclauses 25.5(d)(ii) and (iii) set out the exceptions to 
that general obligation:

‘(ii) However, a roster may be altered at any time to enable the service of the organisation 
to be carried on where another employee is absent from duty on account of illness, or 
in an emergency.

                                               

501 ABI Submission, 2 July 2019 at para 4.13.
502 [2018] FWCFB 7347.
503 AFEI Submission, 3 July 2019 at paras 7 – 9.
504 UWU Submission, 15 February 2019 at para 77.
505 ABI Submission, 12 July 2019 at paras 14.9 – 14.10.






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(iii) This clause will not apply where the only change to the roster of a part-time employee 
is the mutually agreed addition of extra hours to be worked such that the part-time 
employee still has four rostered days off in that fortnight or eight rostered days off in a 
28 day roster cycle, as the case may be.’

[626] In short, a roster can be varied ‘at any time’ (that is, without giving 7 days’ notice) to 
enable the service provided by an organisation to be carried on:

 where another employee is absent from duty on account of illness, or

 in an emergency. 

[627] Clause 8A of the SCHADS Award provides:

‘8A Consultation about changes to rosters or hours of work

8A.1 Clause 8A applies if an employer proposes to change the regular roster or ordinary 
hours of work of an employee, other than an employee whose working hours are irregular, 
sporadic or unpredictable.

8A.2 The employer must consult with any employees affected by the proposed change and 
their representatives (if any).

8A.3 For the purpose of the consultation, the employer must:

(a) provide to the employees and representatives mentioned in clause 8A.2 
information about the proposed change (for example, information about the 
nature of the change and when it is to begin); and

(b) invite the employees to give their views about the impact of the proposed 
change on them (including any impact on their family or caring 
responsibilities) and also invite their representative (if any) to give their views 
about that impact.

8A.4 The employer must consider any views given under clause 8A.3(b).

8A.5 Clause 8A is to be read in conjunction with any other provisions of this award 
concerning the scheduling of work or the giving of notice.’

[628] The consultation requirements in clause 8A only apply in particular circumstances, 
this is to proposed changes to an employee’s ‘regular roster’; it does not apply to one off 
changes due to the illness of another employee or in an emergency. 

[629] Clause 10.3 of the SCHADS Award provides:

‘10.3 Part-time employment

(a) A part-time employee is one who is engaged to work less than 38 hours per week or 
an average of less than 38 hours per week and who has reasonably predictable hours 
of work.

(b) The terms of this award will apply to part-time employees on a pro rata basis on the 
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(c) Before commencing employment, the employer and employee will agree in writing 
on:

(i) on a regular pattern of work including the number of hours to be worked each 
week, and

(ii) the days of the week the employee will work and the starting and finishing 
times each day.

(d) The agreed regular pattern of work does not necessarily have to provide for the same 
guaranteed number of hours in each week

(e) The agreement made pursuant to clause 10.3(c) may subsequently be varied by 
agreement between the employer and employee in writing. Any such agreement may 
be ongoing or for a specified period of time.’

[630] ABI submits that the limitation in clause 10.3(e) materially diminishes the right under 
clause 25.5(d) to change a part-time employee’s roster.506 We agree; a part-time employee’s 
agreed regular pattern of work can only be varied by agreement between the employer and 
employee, in writing.

[631] But while clause 10.3 may be said to ‘materially diminish’ an employer’s capacity to 
unilaterally vary a part-time employee’s roster, that does not, of itself, justify the variation 
proposed. As mentioned earlier, one of the defining characteristics of part-time employment is 
the presence of reasonably predictable hours of work and a guaranteed number of hours each 
week. These characteristics are reflected in clause 10.3

[632] Further, as previously mentioned, the part-time provisions in the SCHADS Award 
have been the subject of recent consideration in the Part-time and Casual Employment 
Common Issue Proceedings as part of the Review. In those proceedings the Full Bench 
observed that ‘the current provision as it is applied in practice is reasonably flexible.’507

[633] We now turn to the Nurses Decision upon which ABI relies.

[634] In the absence of probative evidence and cogent submissions about the merit of ABI’s 
claim, the Commission should adopt the approach of previous Full Benches which protect 
employees covered by the Award from undue pressure to change their rosters at short notice.

[635] The relevant aspect of the Nurses Decision relates to a claim advanced by the Aged 
Care Employers: 

‘ACE proposes to vary clause 8.2 of the Nurses Award exposure draft (clause 25 of the current 
award) in order to provide an employer with the ability to alter an employee’s roster without 
the requirement of giving the employee seven days’ notice, in circumstances where the 
employee has agreed to the roster change.’508

                                               

506 ABI Submission, 12 July 2019 at para 14.12.
507 Part-time and Casual Employment Case at [641]. 
508 4 yearly review of modern awards—Nurses Award 2010 [2018] FWCFB 7347 at [146]. 






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[636] The Commission rejected the claim but went on to say: 

‘[159] We do not intend to make the change proposed by ACE however we will provide greater 
flexibility. We will remove the words “due to illness” from clause 25.4 and insert the words 
“pursuant to clauses 33 – Ceremonial leave; 34 – Personal/carers’ leave and compassionate 
leave and 36 – Leave to deal with Family and Domestic Violence.”

[160] We propose that clause 25.4 will read as follows: 

25. Rostering 
… 

25.4 Seven days’ notice of a change of roster will be given by the employer to an 
employee. Except that, a roster may be altered at any time to enable the functions of 
the hospital or facility to be carried out where another employee is absent from work 
pursuant to clauses 33 – Ceremonial leave; 34 – Personal/carers’ leave and 
compassionate leave and 36 – Leave to deal with Family and Domestic Violence, or in 
an emergency. Where any such alteration requires an employee working on a day 
which would otherwise have been the employee’s day off, the day off instead will be 
as mutually arranged. 

[161] Interested parties are invited to file submissions in relation to the proposed wording of 
clause 25.4.’509

[637] Part of ABI’s claim is consistent with the outcome in the Nurses Decision, but only 
that part which proposes an extension of the circumstances in which an employer can vary a 
roster in clause 25.5(d)(ii) to include the circumstance where another employee is absent on 
various forms of leave (See item (ii)(B) in ABI’s claim; [618] above). The Nurses Decision is 
inconsistent with that part of ABI’s claim which permits the variation of rosters by agreement. 

[638] In rejecting the Aged Care Employers claim in the Nurses Decision the Full Bench 
said: ‘we have considered the ANMF’s submission concerning the possibility that an 
employee may feel pressured to agree to a change to the roster within the 7 day period and we 
agree with it’.510 The Commission then echoed the AIRC in Re Award Modernisation,511

saying: 

‘We consider that the nature of the employer-employee relationship is such that if a supervisor 
asks an employee to change rosters within the 7 day period before the commencement of the 
roster period the employee’s decision making may be compromised by fear (even if 
unwarranted) of repercussions if the request is declined’.512

[639] Similar sentiments were expressed by the Full Bench in the Part-time and Casual 
Employment Case in rejecting an Ai Group proposal to vary the Fast Food Industry Award 
2010 to allow an employer and a casual employee to agree to an engagement of less than the 3 
hour minimum provided in that award. The Full Bench rejected the claim on the basis that it 

                                               

509 4 yearly review of modern awards—Nurses Award 2010 [2018] FWCFB 7347 at [159] – [161].
510 Ibid at [156].
511 Re Award Modernisation (2009) 181 IR at [148].
512 Ibid at [157].






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would facilitate the complete removal of minimum engagement periods and open the door to 
the exploitation of casual employees.513

[640] We are not persuaded that the variation of the SCHADS Award in the terms sought by 
ABI is necessary for the Award to achieve the modern awards objective. 

[641] Contrary to ABI’s submission we do not think that the claim is ‘obvious as a matter of 
industrial merit’.514 There is no evidence that clause 25.5(d)(ii) requires amendment to 
encompass the circumstances where another employee is absent on various forms of leave. 
The proposal that rosters may be varied by agreement is inconsistent with the observation in 
the Nurses Decision and in the Part-time and Casual Employment Case. Further, there is 
evidence in the present proceedings of employee concerns that a capacity to vary rosters by 
agreement may lead to employees feeling pressured to change their shifts to accommodate a 
request by their employer. In her statement Ms Emily Flett says: 

‘I am worried that if rosters could be changed by agreement at any time, I would be pressured to 
change my shifts to accommodate my employer. We have a sense of duty to keep the place 
running. A good example of this was in April 2019. Anglicare Victoria had restructured the on 
call team to centralise the work that was done by the regional North West After hour’s team in 
the Collingwood office. This required roster changes. We felt incredible pressure to adhere to 
whatever the organisation told us they needed to do, even if it would cause us problems. We 
just tried to adapt and have come across to the central roster. We have all lost income doing 
this, we are now working more nights for less money.’515

[642] ABI has failed to establish the requisite merits basis for the claim. 

[643] While we are not prepared to vary 25.5(d) in the manner proposed by ABI we see 
merit in varying the clause to permit the variation of a roster by mutual agreement in 
circumstances where the variation is proposed by an employee to accommodate an agreed 
shift swap with another employee. In our view such a facilitative change does not run the risk 
of employees feeling pressured to accommodate employer requests to change their shift. It is 
our provisional view that clause 25.5(d)(ii) be varied as follows: 

(ii) However, a roster may be changed at any time:

(A) if the change is proposed by an employee to accommodate an agreed shift 
swap with another employee; or

(B) to enable the service of the organisation to be carried on where another 
employee is absent from duty on account of illness, or in an emergency.

5.6 REMOTE RESPONSE/RECALL TO WORK OVERTIME CLAIMS

5.6.1 Background

[644] Clause 28.4 of the SCHADS Award deals with ‘Recall to work overtime’ and states:

                                               

513 Part-time and Casual Employment Case at [686]; also see Aged Care Substantive Claims Decision at [187] – [193]. 
514 ABI Submission, 10 February 2020 at para 1.
515 Exhibit ASU8 – Witness Statement of Emily Flett, 22 September 2019 at para 20.






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‘28.4 Recall to work overtime

An employee recalled to work overtime after leaving the employer’s or client’s premises will 
be paid for a minimum of two hours’ work at the appropriate rate for each time so recalled. If 
the work required is completed in less than two hours the employee will be released from 
duty.’

[645] Clause 20.9 of the Award, ‘On Call allowance’ states:

‘20.9 On call allowance

(a) An employee required by the employer to be on call (i.e. available for recall to duty) 
will be paid an allowance of 2.0% of the standard rate in respect to any 24 hour period 
or part thereof during the period from the time of finishing ordinary duty on Monday 
to the time of finishing ordinary duty on Friday.

(b) The allowance will be 3.96% of the standard rate in respect of any other 24 hour 
period or part thereof, or any public holiday or part thereof.’

[646] The current on call allowances in the SCHADS Award are $20.12 (clause 20.9(a)) and 
$39.84 (clause 20.9(b)) respectively.

[647] One of the issues raised during the review is how the SCHADS Award operates in 
circumstances where an employee, who is not ‘at work’ or otherwise rostered to work or 
performing work at a particular time, is contacted and required to undertake certain functions 
remotely without physically attending the employer’s premises (such as providing 
information to the employer over the telephone). It is convenient to refer to such work as 
‘remote response work’.

[648] The SCHADS Award does not currently directly address work performed outside of 
ordinary hours that does not require travel to a physical workplace. As the HSU observes:

‘The Award provides (at clause 20.9) for payment of an on call allowance for employees who 
are required to be available for recall to duty. 

Clause 28.4 regulates the payment for when an employee is recalled to work. Where an 
employee is recalled to work overtime after leaving the work, the employee is paid for a 
minimum of two hours work at the appropriate rate for each recall, but must be released if the 
work is completed within that period. 

The award does not clearly identify whether employees required to perform additional work 
without attending the place of work are entitled to compensation. Many employees are now 
able to perform valuable work for the employer outside the employer’s premises connecting 
remotely with employer systems. Such work should be compensated appropriately. 

The HSU contends the Award should be amended to make clear that employees required to 
perform work out of hours should be compensated, with a minimum payment of one hour 
attached to such work.’516

                                               

516 HSU Submission, 15 February 2019 at paras 69 – 72.






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[649] NDS makes a similar point: 

‘The award is currently silent on how to deal with work performed outside ordinary rostered 
hours that does not require travel to a physical workplace. This has the potential to create 
confusion and disputation around the application of clause 28.4 which deals with recall to 
work overtime.

Since the making of this modern award in 2010 there has been a rapid growth in the use of 
technology to enable remote working arrangements. 

NDS is aware that on call arrangements are widely used throughout the social and community 
services sector, not just in disability services. The purpose of on call varies but includes 
availability for dealing with client emergencies, ensuring frontline workers can access advice 
from senior employees for non-routine circumstances, and in the context of the NDIS, 
handling short term rostering issues such as client cancellation or employee absences.’517

[650] There were initially 3 claims in respect of remote response and recall to work 
overtime, by ABI, the HSU and ASU. The ABI claim went through a number of different 
iterations and, as we shall see, the HSU subsequently withdrew its claim. 

[651] The submissions and witness evidence relevant to remote response/recall to work
claims are set out at Attachment G. 

5.6.2 The ABI Claim

A The Claim

[652] ABI’s initial claim is set out at items 5 – 7 in the draft determination filed on 2 April 
2019 as follows: 

‘5. By deleting clause 20.9 and inserting in lieu thereof: 

20.9 On call allowance 

An employee required by the employer to be on call (i.e. available for recall to duty at the 
employer’s or client’s premises and/or for remote response duties) will be paid an allowance 
of: 

(i) $17.96 for any 24 hour period or part thereof during the period from the time of 
finishing ordinary duty on Monday to the time of finishing ordinary duty on Friday; or

(ii) $35.56 in respect of any other 24 hour period or part thereof on a Saturday, Sunday, or 
public holiday. 

6. By inserting new clause 20.10 as follows: 

20.10 Remote response

                                               

517 NDS Submission, 2 July 2019 at paras 41 – 43.






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(a) In this award, remote response duties means the performance of the following 
activities by an employee outside of hours at the direction of, or with the authorisation 
of, their employer: 

(i) responding to phone calls, messages or emails; 

(ii) providing advice (‘phone fixes’); 

(iii) arranging call out/rosters of other employees; and 

(iv) remotely monitoring and/or addressing issues by remote telephone and/or 
computer access, in circumstances where the employee is not required to 
attend their employer’s premises, or any other particular place of work, and at 
a time when the employee is either on call or has not otherwise been rostered 
to work. 

(b) Subject to clause 20.10(f), where an employee is directed or authorised by their 
employer to perform remote response duties between 6.00am and 10.00pm, the 
employee will be paid at the applicable rate of pay specified in this Award for any
such work performed between these hours, with a minimum payment of 15 minutes. 

(c) Where an employee undertakes multiple separate instances of remote response duties 
during a particular period referred to in clause 20.10(b), and the total time spent 
performing such duties does not exceed 15 minutes, only one minimum payment is 
payable. 

(d) Subject to clause 20.10(f), where an employee is directed or authorised to perform 
remote response duties between 10.00pm and 6.00am the employee will be paid at the 
applicable rate of pay specified in this Award for any such work performed between 
these times, with a minimum payment of one hour. Where such work exceeds one 
hour, payment will be made at the applicable rate for the duration of the work. 

(e) Where an employee undertakes multiple separate instances of remote response duties 
during a particular period referred to in clause 20.10(d), and the total time spent 
performing duties does not exceed one hour, only one minimum payment is payable. 

(f) Subject to clause 20.10(g), an employee who performs remote response duties must 
maintain and provide to their employer a time sheet specifying the time at which they 
commenced and concluded performing any remote response duty and a description of 
the work that was undertaken. This record must be provided to the employer prior to 
the end of the next full pay period or in accordance with any other arrangement as 
agreed between the employer and the employee. 

(g) An employer may implement an alternate method or system for the recording and 
notification of the details referred to in clause 20.10(f). 

(h) An employer is not required to pay an employee for any time spent performing remote 
duties if the employee does not comply with the requirements of clause 20.10(f) or 
any alternate method or system pursuant implemented under clause 20.10(g). 

(i) For the purposes of this clause, remote response duties do not include employees 
undertaking administrative tasks such as (but not limited to) reviewing or inquiring 
about their roster or seeking changes to their roster. 








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(j) Clause 28.3 does not apply where an employee performs remote response work in 
accordance with this clause.

7. By deleting clause 28.4 and inserting in lieu thereof:

28.4 Recall to work overtime at the employer’s or client’s premises

An employee recalled to work overtime after leaving their place of work to attend at a 
premises where work is performed will be paid for a minimum of two hours’ work at the 
appropriate rate for each time recalled. If the work required is completed in less than two 
hours the employee will be released from duty. This clause does not apply to an employee 
performing remote response duties in accordance with clause 20.10 of this Award.’

[653] ABI’s initial claim involves a proposed new clause 20.10, as well as consequential 
amendments to clauses 20.9 and 28.4. Under the proposed new clause 20.10, employees 
would be entitled to payment for performing remote response duties, with the quantum of 
such payment and the relevant minimum payment dependent on when the remote response 
duties are performed. 

[654] Specifically, ABI’s initial claim proposed that employees be paid:518

 at the applicable rate of pay for work performed between 6.00am and 10.00pm, with 
a minimum payment of 15 minutes, and 

 at the applicable rate of pay for work performed between 10.00pm and 6.00am, with 
a minimum payment of one hour.

[655] In its submission in reply dated 13 September 2019 the UWU did not oppose the 
insertion of a remote response clause but did not support a clause in the terms proposed by 
ABI. At [50] – [53] of its submission the UWU submits: 

‘The variation proposed by ABI and others does not adequately distinguish between remote 
response work performed whilst on call, and remote response work performed ad hoc, and 
only requires payment at the applicable rate of pay for remote response work performed.

A distinction between remote response duties performed whilst on call, and not, is necessary. 
When an employee is not on call, an employee should be able to expect that they are free to go 
about their life without any intrusion from the workplace. This is particularly so when 
employees are award-reliant. Any remote response duties that the employer requires the 
employee to perform when they are not on call should be costed at a higher rate. This would 
encourage an employer to roster effectively, and ensure that an appropriate employee is 
available ‘on call’ to address issues that may arise. Placing a higher cost on remote response 
work performed by employees not on call also provides some compensation for the greater 
disutility associated with the work. 

Remote response duties are performed outside of rostered hours, and should be paid at 
overtime rates. If remote response duties are not costed effectively, this could result in some 
employers requiring employees to work multiple instances of remote response across a long 
period of time, effectively disrupting any rest break the employee is entitled to between shifts. 

                                               

518 ABI Draft Determination, 2 April 2010.






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ABI and others’ proposed variation also explicitly excludes ‘administrative duties’ from the 
ambit of remote response. We oppose this exclusion. If the employer directs or authorises an 
employee to perform administrative duties outside of ordinary hours, then there is no reason 
why such duties should not be paid for under this clause.’519

[656] In its submission of 23 September 2019, the ASU opposed ABI’s claim on the basis 
that ABI’s proposal was lacking in the following respects:

 the description of ‘remote response’ does not describe work in the SCHADS 
industry

 an employer would be entitled to direct an employee to perform work outside of 
their ordinary hours

 the proposed clause expands the scope of the current ‘on call’ term

 the proposed clause makes no distinction between a ‘remote response’ where an 
employee is rostered on call and where the employee is not rostered to work

 employees are only paid at the ‘applicable rate’ for any time worked. Part-time 
employees may be paid at their minimum rate of pay if they have not worked for 
more than 10 hours in a day or 38 hours in the week. The work should attract a 
penalty rate to compensate for the disutility of the work

 employers may refuse payment to employees who do not provide a timesheet but 
there is no obligation on the employer to inform the employee ‘of the appropriate 
record keeping practices’

 the proposed clause explicitly excludes ‘administrative tasks’, yet it appears that the 
application is directed at administrative tasks, and

 clause 28.3 does not apply where an employee performs work under the proposed 
clause: ‘This means employees could be required to attend work after a disrupted 
rest period or after working a significant amount of overtime’. 

[657] In its supplementary submissions in reply dated 2 October 2019 the HSU broadly 
adopted the ASU’s submissions.520

[658] On 15 October 2019 ABI filed an amended draft determination dealing with ‘remote 
response’ directed at seeking to narrow the issues in dispute between the parties. 

[659] Later, some minor amendments were made to ABI’s proposed variation in its further 
amended draft determination filed on 10 February 2020. In its final form ABI proposes the 
following variations: 

                                               

519 UWU Submission, 13 September 2019 at paras 50 – 53.
520 HSU Submission, 2 October 2019 at para 7.






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‘3. By deleting clause 20.9 and inserting in lieu thereof: 

20.9 On call allowance 

An employee required by the employer to be on call (i.e. available for recall to duty at the 
employer’s or client’s premises and/or for remote response duties) will be paid an allowance 
of: 

(i) $19.78 for any 24 hour period or part thereof during the period from the time of 
finishing ordinary duty on Monday to the time of finishing ordinary duty on Friday; or 

(ii) $39.16 in respect of any other 24 hour period or part thereof on a Saturday, Sunday, or 
public holiday. 

4. By inserting at clause 3.1: 

3.1 In this Award, unless the contrary intention appears: 

Workplace means a place where work is performed except for the employee’s residence. 

5. By deleting clause 28.4 and inserting in lieu thereof: 

28.4 Recall to work 

(a) An employee who is recalled to work overtime after leaving the workplace and requested 
by their employer to attend a workplace in order to perform such overtime work will be 
paid for a minimum of two hours’ work at the appropriate rate for each time recalled. If the 
work required is completed in less than two hours the employee will be released from 
duty. 

6. By inserting new clauses 28.5 and 28.6: 

28.5 Remote response when not on call 

(a) An employee who is not required to be on call and who is requested to perform work by 
the employer via telephone or other electronic communication away from the workplace (a 
remote response request) will be paid at the appropriate rate for a minimum of one hour’s 
work on each occasion a remote response request is made, provided that multiple remote 
response requests made and concluded within the same hour shall be compensated within 
the same one hour’s payment. Any time worked continuously beyond one hour will be 
rounded to the nearest 15 minutes and paid accordingly. 

(b) Any further requests to perform remote response work will be paid an additional one hour 
for each time so requested provided that multiple remote response requests made and 
concluded within the same hour shall be compensated within the same one hour’s 
payment. 

(c) An employee who performs work in accordance with this clause 28.5 must maintain and 
provide to their employer a time sheet specifying the time at which they commenced and 
concluded performing any work away from the workplace and a description of the work 
that was undertaken. This record must be provided to the employer prior to the end of the 
next full pay period or in accordance with any other arrangement as agreed between the 
employer and the employee. 








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(d) The employer is not required to pay an employee for any time spent performing work 
away from the workplace in accordance with this clause if the employee does not comply 
with the requirements of clause 28.5(c). Clause 28.5(d) does not apply if the employer has 
not informed the employee of the reporting requirements. 

(e) Clause 28.5 does not apply to an employee performing remote response duties in 
accordance with clause 28.6 of this Award.

28.6 Remote response when on call 

(a) Clause 28.6 applies to an employee who is required to be on call and who is required to 
perform work by the employer via telephone or other electronic communication away from 
the workplace. 

(b) Where an employee is directed or authorised by their employer to perform remote 
response duties: 

(i) between 6.00am and 10.00pm, the employee will be paid at the appropriate rate 
specified in this Award for any such work performed between these hours, with a 
minimum payment of 15 minutes. Where an employee undertakes multiple 
separate instances of remote response duties during a particular period and the 
total time spent performing those duties does not exceed 15 minutes, only one 
minimum payment is payable. Time worked past 15 minutes will be rounded up to 
the nearest 15 minutes. 

(ii) between 10.00pm and 6.00am the employee will be paid at the appropriate rate for 
a minimum of 45 minutes work on each occasion a remote response request is 
made, provided that if multiple remote response requests are made and concluded 
within the same 45 minute period they shall be compensated within the same 45 
minute payment. Any time worked continuously beyond each 45 minute period 
will be rounded up to the nearest 15 minutes and paid accordingly. 

(c) An employee who performs remote response duties must maintain and provide to their 
employer a time sheet specifying the time at which they commenced and concluded 
performing any remote response duty and a description of the work that was undertaken. 
This record must be provided to the employer prior to the end of the next full pay period or 
in accordance with any other arrangement as agreed between the employer and the 
employee. 

(d) The employer is not required to pay an employee for any time spent performing remote 
duties if the employee does not comply with the requirements of clause 28.6(c). Clause
28.6(d) does not apply if the employer has not informed the employee of the reporting 
requirements.’

B The Submissions

[660] ABI submits that its proposal is intended to provide a scheme of remuneration for 
situations where an employee is required, outside of their working hours, to provide advice or 
assistance remotely. ABI submits that this is not a novel claim or provision, and that similar 
types of provisions appear in:

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 the Local Government (State) Award 2014 (NSW) (at clause 19E) 

 the Water Industry Award 2020 (at clauses 20.4(d) and 20.6(d)) 

 the Business Equipment Award 2020 (at clauses 20.6(d) and 20.7), and 

 the Contract Call Centres Award 2020 (at clauses 20.4(c), 20.7).521

[661] The relevant extracts from the above awards are set out at Attachment H.

[662] ABI submits that its proposal provides a fair and relevant minimum safety net 
payment regime for this type of remote work, which is proportionate to the lower level of 
disutility associated with remote work. 

[663] NDS supports the revised ABI claim in relation to remote response, and the 
consequential amendments to the on-call provisions and the recall to work overtime 
provisions.

[664] NDS relies on its submission of 2 July 2019 at [41] – [57] and supports the ABI 
submission of 2 July 2019 and the amended draft determination filed on 15 October 2019.  
NDS also supports the submission of AFEI of 3 July 2019 at [13] and [14].

[665] AFEI does not oppose the ABI claim, subject to clarification that the provisions only 
apply to ‘response’ duties and do not apply to employees who are under a general instruction 
or requirement to undertake work from home, including routine overtime work (or simply to 
ensure projects are completed within deadlines), which is performed from home.

[666] AFEI proposes the following amendments to ABI’s claim:522

‘28.5 Remote response when not on call

(a) An employee who is not required to be on call and who is requested by the 
employer to perform work on a particular occasion for a particular unplanned incident
by the employer where the work is a response via telephone or other electronic 
communication away from the workplace.

28.6 Remote response when on call

(a) This clause applies to an employee who is required to be on call and who is 
required by the employer to perform work on a particular occasion for a particular 
unplanned incident by the employer where the work is a response via telephone or 
other electronic communication away from the workplace.’

[667] In reply, ABI acknowledges the concern expressed by AFEI in relation to the wording 
proposed by its clients for triggering the operation of the clause (that is, where an employee is 
‘requested or required to perform work by the employer via telephone or other electronic 
communication away from the workplace’). 

                                               

521 This list has been updated to reflect the clause numbering of the new 2020 modern awards. 
522 AFEI Submission, 19 November 2019 at para 1.25.






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[668] While ABI accepts that concern, it does not consider that the specific variation 
proposed by AFEI is sufficiently clear to alleviate the concern raised and submitted: 

‘if the Commission is minded to introduce more precision as to the notion of “remote response 
work, ABI considers that the better approach to achieving this objective would be to include a 
definition of “remote response work” or “remote response duties”.’523

[669] Ai Group’s response to ABI’s claim is set out at [71] – [79] in its submission of 
18 November 2019.

[670] Ai Group’s overarching position in relation to each of the proposals relating to remote 
response work is as follows:

 Ai Group is not calling for any variation to the SCHADS Award directed at 
imposing new obligations on employers in relation to ‘remote response’ work

 should the Full Bench nonetheless be minded to vary the SCHADS Award to 
include a term relating to ‘remote response’ work, Ai Group submits that ABI’s 
proposal ought to be preferred over that advanced by the HSU and ASU, and

 ABI’s proposal strikes a more reasonable balance between the interests of 
employers and employees. It is an appropriately conservative approach to the 
imposition of new obligations upon employers given the potential for such new 
provisions to have adverse consequences.  There is also some difficulty of robustly 
assessing these matters given the nature and lack of evidentiary material relating to 
this issue advanced by the parties seeking the change.

[671] Ai Group submits that ABI’s proposal is intended to achieve the following outcomes: 

 to clarify that the recall to work overtime provisions apply in circumstances where 
an employee is required to return to a workplace that is not their domestic residence 
to undertake overtime work

 to introduce a new mechanism for determining the remuneration of employees for 
work undertaken at their domestic residence, via telephone or other means of 
electronic communication, which provides for different entitlements depending 
upon whether the employee undertakes such work while ‘on call’ or while not ‘on 
call’, and

 to clarify that an employee is required to be ‘on call’ for the purposes of clause 20.9 
if they are required to be available for ‘remote response duties’. 

[672] Ai Group notes that ‘remote response duties’ does not appear to be defined in ABI’s 
proposal, although its meaning can be gleaned implicitly from the terms of clauses 28.5 and 
28.6. Ai Group understands ‘remote response duties’ to be work that is required to be done by 
the employee via a telephone or other electronic device away from the workplace.

                                               

523 ABI Submission, 10 February 2020 at p 58.






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[673] In reply, ABI agrees with Ai Group’s characterisation of the intention of its proposal 
and proposed that if the Commission is minded to introduce more precision as to the notion of 
‘remote response work’ or ‘remote response duties’, then this could be done by inserting a 
definition in the following terms:

‘In this award, remote response duties means the performance of the following activities: 

(a) Responding to phone calls, messages or emails; 

(b) Providing advice (“phone fixes”); 

(c) Arranging call out/rosters of other employees; and

(d) Remotely monitoring and/or addressing issues by remote telephone and/or computer 
access.’524

[674] The various Unions oppose ABI’s amended claim.

[675] In response to ABI’s amended claim the HSU relies on its submissions of 2 October 
2019,525 in which it broadly adopted the ASU’s submissions which were directed at ABI’s 
initial claim. 

[676] In its submission of 19 November 2019, the ASU address ABI’s amended claim, as 
follows:

‘We note that ABI filed an amended draft determination in respect of their remote response and 
recall to work overtime clause. Our submissions of 16 September 2019 remain relevant to the 
amended draft determination. The ABI draft determination does not provide an appropriate 
rate of payment to employees who are recalled to work overtime away from the workplace. It 
is also a complicated provision that will be difficult to implement in practice.’526

[677] The UWU submits that [49] and [52] of its submission of 13 September 2019 remain 
relevant to ABI’s amended claim.527 These paragraphs are set out below:

‘49. ABI and others have filed a draft determination to insert a clause addressing remote 
response duties. We do not oppose the insertion of a remote response clause, however we do 
not support the terms as proposed by ABI and others.

. . .

52. Remote response duties are performed outside of rostered hours, and should be paid at 
overtime rates. If remote response duties are not costed effectively, this could result in some 
employers requiring employees to work multiple instances of remote response across a long 
period of time, effectively disrupting any rest break the employee is entitled to between shifts.’

                                               

524 ABI Submission, 10 February 2020 at p 58.
525 HSU Submission, 18 November 2019 at para 155.
526 ASU Submission, 19 November 2019 at para 123.
527 UWU Submission, 18 November 2019 at para 85.






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[678] The Joint Union submission of 10 February 2020 does not address the terms of ABI’s 
amended claim.

5.6.3 The Union Claims

A The Claim

[679] The HSU initially sought to vary clause 28.4 to include a new sub-clause dealing with 
circumstances where an employee is required to perform work from home after leaving the 
employer’s or client’s premises. Under the HSU proposal, the employee would have been 
entitled to a minimum of 1 hours’ pay at overtime rates ‘for each time recalled’.528

[680] The following question was posed to the HSU in Background Paper 1 (Q23):

How does the proposed clause operate in the event that an employee responds to, say, three 
phone calls within the same one hour period?

[681] The HSU responded that it does not press for the adoption of its draft clause and 
supports the ASU draft determination.529 We need to say no more about the HSU proposal.

[682] The ASU’s claim seeks the deletion of clause 28.4 and the insertion of a new clause, 
as follows:530

‘28.4 Recalled to work overtime

(a) An employee who is recalled to work overtime after leaving the workplace and 
requested by their employer to attend a workplace in order to perform such overtime 
work will be paid for a minimum of two hours’ work at the appropriate overtime rate 
for each time recalled. If the work required is completed in less than two hours the 
employee will be released from duty. 

(b) An employee who is not required to be on call and who is requested to perform work 
by the employer via telephone or other electronic communication away from the 
workplace will be paid at the appropriate overtime rate for a minimum of two hours 
work. Multiple electronic requests made and concluded within the same hour shall be 
compensated within the same one hour’s overtime payment. Time worked beyond two 
hours will be rounded to the nearest 15 minutes. 

(c) An employee who is required to be on call and who is requested to perform work by 
the employer via telephone or other electronic communication away from the 
workplace will be paid at the appropriate overtime rate for a minimum of one hours 
work. Multiple electronic requests made and concluded within the same hour shall be 
compensated within the same one hour’s overtime payment. Time worked beyond one 
hour will be rounded to the nearest 15 minutes.’

[683] The ASU submits that its proposed variation gives effect to the following principles:531

                                               

528 See HSU Amended Draft Determination, 15 February 2019 at [16].
529 Joint Union Submission, 10 February 2020 at para 188.
530 ASU Submission 23 September 2019.
531 ASU Submission 23 September 2019 at para 7.






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1. Remote work, like physical recall to the workplace, should be voluntary and 
paid at overtime rates.

2. There should be a clear incentive for remote work to only occur while an 
employee is required to be on call. This can be achieved by a structure of 
minimum payments.

3. A 2 hour minimum payment at overtime rates should apply where an employee 
works remotely when they are not required to be on call. This aligns with the 
minimum payment for a recall to work overtime at the physical workplace.

4. A 1 hour minimum payment should apply where an employee works remotely 
when they are required to be on call. This aligns the minimum payment for 
remote work while on call with the minimum payment for work performed 
during a sleepover.

5. Further, because this is a significant expansion of the current ‘on call 
provision’, cl 25.3–Rostered days off should be varied to ensure that on call 
time counts as duty for the purposes of the clause. This is to ensure that the 
expansion of the scope of on call work does not reduce an employee’s personal 
time.

B The Submissions

[684] The ASU relies on their submission dated 23 September 2019.

[685] The ASU submits that there is ‘significant disutility to the employee associated with
working outside of ordinary hours even if they are not recalled to the physical
workplace.’532 The ASU relies on the witness statements of Deborah Anderson and
Emily Flett in support of its application and submits that:

‘Both witnesses report that while they derive satisfaction from their work and feel loyal to
their clients, the hardship of on call work is significant. Both witnesses describe the
severe physical, psychological and social impact on working remotely. In both cases, their
employer has offered an above award two hour minimum payment at overtime rates to attract
them to the work. Both witnesses report that they would be less willing to do this work if they 
were paid any less.’533

[686] We note that both of the witnesses referred to are rostered to be ‘on call’. We also note 
that the relevant part of Ms Flett’s statement was withdrawn following an objection from the 
employer parties.534 In these circumstances the ASU is not able to rely on this aspect of Ms 
Flett’s evidence.

                                               

532 ASU Submission, 23 September 2019 at para 6.
533 ASU Submission, 23 September 2019 at para 6.
534 See Exhibit ASU5 – Schedule of employer objections to statements of Emily Flett and Augustino Encabo, para 16. Also 

see Transcript, 18 October 2019 at PN3353-3380.






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[687] The various employer interests oppose the ASU’s claim.

[688] ABI states that it is opposed to the ASU claim and has advanced a separate proposal to 
introduce a remote response duties compensation regime.

[689] In its submission of 18 November 2019 Ai Group identifies 6 broad issues with the 
ASU claim.

1. Handling multiple requests

[690] Ai Group submits that there is merit in the proposition that any remote response clause 
should ensure that each discrete activity does not necessarily trigger a separate minimum 
payment:

‘It would be unfair to employers if…an employee undertook say three short phone calls…each 
of only a few minutes duration and the employer was required to provide 6 hours pay’.535

[691] Ai Group submits that there is no apparent basis for the ASU proposal that only 
multiple requests within the same hour are compensated ‘within the same one hour’s overtime 
payment when the minimum payment proposed is for two hours’ work’.536 Ai Group submits 
that under the ASU’s proposal an employee could handle 2 separate requests during a 2 hour 
period and be entitled to more than 2 hours’ pay. 

2. The circumstances which attract payment

[692] Ai Group submits that there is a lack of clarity associated with the description of the 
activities which attract payment under the ASU’s proposal. Clauses 28.4(b) and (c) provide 
that the trigger for payment is when the employee is ‘requested to perform work by the 
employer via telephone or other electronic communication away from the workplace’. 

[693] Ai Group submits that it is unclear whether an employee is to be paid for work 
undertaken away from the workplace in response to a telephone call or electronic 
communication to work, or whether it is the work of actually answering a telephone call or 
electronic communication which attracts a payment (Ai Group assumes it is the latter). 

[694] Ai Group also submits that an employee who is ‘on call’ who is checking their phone 
or emails to check for requests to work may be caught by the ASU proposal and be entitled to 
payment under clause 28.4(c). Further, clause 28.4(c) does not appear to only apply to 
circumstances where an employee is working outside of their rostered or scheduled work:

‘Instead, it simply applies to work that is undertaken away from the workplace. This would 
capture circumstances where an employee is permitted to work from home or some other 
convenient location as part of their ordinary duties’.537

3. Record keeping

                                               

535 Ai Group Submission, 18 November 2019 at para 112.
536 Ai Group Submission, 18 November 2019 at para 113.
537 Ai Group Submission, 18 November 2019 at para 118.






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[695] The ASU’s proposal contains no mechanism for ensuring that the time an employee 
spends working remotely is recorded and communicated to their employer. 

4. The appropriate rate of pay

[696] The ASU’s proposal requires that all remote response work be paid at overtime rates, 
regardless of whether the work is undertaken during overtime or ordinary hours. Ai Group 
submits538 that this is inappropriate for 3 reasons:

(i) employees may be performing their ordinary hours of work at home as part of 
their usual working arrangements and may be part of their rostered hours of 
work;

(ii) the proposal ‘greatly restricts an employer’s capacity to utilise casual and part-
time employees to perform work at home at ordinary hourly rates’. At present 
casual and part-time employees can work outside their rostered hours at 
ordinary rates, subject to such hours not exceeding specified daily, weekly or 
fortnightly limits; and

(iii) the work itself is not ‘overtime’, at least for casual and part-time employees; 
but would be paid at overtime rates. 

[697] Ai Group submits that remote response work should only attract the rates that would 
ordinarily be applicable (which may be ordinary rates, overtime rates or penalty rates). 

5. An incentive to put employees ‘on call’ and minimum payment periods

[698] Ai Group submits that there is ‘some logical force’ to the ASU’s proposal that a 
remote response or recall clause provide an incentive for an employer to put an employee ‘on 
call’ where they may be requested to perform work related activities outside of ordinary 
working hours; but this should not be overstated. Ai Group agrees with having a shorter 
minimum payment in circumstances where the employee is paid an ‘on call’ allowance. Ai 
Group submits that ABI’s proposal provides ‘a sensible structure of escalating levels of 
minimum payment’, namely:

 a 2 hour minimum payment to an employee actually required to attend a workplace 
other than their residence

 a 1 hour minimum payment when required to work remotely while not on call, and

 when an employee is ‘on call’ (and being paid an on-call allowance), a 15 minute 
minimum payment during the day and a 45 minimum payment at night. 

[699] Ai Group submits that the ASU’s proposed 2 hour minimum is not justified: 

                                               

538 Ai Group Submission, 18 November 2019 at para 130; Ai Group Submission, 13 July 2019 at paras 461 – 466.






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‘It is disproportionate to what might, at least in some instances, be a very short period of work 
undertaken without the employee incurring the cost or inconvenience of travelling to some 
other location…

It is not possible to reconcile the proposition that the employee should be paid for two hours 
when they perform a small amount of work, in their own home, with the reality that an 
employee is entitled to two hours payment when they undertake overtime work away from 
their home under both the current terms of clause 28.4 and the ASU proposed provision.’539

6. Issues associated with clause 28.3

[700] Ai Group submits that if we are satisfied that remote response work warrants specific 
recognition in the SCHADS Award then ‘it would be sensible to amend clause 28.3’:

‘Clause 28.3(a) provides for an employee, other than a casual, to have 10 consecutive hours off 
duty after completing overtime and before the commencement of their ordinary work on the 
next day or shift. 

Clause 28.3(b) provides a further entitlement to double time payments when an employee is 
not provided the requisite 10 hour break. 

If an employee performs a small amount of work which is undertaken remotely and in the 
nature of that which appears to be contemplated by ABLA’s Clients’ and the ASU’s claims, it 
is not justifiable for the application of clause 28.3 to be triggered. For example, an employee 
who receives a 5 minute phone call during the 10 hour break (by perhaps only an hour before 
its conclusion) should not be subsequently entitled to a further 10 consecutive hours off duty 
without loss of pay. 

Clause 25.3 does not appear to currently contemplate that work may be undertaken remotely. 
So much is apparent from the clause’s contemplation of an entitlement to be “absent” under 
clause 28.3(b) until they have had the requisite 10 hour break.’540

[701] AFEI opposes the ASU claim and relies on its submissions of 23 July 2019 in 
response to the HSU’s claim to vary the recall to work provisions, in particular:

 work subsequently performed at home does not meet the ordinary meaning of a 
‘recall’, that is ‘a person who is recalled is summoned to return to a place in a 
manner where there is a requirement for the person to return’541

 there is no basis for imposing a minimum payment of 1 hour for responding to a 
phone call or performing any of the other duties identified in the claim when the 
employee is at home, is not required to leave home and:

 is not inconvenienced by losing any time associated with travelling to 
perform work and then returning home

 is not incurring the expense of unpaid travel to work, and

                                               

539 Ai Group Submission, 18 November 2019 at paras 139 - 140.
540 Ai Group Submission, 18 November 2019 at paras 150 – 153.
541 AFEI Submission, 23 July 2019 at para 128 citing [2018] FWC 4334 at [59]. 






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 is not expected to wear work clothes or change into a work uniform,

 the proposal imposes a minimum payment at overtime rates for work that does not 
necessarily involve overtime

 it is likely that the individual incidents of the work identified would take 
substantially less than 1 hour and could be as short as 5 minutes to respond to a 
phone call or message. The claim could result in an employee being paid an 
amount which is ‘extremely disproportionate’ to the work performed

 the proposal provides that the employee would need to be ‘required’ to perform 
work from home:

‘it does not specify who/from where the ‘requirement’ arises. An employee might claim 
an entitlement under the provision for working from home where they have self-
determined that they are required to perform the work, where this has not been 
authorised by the employer’. 

 the provision does not require the employee to provide any evidence of the time 
undertaken in performing the work from home or the extent of the work performed. 

[702] As to the ASU’s draft determination, AFEI notes that the provision takes effect when 
the employee is requested to perform work by the employer via telephone or other electronic 
communication away from the workplace. AFEI submits that this element of the claim: 

‘This would widen the application of the provision from response work (i.e. being ‘recalled to 
work’ due to a specific instruction or direction from an employer on a particular occasion and 
for a more particular purpose.), to potentially circumstances where an employee undertakes 
routine/general overtime work (potentially as part of their core responsibilities, pursuant to a 
general instruction or requirement)… [and] could potentially cause confusion in respect of 
whether an employee is performing overtime or remote response work, and thus whether 
remote response provisions will apply.’542 (footnotes omitted)

[703] AFEI also submits that the ASU’s proposed variation could increase the regulation of 
employees who routinely undertaken overtime work as part of the nature/seniority of their 
position.

5.6.4 The Evidence

[704] ABI relies on the evidence of 3 witnesses: Mr Darren Mathewson,543 Ms Deb Ryan544

and Mr Scott Harvey.545

                                               

542 AFEI Submission, 19 November 2019 at paras 1.9 – 1.10.
543 See generally, Exhibit ABI2 – Witness Statement of Darren Mathewson, 12 July 2019; Transcript, 17 October 2019, 

cross-examination at PN2303 – PN2518.
544 See generally, Exhibit ABI6 – Witness Statement of Deb Ryan, 12 July 2019; Transcript, 18 October 2019, cross-

examination at PN2946 – PN3095.
545 See generally, Exhibit ABI7 – Witness Statement of Scott Harvey, 2 July 2019; Transcript, 18 October 2019, cross-

examination at PN3107 - PN3152.






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[705] Mr Mathewson is the Executive Director at Aged and Community Service Australia 
for NSW, Australian Capital Territory, Tasmania and Victoria. Mr Mathewson’s evidence 
was general in nature in which he describes the aged care workforce546 and the various 
reforms and programs in the home sector including consumer directed care. At [72] – [74] of 
his statement Mr Mathewson deals with the impact of various reforms on financial 
performance in the sector. 

[706] Ms Ryan is the CEO of Community Care Options Limited. Community Care Options 
Limited provides aged care home care packages and NDIS services; and employs about 170 
employees. Ms Ryan’s evidence relating to recall to work is set out at [73] – [76] and [78] –
[79] of her statement: 

‘We don’t recall employees to the workplace, but we have staff on call. We provide an above 
award on call allowance. 

The Company provides an on call service to clients and staff between6.00am and 8.30am and 
4.30pm to 10.00pm Monday to Friday, and from 6.00am to 10.00pm on weekends and public 
holidays. 

The person on call only answers the phone, they don’t have to go out and attend to anything. 
We pay $50.00 per day on weekdays and $100.00 per weekend day. Employees are allocated 
two weeks per year for on call. They work one full week on call in first 6 months and one in 
second six months. They are paid $450.00 for the week (in addition to their wages) to answer 
the phone and manage whatever the call requires. 

Some days the on call person will receive no calls, and some days they could receive 10 calls.

Reasons that clients use the on call service can be to change their service, to inform us that 
they are going to hospital and for cancellations. Clients are asked only to use the on call 
service if the issue is urgent. 

Employees use the on call service to call in sick or if they need to change their shift. They also 
use the service if they require support with a client issue. We encourage employees to use it 
for this purpose as we want our staff to feel well supported. The on call person will assist by 
amending the roster.’

[707] Mr Harvey is the Operations Manager at ConnectAbility Australia Limited. 
ConnectAbility provides a range of social, community home care and disability services to 
over 600 clients across the Hunter Region and Central Coast regions of NSW, and employs 
about 270 employees. Mr Harvey’s evidence relating to ‘recall to work’ is set out at [61] –
[63] of his statement: 

‘ConnectAbility has an on-call team for its community supports service provision. This role is 
currently provided by Team Leaders and Rostering staff. Community support workers are not 
engaged to provide on-call responsibility as part of their role. 

ConnectAbility also has an on-call team for supported independent living (SIL) operations. 
This role is currently provided by accommodation coordinators and managers. Residential 
support workers are not engaged to provide on-call responsibilities as part of their role. 

                                               

546 Exhibit ABI2 – Witness Statement of Darren Mathewson, 12 July 2019 at paras 19 – 24.








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The on-call process is implemented to ensure Direct Support staff members have access to 
emergency support and advice after hours. The on call role is to provide advice to minimise 
any risk, ensure compliance with legislative requirements and policy and procedure and to 
provide support to staff experiencing critical issues.’

[708] The ASU relies on aspects of Dr Stanford’s evidence, the Muurlink Report and the 
evidence of 2 witnesses: Ms Deborah Anderson547 and Ms Emily Flett.548

[709] Ms Anderson is a Shared and Supported Living Coordinator with The Leisure Life 
Village NSW. Ms Anderson is rostered to be ‘on call’ once a week, from 5.00pm until 8.00am 
the following morning and sometimes on weekends (between 9.00am and 9.00am). Ms 
Anderson sets out the duties she performs while ‘on call’, at [17] – [22] of her statement 
which include:

 responding to emergencies

 administrative tasks such as rostering

 providing phone advice and assisting less experienced staff, including providing 
advice on medication issues and recommending corrective action when equipment 
is not functioning correctly, and

 finding staff members to fill in when another staff member is sick or has to leave 
work early.

[710] Ms Anderson is paid an above Award allowance of $30.00 when rostered on call 
between Monday and Friday, and $50.00 when rostered on call on weekends and public 
holidays. When working while rostered on call Ms Anderson is paid at the rate of time and 
half for the first 2 hours and double time after that.549

[711] At [23] of her statement Ms Anderson states that she is ‘not usually required to work 
out of hours unless…rostered to be on call’:

‘I am not usually required to work out of hours unless I am rostered to be on call. If I am 
contacted out of hours, this is usually just a telephone call from a new coordinator or a more 
junior staff member with a quick enquiry. There is no overt expectation from my employer to 
do this work. However, there is a clear expectation that I will be available to answer calls from 
management outside of working hours. But this does not happen very often and has only minor 
impact on me.’

[712] Ms Anderson discusses the impact of on call work at [24] of her statement:

‘When I am on call, I cannot leave my home as I need to have phone, internet and computer 
access. I must also be ready and able to respond to any requests for work. I cannot go 
anywhere nor do anything else. This is particularly difficult on weekends when doing an on 

                                               

547 See generally, Exhibit ASU1 – Witness Statement of Deborah Anderson, 2 September 2019.
548 See generally, Exhibit ASU8 – Witness Statement of Emily Flett, 22 September 2019. 
549 Exhibit ASU1 – Witness Statement of Deborah Anderson, 2 September 2019 at para 22.








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call shift from 9am until 9am. This causes high anxiety for me as I could be called out to any 
site to handle difficult incidences. This has occurred 3 times so far, and once resulted in me 
having to do a 23 hour shift. This can also result in me being required to attend at two places at 
the one time which is highly stressful as I can’t go to a house to attend an incident when I am 
already attending an incident at another house.’

[713] Ms Flett is an After Hours Practitioner with Anglicare Victoria. Ms Flett works in a 
team that provides after hours on call support to staff, volunteers and young people in 
Anglicare’s care:

‘I work in a dedicated team that provides after hours on call support to staff, volunteers and 
young people in our care. We work from the Anglicare Offices in Collingwood, we respond to 
phone calls from all regions of the metro area. This position tests you out because you get a 
variety of calls every night, some of these calls are day to day issues, such as staffing matters, 
but we spend a lot of our time providing risk mitigation and managing crisis. The position is 
relatively senior as it holds a large amount of responsibilities and Anglicare staff calling in can 
use this management structure for support, guidance and direction, while out of hours for their 
regular line manager.

Anglicare created our dedicated on-call team to address the impact of on call work on staff 
performing their regular duties during the day time and to reduce the impacts on them as 
previously, house managers, specialist practitioners and other frontline staff were required to 
be on call. Now this work has been given to our team so appropriate breaks can be structured 
in to a roster and we reduce burnout on valuable staff.’550

[714] Ms Flett works 10 to 15 ‘recall’ hours each fortnight and is paid 2 hours’ pay at double 
time when she receives a call.551

[715] Ms Flett discusses the impact of on call work at [21] – [25] of her statement, noting 
that if she works through the night on call she feels exhausted the following day; ‘cannot 
exercise at a high level’, ‘cannot ride my motorbike or pushbike’, finds it ‘harder to engage’ 
with her partner friends and family and doesn’t have the energy to socialise. 

[716] As to Dr Stanford’s evidence we have already observed that the Stanford Report has 
‘serious deficiencies’ (see [171]] – [186] above) and that we have derived little assistance 
from Dr Stanford’s evidence. 

[717] We have also already dealt with the Muurlink report (see [154] – [157]), noting that 
while its direct relevance to the claims before us is somewhat limited, we accept the general 
proposition that working irregular or unsystematic hours can have a negative effect on 
physical and psychological health. We also accept, again as a general proposition, that a 
worker’s sense of control at work is connected to worker well-being.

[718] In relation to both the ABI and ASU witness evidence we would make the general 
observation that the evidence is largely confined to ‘on call’ work. The evidence is of limited 
relevance to the circumstances where an employee is not ‘on call’, or rostered to work, who is 

                                               

550 Exhibit ASU8 – Witness Statement of Emily Flett, 22 September 2019 at paras 9 – 10.
551 Exhibit ASU8 – Witness Statement of Emily Flett, 22 September 2019 at para 16 ‘and no more if I receive 20/30 calls in 

that same period, once I get a call in the next call block after the two hours I will again be paid another two hour block’.








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contacted and required to perform certain work functions remotely without physically 
attending work premises. 

[719] In our view the following findings are largely uncontentious:

1. Employees covered by the SCHADS Award are requested or required, from 
time to time, to perform ‘remote work’ (i.e. work away from the workplace) at 
times outside of their rostered working hours.

2. Given the nature of the SCHADS sector it is necessary to have arrangements in 
place for out of hours work.552

3. Employers have different practices in place for ensuring that employees are 
available to receive calls or otherwise respond to emergencies or other 
inquiries or issues that may arise.553

4. There is disutility associated with performing work outside of ordinary hours 
in circumstances where the employee is not recalled to a physical workplace 
(i.e. remote response work).

[720] The evidence does not support any findings beyond these general propositions. 

5.6.5 Consideration

[721] It seems to us that there is broad support from most of the employer interests and the 
Unions for the introduction of a term in the SCHADS Award dealing with ‘remote response’ 
work, or work performed by employees outside of their normal working hours and away from 
their working location. 

[722] We agree that it is necessary to introduce an award term dealing with remote response 
work and make the following general observations about such a term:

1. A shorter minimum payment should apply in circumstances where the 
employee is being paid an ‘on call’ allowance.

2. There is merit in ensuring that each discrete activity (such as a phone call) does 
not automatically trigger a separate minimum payment.

3. A definition of ‘remote response work’ or ‘remote response duties’ should be 
inserted into the Award. We note that ABI proposes the following definition:

‘In this award, remote response duties means the performance of the following 
activities: 

(a) Responding to phone calls, messages or emails; 

                                               

552 Exhibit ABI6 – Witness Statement of Deb Ryan, 12 July 2019 at para 78.
553 Some employers have dedicated ‘on call teams’, while others utilise the general workforce who may be on call from time 

to time.








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(b) Providing advice (“phone fixes”); 

(c) Arranging call out/rosters of other employees; and

(d) Remotely monitoring and/or addressing issues by remote telephone 
and/or computer access.’554

4. The clause should include a mechanism for ensuring that the time spent by an 
employee working remotely is recorded and communicated to their employer.

[723] While there is a significant degree of overlap between the ASU and ABI proposals, the 
key difference relates to the scheme of remuneration to be applied when employees perform 
remote response work.

[724] In essence the ASU seeks to introduce a regime whereby: 

 employees who are not required to be on call but are requested to perform work 
while away from the workplace are paid at the appropriate overtime rate for a 
minimum of 2 hours work, with time worked beyond 2 hours rounded to the nearest 
15 minutes, and 

 employees who are required to be ‘on call’ and requested to perform work away 
from the workplace while on call will be paid at the appropriate overtime rate for a 
minimum of 1 hours’ work, with time worked beyond 1 hour rounded to the nearest 
15 minutes. 

[725] ABI’s amended claim also provides for different entitlements depending upon whether 
the employee is required to be ‘on call’ for the purpose of clause 20.9 (and paid an on call 
allowance). 

[726] If an employee is not ‘on call’ a remote response request is paid at the ‘appropriate 
rate’ for a minimum of 1 hours’ work on each occasion a remote response request is made, 
provided that multiple remote response requests made and concluded within the same hour are 
compensated within the same 1 hour’s payment. 

[727] If an employee is ‘on call’ then the relevant minimum payment in respect of 
performing remote response work depends on when the remote response duties are performed. 
ABI proposed that employees be paid:555

 at the minimum rate of pay for work performed between 6.00am and 10.00pm, with 
a minimum payment of 15 minutes, and

 at the applicable rate of pay for work performed between 10.00pm and 6.00am with 
a minimum payment of 45 minutes. 

                                               

554 ABI Submission, 10 February 2020, p 58.
555 ABI Submission, 2 July 2019 at para 6.6.






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[728] In all circumstances remote response work is paid at ‘the appropriate rate’; it is only 
the minimum payment which varies. We return to this issue shortly.

[729] Determining an appropriate monetary entitlement for this type of work involves an 
assessment of the value of the work and the extent of disutility associated with the time at 
which the work is performed. In the Penalty Rates Case, the Full Bench observed at [202]:

‘A central consideration in this regard is whether a particular penalty rate provides employees 
with 'fair and relevant' compensation for the disutility associated with working at the particular 
time(s) to which the penalty attaches.’

[730] As mentioned earlier, we accept that there is disutility associated with performing 
remote response work. However, the level of disutility associated with employees performing 
remote response work is less than that experienced by employees who are recalled to a 
physical workplace or who are ‘on call’ to be recalled to work, as employees are not required 
to:

 stay in the vicinity of the workplace while on-call

 keep themselves, their work clothes and transport in a state of readiness while on-
call for a possible recall to work

 spend time travelling to or from the workplace if recalled to work, or

 incur additional travelling expenses (such as public transport fares, petrol or road 
tolls) if recalled to work.

[731] The ASU’s proposal requires that all remote response work be paid at overtime rates. 
Further, if the employee is not ‘on call’ (and receiving an ‘on call’ allowance) they are paid 
overtime rates for a minimum of 2 hours. If they are ‘on call’ the minimum payment is one 
hour at overtime rates.

[732] We are not persuaded that the ASU’s proposed minimum payments are warranted. We 
agree with Ai Group’s submission in respect of this aspect of the ASU’s claim: 

‘It is disproportionate to what might, at least in some instances, be a very short period of work 
undertaken without the employee incurring the cost or inconvenience of travelling to some 
other location…

[733] We see the logic inherent in the structure of ABI’s minimum payment regime but take 
a different view as to the minimum periods prescribed. Our provisional view is that the 
minimum payment for remote response work performed between 6.00am and 10.00pm should 
be 30 minutes and the minimum payment between 10.00pm and 6.00am should be 1 hour. 
However, we note that there is an inter-relationship between the minimum payment period 
and the rate of payment.

[734] The rate of pay applicable to remote response work (as opposed to the minimum 
payment) is problematic. 

[735] The ASU contends that all remote response work is to be paid at overtime rates, 
regardless of whether the work is undertaken during overtime or ordinary hours.








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[736] ABI’s amended claim provides that all remote response work is paid at ‘the 
appropriate rate’. Proposed clause 28.6(b)(i) states that ‘the employee will be paid at the 
appropriate rate specified in this Award for any such work performed between these hours’.

[737] It seems to us that the expression ‘the appropriate rate’ lacks clarity in this context and 
is apt to confuse. The ‘appropriate rate’ for such work depends on a range of factors, such as:

 Is the employee a full-time, part-time or casual employee?

 Is a shift allowance applicable?

 In which sector does the employee work? (e.g. if the employee is a full-time
employee different overtime rates apply depending on whether they are a ‘disability 
services, home care and day care employee’ or a ‘social and community services an 
crisis accommodation employee’: see clause 28.1(a))

 Does the remote response work constitute work in excess of 38 hours per week?

 Is the remote response work being performed on a Saturday or Sunday?

[738] It seems to us that ABI’s formulation – ‘the appropriate rate’ – gives rise to 
considerable complexity; a simpler formulation would be preferable.  In our view, this issue 
requires further consideration and will be the subject of a conference. Prior to the conference, 
ABI will be asked to provide further elaboration as to the meaning of ‘the appropriate rate’, as 
applied in a range of circumstances. A Notice of Listing for the Conference will be issued 
shortly. 

5.7 CLIENT CANCELLATION CLAIMS

5.7.1 Background

[739] Clause 25.5(f) of the SCHADS Award deals with client cancellation, as follows:

(f) Client cancellation

(i) Where a client cancels or changes the rostered home care service, an employee 
will be provided with notice of a change in roster by 5.00 pm the day prior and 
in such circumstances no payment will be made to the employee. If a full-time 
or part-time employee does not receive such notice, the employee will be 
entitled to receive payment for their minimum specified hours on that day. 

(ii) The employer may direct the employee to make-up time equivalent to the 
cancelled time, in that or the subsequent fortnightly period. This time may be 
made up working with other clients or in other areas of the employer’s 
business providing the employee has the skill and competence to perform the 
work.

[740] In short, employers may direct employees to make-up time equivalent to the cancelled 
time in that fortnight or during the subsequent fortnight.

[741] Clause 25.5(f) operates as follows: 








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 the clause applies only to ‘home care services’, an undefined term  

 where a client cancels or changes a rostered home care service the employer is 
required to provide an employee with notice of a change to their roster by 5pm the 
day before the scheduled service:

 if the employer notified the relevant employee before 5pm on the day prior 
that they are no longer required to work the employee is not entitled to any 
payment 

 where notice is not provided by 5pm the day prior, the employee is entitled to 
payment for their ‘minimum specified hours on that day’. 

 an employer may direct the employee to perform ‘make-up time equivalent to the 
cancelled time’, provided: 

 make-up time is worked in the same or the following fortnightly period; and

 the time may be made up working with other clients or in other areas of the 
employer’s business, if the employee has the skills and competence to 
perform the work.

5.7.2 The Claims

[742] ABI and the HSU both seek to vary clause 25.5(f). 

[743] The submissions and witness evidence relevant to each of ABI’s and HSU’s client 
cancellation claims are set out at Attachment I. 

A The ABI Claim

[744] ABI seeks to expand the scope of the current client cancellation clause to capture the 
provision of disability services in the community (for example, care services provided in the 
community to people with a disability).

[745] The ABI cancellation claim seeks to delete clause 25.5(f) and insert the following:

‘(f) Client cancellation

(i) Clause 25.5(f) applies where a client cancels or changes a scheduled home care or 
disability service, within seven days of the scheduled service, which a full-time or 
part-time employee was rostered to provide.

(ii) Where a service is cancelled by a client under clause 25.5(f)(i), the employer may 
either:

A. direct the employee to perform other work during those hours in which they 
were rostered; or

B. cancel the rostered shift.








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(iii) Where clause 25.5(f)(ii)(A) applies, the employee will be paid the amount payable had 
the employee performed the cancelled service or the amount payable in respect of the 
work actually performed, whichever is the greater.

(iv) Where clause 25.5(f)(ii)(B) applies, the employer must either:

A. pay the employee the amount they would have received had the shift not been 
cancelled; or

B. subject to clause 25.5(f)(v) and (vi), provide the employee with make up time 
in accordance with clause 25.5(f)(vi).

(v) The make up time arrangement cannot be utilised where the employee was notified of 
the cancelled shift after arriving at the relevant place of work to perform the shift. In 
these cases, clause 25.5(f)(iv)(A) applies.

(vi) The make up time arrangement cannot be utilised where the employer is permitted to 
charge the client in respect of the cancelled service. In these cases, clause 
25.5(f)(iv)(A) applies.

(vii) Where the employer elects to provide make up time:

A. the make up time must be rostered in accordance with clause 25.5(a);

B. the make up time must be rostered to be performed within 3 months of the 
date of the cancelled shift;

C. the employer must consult with the employee in accordance with clause 8A 
regarding when the make up time is to be worked prior to rostering the make 
up time; and

D. the make up shift can include work with other clients or in other areas of the 
employer’s business provided the employee has the skill and competence to 
perform the work.

(viii) Clause 25.5(f) is intended to operate in conjunction with clause 25.5(d) and does not 
prevent an employer from changing a roster under clause 25.5(d)(i) or (ii).’

[746] The current clause 25.5(d) provides: 

Change in roster

(i) Seven days’ notice will be given of a change in a roster.

(ii) However, a roster may be altered at any time to enable the service of the 
organisation to be carried on where another employee is absent from duty on 
account of illness, or in an emergency.

(iii) This clause will not apply where the only change to the roster of a part-time 
employee is the mutually agreed addition of extra hours to be worked such that 
the part-time employee still has four rostered days off in that fortnight or eight 
rostered days off in a 28 day roster cycle, as the case may be.








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[747] It is uncontentious that ABI’s proposed client cancellations clause would operate as 
follows: 

1. The clause would apply to home care and disability services.

2. In the event of a client cancellation, the clause would provide an employer with 
2 options:

Option 1: The employer would have the right to direct the employee to perform 
other work during the hours that they were rostered to work. 

In these circumstances the employer would be required to pay the employee the 
amount they would have been paid had the employee performed the cancelled 
service or the amount payable for the work actually performed; whatever is 
greater. 

Option 2: The employer would be permitted to cancel the shift. 

In these circumstances the employer would be required to: 

(i) pay the employee the amount they would have received had they 
performed the cancelled service, or  

(ii) provide the employee with make-up time. Such make up time must be 
rostered to be performed within 3 months of the date of the cancelled 
shift. The employer must consult with the employee about when the 
make-up time will be performed.

[748] ABI submits that where it is not feasible to redeploy an employee to other work in the 
event of a client cancellation, the employer should have the ability to cancel the employee’s 
rostered shift and offer them make-up time later. ABI submits that this type of regime is not 
new in the home care sector, including in situations where the in-home service is provided to 
a person with a disability but submits that it should be extended to the broader disability 
sector where supports are provided in the community.

[749] ABI submits that in respect of client cancellations there is a clear disconnect between 
the terms of the SCHADS Award and the funding arrangements under the NDIS and that this 
disconnect is having a materially adverse impact on the viability of businesses operating in 
this sector.

[750] NDS supports ABI’s proposed variation to the client cancellation provisions and 
submits that the variation would be consistent with the promotion of flexible modern work 
practices and the efficient and productive performance of work (s.134(1)(d) of the Act).

[751] NDS notes that the NDIS Price Guide for 2019-2020 has modified the funding 
arrangements in the event of client cancellation; but submits that despite the modification to 
the funding arrangements client cancellation remains a problem:

‘An employer still needs to be able to reallocate work in the event of a cancellation, if other 
work is available.  An example where this is important for reasons of efficiency and 








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productivity, is if the worker can be redeployed to backfill for another worker on unplanned 
personal leave. 

Notwithstanding the changes to the arrangements for cancellations under the NDIS Price 
Guide, the employer still has a problem in relation to cancellations made with more than 2 
days’ notice but less than 7 days.  If no other work is available to be allocated to the worker, 
then the worker is paid without having to perform work, and the employer is unable to charge 
the customer for this.  Furthermore, clause 25.5 (d) limits the ability of an employer to change 
a roster with less than 7 days’ notice to situations of illness or emergency.

The current clause 25.5(f) deals with this situation for home care workers by providing the 
option using make up time by the end of the following fortnightly period. 

The proposed new clause 25.5(f) extends this option to disability support workers, but also 
extends the time available for the employer to find suitable work to 3 months.

NDS submits that an extended period is needed to enable suitable work to be found for the 
working of make-up time because of the difficulty of matching appropriate workers to 
individual clients. 

Client choice and control in the operation of the NDIS is also a factor in the need for an 
extended period to organise make up time, because the individual client has enhanced 
negotiating power with providers in relation to the timetabling of supports, as well as the 
identity of the worker as previously mentioned.  The provider cannot unilaterally schedule 
work for their own administrative convenience without reference to the client.’556 (footnotes 
omitted)

[752] AFEI and Ai Group oppose aspects of the ABI proposal. 

[753] AFEI supports the introduction of paragraph 25.5(f)(i) and (ii) of ABI’s proposed 
variation but opposes the removal of the words ‘in such circumstances no payment will be 
made to the employee’, in clause 25.5(f)(i).557

[754] Similarly, Ai Group submits that it supports greater flexibility being afforded in 
respect of client cancellations to the provision of disability services but contends that:

‘Any scheme dealing with client cancellation should retain an ability to cancel an employee’s 
shift without payment where a client cancels or changes their service request.’558

[755] Ai Group contends that ABI’s proposal will ‘exacerbate or further any existing 
disconnect between the 2 in some respects’559 and provides the following example in support 
of this contention:

‘If a client cancels a home care service that is less than 8 hours in duration and $1000 in price 
with 72 hours’ notice and the employer immediately notifies the employee that their 
corresponding shift is cancelled: 

                                               

556 NDS Submission, 2 July 2019 at paras 32 – 37.
557 AFEI Submission, 3 July 2019 at paras 10 – 12.
558 Ai Group Submission, 26 September 2019 at para 45. 
559 Ibid at para 33.






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(a) Under the NDIS, the cancellation is not a “short notice” cancellation. The employer 
therefore cannot recover any amount under the NDIS funding arrangements. 

(b) Under the current Award clause: the employer is not required to pay the employee 
or to afford the employee make-up time. The employee’s shift can be cancelled. 

(c) Under ABI’s proposal: the employer no longer has the ability to cancel the 
employee’s shift without payment to the employee. The employer must either:  

(i) direct the employee to perform other work at the same time and pay the 
employee in accordance with clause 25.5(f)(iii); or  

(ii) cancel the shift and pay the employee the amount they would have received 
had they performed the cancelled service; or 

(iii) provide the employee with make-up time.’560

[756] ABI agrees that the example provided by Ai Group is accurate as to the operation of 
its proposed clause and refers to paragraphs [2.28] - [2.32] of its reply submissions dated 12 
October 2019 in which it addresses the concerns of Ai Group as follows:

‘Our proposed client cancellation clause is intended to deal with circumstances where services 
are cancelled by clients less than 7 days before the rostered shift is due to take place. It seeks 
to provide a fair and workable mechanism to deal with those situations without the employer 
or employee being unfairly disadvantaged. 

We note that Ai Group have identified that our clients’ claim is less flexible for employers 
than the existing clause in respect of client cancellations in the home care stream of the 
Award. Further, and ironically, they identify that our claim is less beneficial for employers 
than the HSU claim in respect of home care services. We accept both of those propositions to 
be correct. However, the primary aim of our clients’ claim is to extend a client cancellation / 
make-up pay regime to the disability services stream, and in doing so, we have proposed to 
materially improve the existing Award regime as it stands for home care employees.

We submit that the proposed variation strikes the right balance and meet awards objective.’

[757] Ai Group submits that in 2 respects the ABI proposal is ‘more onerous, more costly 
and more inflexible’561 than the existing client cancellation scheme:

1. It operates in the event of any client cancellation, even where ample notice of 
the cancellation is provided by the client to the employer and, in turn, by the 
employer to the employee.  Even where an employee has, for instance, four 
weeks of notice of a cancellation, the clause will require the employer to either 
pay them or to afford them make-up time. Ai Group submits:

‘There is … no foundation for proceeding on the basis that the purpose or rationale 
underpinning the requirement to pay an employee in the context of a short notice 
change under the current clause is also relevant in the context of an employee having 
weeks of notice. Rather, the proposition that an employee should be compensated in 

                                               

560 Ibid at para 34.
561 Ibid at para 37.








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the same way for a roster change with multiple weeks of notice as they should for a 
change made after 5pm on the preceding day, self-evidently has little force’.562  

2. The proposed clause will in many instances increase employment costs and the 
regulatory burden. The clause will require an employer, in the context of any 
client cancellation to either pay the employee for the shift or to find other work 
for the employee to perform (either at the same time or later, in the form of 
make-up time).  The proposed clause creates an employer obligation to provide 
make-up time (unless payment is made to the employee). 

[758] Ai Group submits that ABI’s proposal for dealing with client cancellations ‘is not 
consistent with the need to afford flexible modern work practices and will have an adverse 
impact on many employers’ (referring to ss 134(1)(d) and (f)).563

[759] ABI disagrees with Ai Group’s proposition that the proposal will ‘exacerbate or 
further any existing disconnect between the two in some respects’. ABI accepts that its
proposed clause does not operate in perfect harmony with the NDIS funding arrangements. 
ABI also accepts that it operates detrimentally to employers in certain circumstances but 
submits that the proposed variation ‘strikes the right balance for employers and employees.’

[760] ABI submits that the proposed client cancellation clause is intended to deal with 
circumstances where services are cancelled by clients less than 7 days before the rostered shift 
is due to take place. It seeks to provide a fair and workable mechanism to deal with those 
situations without the employer or employee being unfairly disadvantaged.

[761] The Unions oppose ABI’s proposed variation. 

[762] The HSU submits that there is no warrant, financial or otherwise, for extending the 
existing cancellation arrangements to disability workers, noting that the capacity of employers 
to charge for cancelled services under the NDIS has ‘improved dramatically’ because of 
changes to the 2019-2020 Price Guide.564

[763] The UWU also submits that the evidence does not support an extension of the clause 
25.5(f) to disability services; rather the evidence justifies the removal of clause 25.5(f) 
altogether, as there is evidence that client cancellations in home care are often chargeable. 

[764] The ASU submits that there is no probative evidence that identifies any need for a 
client cancellation term in the disability services sector and that the employer witness 
evidence that they will lose clients if they charge for cancellation of a service is speculative 
and should be given little weight:

‘No employer has been able to quantify the cost of client cancellations to their business. Any 
witness evidence about the cost of client cancellation is purely speculative and should be given 
no weight. The employer witness evidence demonstrates that employers in the disability 

                                               

562 Ibid at para 40.
563 Ibid at para 44.
564 HSU Submission, 18 November 2019 at para 152.






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services are better placed to manage the risk of cancellation and absorb the unquantified costs 
of cancellation than their employees.’565

[765] The ASU submits that funding arrangements for the NDIS allow employers to recover 
most of the cost of cancelled shifts and that from the evidence provided by the employers, ‘the 
majority of cancellations occur at very short notice. For all other services, employers may 
charge 90% of the cost of the service unless 5 clear business days’ notice is given. Providers 
may claim an unlimited number of cancellations.’566

[766] The ASU submits that ABI’s proposed variation would ‘further reduce the control that 
employees have over their working hours, and thus make the already intolerable working 
conditions in the sector worse’.567

[767] In reply, ABI rejects the HSU submission that the revised cancellation rules provide ‘a 
generous mechanism for service providers to recoup the cost of service cancellations’ and 
submits that in most cases, the rules do not allow employers to charge clients anything at all 
provided the client gives more than 2 clear business days’ notice of the cancellation of a 
service.

[768] ABI acknowledges that the updated cancellation rules in the NDIS Price Guide 2019-
20 has improved the position of employers when it comes to clients cancelling scheduled 
services provided under the NDIS, but submits that this development does not nullify the 
merit of the claim. 

[769] ABI contends that there is still a material disconnect between the Award requirements 
around changing rosters or cancelling shifts and an employer’s ability to charge clients for 
cancelling scheduled services.

[770] ABI contends that this ‘disconnect’ creates a situation where the employer receives no 
revenue, and yet has an employee who has been rostered to provide the now-cancelled 
service. Unless the employer can usefully deploy the employee to other productive work at 
that exact time slot, they face a potential situation of incurring labour costs without deriving 
any revenue.

[771] In response to the UWU’s submission ABI contends that the position advanced is 
illogical:

‘The United Voice’s conditional support for our proposed clause in respect of home care 
employees undermines their opposition to it applying to disability services employees.

While the United Voice refer to the different regulatory regimes for the different streams of 
work, the reality is that there is no less merit of a client cancellation / make-up time 
arrangement in the disability services stream as it is in the home care stream.’568

                                               

565 ASU Submission, 19 November 2019 at para 117.
566 ASU Submission, 19 November 2019 at para 120.
567 ASU Submission, 19 November 2019 at para 121.
568 ABI Submission, 12 October 2019 at paras 2.18 – 2.19.






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[772] In response to paragraph [35] of the ASU submission, ABI disputes the proposition 
that the new NDIS rules allow providers to charge a 90% cancellation fee ‘in most 
circumstances’. ABI submits that there is a significant window where a provider is not able to 
charge a cancellation fee and yet the employer is unable to vary the employee’s roster or 
cancel the shift. 

[773] ABI also observes that while the ASU makes a general assertion at [29] that clause 
25.5(f) in its current state ‘does not meet the modern awards objective’, they do not proffer 
any changes to it or provide any suggestions for improving the existing regime.  ABI submits 
that the credibility of that position deserves scrutiny.

B The HSU Claim

[774] The HSU’s principal position is that there should be no client cancellation clause in 
the SCHADS Award:

‘the Commission would not be satisfied, on the evidence before it, that cancellation of a home 
care appointment at short notice would leave the employer without a source of funding to meet 
employee wages.  First, wages are modest.  Second, it is far from the case that employers in 
the home care industry are suffering through any financial hardship.  Third, on the evidence 
before the Commission, it would not be satisfied that organisations providing home care 
services are not able to make arrangements whereby they charge when clients cancel scheduled 
services. 

…

In summary, the existing cancellation clause in the Award operates to shift the financial risk 
(which on the evidence above is minimal) of variable client demand onto the employee, and to 
require the employee to forego wages to build up the employer’s goodwill.  The clause is not a 
fair and relevant minimum condition.’569

[775] In the alternative the HSU submits that, the clause should be amended to ensure that 
employees receive payment for all of their rostered hours if they are not given at least 48 
hours’ notice of cancellation.

[776] The HSU propose the following amendments to clause 25.5.(f):

‘(f) Client cancellation

(i) Where a client cancels or changes the rostered home care service, an employee will be 
provided with notice of a change in roster by 5.00 pm the day prior at least 48 hours in 
advance and in such circumstances no payment will be made to the employee. If a full-time or 
part-time employee does not receive such notice, the employee will be entitled to receive 
payment for their minimum specified hours rostered hours for that visit on that day. 

(ii) The employer may direct the employee to make-up time equivalent to the cancelled time, 
in that or the subsequent fortnightly period. This time may be made up working with other 
clients or in other areas of the employer’s business providing the employee has the skill and 
competence to perform the work.’

                                               

569 HSU Submission, 18 November 2019 at paras 138 and 143.






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[777] The HSU contends that the brevity of the notice required in the current clause (by 
5.00 pm the day prior) has the capacity to be disruptive for employees seeking to arrange 
other responsibilities around work commitments.  The HSU refers to the evidence of Ms 
Waddell for whom the capacity for such change meant that she found herself on one occasion, 
with a change which required her to attend an appointment 50 kilometres away, without 
sufficient fuel in her car to undertake the trip.570  

[778] The HSU contends that the capacity to cancel set hours of work on such terms 
significantly undermines the entitlement of part-time workers to regular and guaranteed days 
and hours of work.

[779] ABI opposes the HSU claim and submits that as most cancellations or changes to 
rostered home care services are made in the 24 hours prior to the scheduled service:

‘the HSU variation would effectively nullify the utility of this clause for employers, which is 
more important than ever in the context of the consumer – directed care reforms that have 
recently been implemented.’571

[780] NDS opposes the HSU claim on the basis that ‘it does not provide for any flexibility 
for dealing with client cancellation in the disability sector’.572

[781] AFEI submits that the Commission should prefer the variation proposed by ABI to 
that proposed by the HSU.

[782] Ai Group opposes the deletion of clause 25.5(f) on the basis that if the provision were 
removed from the Award, an employer would effectively be prohibited from making any 
variation to an employee’s roster unless 7 days’ notice is provided.573

[783] As to the HSU’s alternative position, Ai Group does not oppose HSU’s proposal to 
amend clause 25.5(f), on the basis that it broadly reflects the funding arrangements that now 
apply to client cancellations under the NDIS. Ai Group submits the prevailing funding 
arrangements are of clear significance to the determination of the safety net created by the 
Award: 

‘In this instance, the proposed variation would align with the NDIS funding arrangements and 
accordingly, Ai Group does not seek to oppose the proposal.’574

5.7.3 The Evidence

[784] In our view the evidence supports the following findings:

                                               

570 Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019 at paras 15 – 16.
571 ABI Submission, 12 July 2019 at para 12.4.
572 NDS Submission, 16 July 2019 at para 64.
573 See SCHADS Award, clause 25.5(d).
574 Ai Group Submission, 10 February 2020 at para 166.






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1. Client cancellation events occur in both the home care and disability support 
sectors.575

2. Clients cancel scheduled services for a range of reasons including: ill health or 
injury, an unscheduled medical appointment, hospitalisation, transfer into 
permanent residential care, death, family visits, complex behavioural issues, 
social appointments, refusing to have the replacement worker if their usual 
worker is absent that day, absence from home at the time of the scheduled 
service, holidays, poor weather, and festival celebrations.576

3. Most client cancellations occur in the 24 hours prior to the commencement of 
the scheduled service:

(a) Mr Shanahan gave evidence that clients typically give notice of a 
cancellation on the day when a client goes into hospital, permanent 
care, or when they pass away577

(b) Mr Harvey gave evidence that 75% of cancellations occurring at 
ConnectAbility during the financial year ending 30 June 2018 were 
made within 24 hours or not provided at all578

(c) Ms Ryan gave evidence that for the period 1 April 2019 to 30 June 
2019 Community Care Options had clients cancel their services on the 
same day on 205 separate occasions579

(d) Ms Wang gave evidence that:  

(i) in home ageing services, while more notice is typical, 
cancellations for unexpected reasons are usually less than 24 
hours, and  

(ii) in disability services most cancellation notice is overnight and 
less than 24 hours,580 and

                                               

575 Mr Shanahan gave evidence that Coffs Coast Health & Community Care Pty Ltd experience client cancellations on a 

‘regular basis’ (Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 20); Mr Harvey gave 

evidence that ConnectAbility experiences client cancellation events on a ‘daily basis’ (Exhibit ABI7 – Witness Statement 

of Scott Harvey, 2 July 2019 at para 32); Ms Ryan gave evidence that Community Care Options experiences client 

cancellations on ‘at least a daily basis’ (Exhibit ABI6 – Witness Statement of Deborah Ryan, 12 July 2019 at para 46); 

Ms Wang gave evidence that CASS Care Limited experiences client cancellations on a ‘regular basis’ (Exhibit ABI9 –
Witness Statement of Joyce Wang, 12 July 2019 at para 35); Mr Wright gave evidence that HammondCare experiences 

client cancellations on a ‘frequent basis’ (Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at para 25).
576 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 22; Exhibit ABI7 – Witness Statement of 

Scott Harvey, 2 July 2019 at para 37; Exhibit ABI6 – Witness Statement of Deborah Ryan, 12 July 2019 at para 48; 

Exhibit ABI9 – Witness Statement of Joyce Wang, 12 July 2019 at para 37; Exhibit ABI3 – Witness Statement of Jeffrey 

Wright, 12 July 2019 at para 27; Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 at para 42.
577 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 24.
578 Exhibit ABI7 – Witness Statement of Scott Harvey, 2 July 2019 at para 36.
579 Exhibit ABI6 – Witness Statement of Deborah Ryan, 12 July 2019 at para 47.
580 Exhibit ABI9 – Witness Statement of Joyce Wang, 12 July 2019 at paras 39 - 40.








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(e) Mr Wright gave evidence that for HammondCare ‘the vast majority of 
client cancellations are within 0 to 6 hours of the scheduled 
commencement time of the service’.581

4. Client cancellation events are not uncommon, the evidence was:

(a) Ms Wang gave evidence that ‘approximately 40 visits are cancelled per 
week’ at CASS and, in the month of May 2019, 3.83% of visits were 
cancelled (180 of 4,700 total scheduled visits),582

(b) Mr Wright gave evidence that during May 2019 there were 2,708 
cancellations out of 47,704 scheduled services which equates to 5.68% 
of services cancelled for the month,583

(c) Ms Mason gave evidence that BaptistCare experiences ‘a high 
proportion of client cancellations on a very regular basis’ and that in the 
month of May 2019 5,140 of 35,083 services were cancelled, which 
equates to 14.65% of scheduled services,584 and 

(d) Mr Harvey gave evidence that ConnectAbility experienced 1,134 
cancellations during the financial year ending 30 June 2018.

5. The frequency of cancellation events causes significant rostering challenges for 
businesses.  While employers endeavour to redeploy employees to other 
productive work where cancellation events occur, it is not always possible to 
do so for a range of reasons.585

6. Employers encounter difficulties in finding alternative work for employees at 
the time of their rostered shift when a scheduled client service is cancelled by 
the client.586

7. There is some evidence that employers cancel rostered shifts of part-time 
employees (without payment) under the provisions of the current clause 
25.5(f).587

                                               

581 Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at para 29.
582 Exhibit ABI9 – Witness Statement of Joyce Wang, 12 July 2019 at para 35.
583 Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at paras 25 – 26.
584 Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 at paras 40 – 41.
585 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 23; Exhibit ABI7 – Witness Statement of 

Scott Harvey, 2 July 2019 at paras 39 - 43; Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at para 38.
586 Exhibit ABI7 – Witness Statement of Scott Harvey, 2 July 2019 at paras 39 - 42; Exhibit ABI6 – Witness Statement of 

Deborah Ryan, 12 July 2019 at para 50.
587 Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 10; Exhibit UV4 – Witness Statement of 

Deon Fleming, 16 January 2019 at paras 13 - 16. However, as Ai Group submits, the evidence does not substantiate the 

proposition that it is common for employer generally to cancel rostered shifts of part-time employees, without payment, 

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8. Where an employee has a rostered shift cancelled without payment by their 
employer, the employee will lose out on expected income unless provided with 
a make up shift.588

9. Funding schemes have different terms in respect of cancellations589 and in 
some cases employers are prohibited from charging cancellation fees.

10. The updated cancellation rules in the NDIS Price Guide 2019-20 improved the 
position of employers when it comes to clients cancelling scheduled services 
under the NDIS.

11. Depending on the timing of a cancelled service, a service provider may be able 
to both recover money from the client, and cancel the shift of the employee 
without payment of wages;590 though the evidence suggests that employers do 
not generally engage in such practices.591  

12. Home care providers can set out the terms and conditions upon which they will 
provide services to a client, including terms about cancellation of services.592

13. Home care providers can charge a client for a cancelled service provided this is 
in accordance with the service agreement in place between the provider and the 
client,593 however the evidence suggests that employers do not always enforce 
this contractual right for a range of reasons.594

                                               

588 Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 10; Exhibit UV4 – Witness Statement of 

Deon Fleming, 16 January 2019 at paras 13 - 16; Transcript, 15 October 2019, cross-examination of Belinda Sinclair at 

PN745.
589 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 21. 
590 Transcript, 18 October 2019, cross-examination of Deborah Ryan at PN3031-PN3032; Exhibit HSU15 - Same Day 

Cancellation Log (subject to confidentiality order); also, this is the logical conclusion from considering the interaction of 
cancellations clauses within service agreements (see Exhibit HSU19 - Baptist Care Commonwealth Home Support 

Programme (CHSP) pro-forma Service Agreement; Exhibit HSU20 - Baptist Care Home Care Agreement (Level 1) with 

the terms of clause 25.5(f) of the Award. 
591 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 27; Transcript, 17 October 2019, cross-

examination of Jeffrey Wright at PN2651; Transcript, 18 October 2019 cross-examination of Wendy Mason at PN3321.
592 Transcript, 17 October 2019, cross-examination of Darren Mathewson at PN2421-PN2424; Transcript, 18 October 2019, 

cross-examination of Deborah Ryan at PN3020-PN3029, PN3075-PN3080; Exhibit HSU16 - Community Care Options 

Home Care Agreement Template; Transcript, 18 October 2019, cross-examination of Wendy Mason at PN3237-PN3249; 

Exhibit HSU19 - Baptist Care Commonwealth Home Support Programme (CHSP) pro-forma Service Agreement; Exhibit 

HSU20 - Baptist Care Home Care Agreement.
593 Transcript, 18 October 2019, cross-examination of Graham Shanahan at PN2891-2897; cross-examination of Deborah 

Ryan at PN3020-PN3029, PN3075-PN3080; Exhibit HSU15 - Same Day Cancellation Log (subject to confidentiality 

order); Exhibit HSU16 - Community Care Options Home Care Agreement Template; Transcript, 18 October 2019, cross-

examination of Wendy Mason at PN3237-PN3249; Exhibit HSU19 - Baptist Care Commonwealth Home Support 

Programme (CHSP) pro-forma Service Agreement; Exhibit HSU20 - Baptist Care Home Care Agreement. Note: Mr 

Wright provided evidence that cancellation fees cannot be charged under the CHSP however later admitted that this 

understanding was based on what he had heard from ‘operations people who are in that space within the organisation’ 

(see Transcript, 17 October 2019, cross-examination of Jeffrey Wright at PN2645-PN2651, PN2702-PN2706). His 
evidence on this issue should not be preferred, as it is hearsay evidence that directly contradicts other evidence in this 

matter including that of Mr Shanahan (PN2894), Ms Mason (PN3239) and the terms of the Baptist Care Commonwealth 

Home Support Programme (CHSP) pro-forma Service Agreement. Similarly, Ms Wang provided evidence that if a client 

cancelled the service, CASS would not be able to recover income as the clients held the funding, but this evidence is also 






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14. Home care providers may choose not to charge a client for a cancellation for 
reasons that may include demonstrating sensitivity to the client and 
retaining/gaining client business.595

[785] In relation to finding 10 above NDS notes that the NDIS Price Guide for 2019-2020 
modified the funding arrangements in the event of client cancellation as follows:

‘Specifically, providers can claim 90% of the charge for the cancelled appointment where the 
client provides up to 2 days’ notice, and there is no cap on the number of times this can be 
done.  The Guide states:

Where a provider has a short notice cancellation (or no show) they are able to recover 
90% of the fee associated with the activity, subject to the terms of the service 
agreement with the participant.

A cancellation is a short notice cancellation (or no show) if the participant has given

 less than 2 clear business days’ notice for a support that is less than 8 hours 
continuous duration and worth less than $1000; and

 less than 5 clear business days’ notice for any other support.

There is no limit on the number of short notice cancellations (or no shows) that a 
provider can claim in respect of a participant.

However, providers have a duty of care to their participants and if a participant has an 
unusual number of cancellations then the provider should seek to understand why they 
are occurring.

The NDIA will monitor claims for cancellations and may contact providers who have 
a participant with an unusual number of cancellations.

The changes for 2019-2020 mean that the financial impact on the employer of a cancellation 
made with 2 days’ notice is slightly reduced compared to previous years, because the previous 
cap of payment for a maximum of 8 occasions per year has been removed.’596 (footnotes 
omitted)

[786] Other parties acknowledged that the NDS’ characterisation of the modified funding 
arrangements is broadly accurate.

[787] ABI agrees with NDS’s characterisation subject to its comments in response to 
Question 49 in Background Paper 1. After setting out the UWU submission that ‘in disability 

                                                                                                                                                  

hearsay, and should not be preferred as she admitted funding arrangements were not her responsibility, and her evidence 

was based on “what I have heard from” work colleagues (PN3611-PN3616). 
594 Exhibit ABI5 – Witness Statement of Graham Shanahan, 28 June 2019 at para 27; Transcript, 17 October 2019, cross-

examination of Jeffrey Wright at PN2651; Transcript, 18 October 2019, cross-examination of Wendy Mason at PN3321.
595 Transcript, 18 October 2019, cross-examination of Graham Shanahan at PN2891-PN2897; cross-examination of Wendy 

Mason at PN3273-PN3274.
596 NDS Submission, 2 July 2019 at paras 30 – 31.






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services, due to changes made in July 2019 in the NDIS Price Guide 2019-20, an unlimited 
amount of client cancellations are now claimable’, question 49 states:

‘Question for other parties: Do you agree with the above statement (and, if not, why not)?’

[788] In response to Question 49 ABI submits:

‘No. 

It is not correct that the NDIS Price Guide 2019-20 allows employers to claim “an unlimited 
amount of client cancellations”, for three reasons. 

Firstly, under the current NDIS Price Guide 2019-20 valid from 1 December 2019, employers 
are only able to claim for cancellations where they are “short notice cancellations”. Employers 
cannot charge for cancellations that do not meet that definition. The Price Guide defines a 
“short notice cancellation” as being where the participant:

(a) does not show up for a scheduled support within a reasonable time, or is not 
present at the agreed place and within a reasonable time when the provider is 
travelling to deliver the support (i.e. a “no show”); or 

(b) for supports that are less than 8 hours continuous duration and the agreed total 
price for the support is less than $1000, has given less than two (2) clear 
business days’ notice; or 

(c) has given less than five (5) clear business days’ notice for any other support.

Secondly, providers are only permitted to claim 90% of the fee associated with the activity for 
short notice cancellations.

Thirdly, providers are only permitted to charge for a short notice cancellation (or no show) if 
they have “not found alternative billable work for the relevant worker and are required to pay 
the worker for the time that would have been spent providing the support”.’597 (footnotes 
omitted)

[789] Ai Group notes that to the extent that NDS asserts that funding can be claimed in the 
event of all cancellations made with less than 2 business days’ notice, it is not correct. 
Funding can be claimed in the event of a ‘short notice cancellation (or no show)’. A ‘short 
notice cancellation’ occurs where the participant:

(a) does not show up for a scheduled support within a reasonable time, or is not 
present at the agreed place and within a reasonable time when the provider is 
travelling to deliver the support, or 

(b) has given less than two (2) clear business days’ notice for a support that meets 
both of the following conditions: 

 the support is less than 8 hours continuous duration, AND 

                                               

597 ABI Submission, 10 February 2020 at para 49.






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 the agreed total price for the support is less than $1000, or 

(c) has given less than five (5) clear business days’ notice for any other support.598

[790] The Joint Union accept that the statement is accurate but doubt the submission that the 
financial impact of client cancellations is ‘slightly reduced’. 

5.7.4 Consideration

[791] It is convenient to deal first with the HSU’s claim that there should be no client 
cancellation clause in the SCHADS Award.

[792] We reject the HSU’s claim. If granted an employer would be prohibited from making 
any variation to an employee’s roster unless 7 days’ notice is provided (see clause 25.5(d)(i)); 
save in the case where another employee is absent from duty due to illness or in an emergency 
(see clause 25.5(d)(ii)). 

[793] As mentioned earlier, the modern awards objective provides that the Commission must 
ensure that modern awards, together with the NES, provides a ‘fair…safety net’.  Fairness in 
this context is to be assessed from the perspective of the employees and employers covered by 
the SCHADS Award.

[794] The deletion of the client cancellation clause would be manifestly unfair to employers 
covered by the SCHADS Award given:

 the incidence of client cancellations

 the fact that most client cancellations occur in the 48 hours prior to the scheduled 
services, and

 such circumstances create significant rostering challenges for businesses. 

[795] We now turn to ABI’s proposed variation to clause 25.5(f). The effect of ABI’s 
proposed variation is set out earlier (at [747]). In short, the proposed variation does 3 things:

(i) it extends the operation of the clause to disability support work

(ii) it removes the option of withholding payment from a worker in the event of a 
cancellation, and

(iii) it provides more flexibility around the timetabling of make-up time.

[796] It is convenient to deal separately with each of these elements. 

[797] As mentioned earlier, the current client cancellation term only applies to ‘home care 
services’, which is an undefined term. ABI’s proposed term would apply to home care and
disability services, so much is clear from proposed clause 25.5.(f)(i). 

                                               

598 NDIS Price Guide 2019-20, 1 December 2019, p 18.








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[798] ABI initially contended that the current client cancellation clause already applies to a 
significant part of the disability services sector, as it applies to services provided to people 
with a disability in their home. It initially submitted that there is no reason for distinguishing 
between supports provided to persons with a disability in their home and services provided in 
the community:

‘Other than the location, there are clear similarities between care services provided by support 
workers in the home and care services provided in the community, including that:  

(i) community-based services are just as susceptible to client cancellation as in-home 
care services; 

(ii) community-based services are subject to the same cancellation rules under the NDIS 
as attendant care in the home; and 

(iii) the nature of the work is the same or very similar.’599

[799] ABI later revised its submission and now accepts that:

‘it most likely erroneously construed the scope of the existing client cancellation clause. We do 
not press those parts of our submission of 2 July 2019 which asserted otherwise.

Notwithstanding that issue, however, we maintain that it is necessary to extend the existing 
client cancellation clause in the Award beyond the home care sector and to the disability 
services sector. It is necessary to address this disconnect between the NDIS rules and the 
Award.’600

[800] ABI contends that there is no good reason why the SCHADS Award should provide a 
regime for dealing with client cancellations of rostered ‘home care’ services, but not provide 
any such regime for client cancellations of attendant care services in the community for 
people with a disability.

[801] ABI submits that where a disability services client cancels a scheduled service with 
less than 7 days’ notice, the Award does not permit an employer to unilaterally change the 
employee’s roster to accommodate the fact that their work is no longer required or available 
by reason of the client cancellation. Under NDIS rules, where the client cancels a shift more 
than 2 clear days before, but less than 7 days before the service is scheduled to be delivered 
the employer is prohibited from charging the client in most cases.

[802] ABI submits that in those circumstances, the only ways the employer can avoid 
incurring a loss for the cancelled service are:601

 where they can redeploy the employee to other work at that precise time, which will 
be difficult in most cases given that other employees would most likely have 
already been rostered to perform that work, or

                                               

599 ABI Submission, 2 July 2019 at para 5.3.
600 ABI Submission, 12 October 2019 at paras 2.24 – 2.25.
601 ABI Submission, 12 October 2019 at para 2.9.






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 where clauses 25.5(d)(ii) or (iii) apply, which will be rare, or

 where the employee agrees to vary their hours (e.g. under clause 10.3(e)). 

[803] We agree with ABI. Client cancellations occur in both the home care and disability 
support sectors. Client cancellation events occur in both sectors, and are not uncommon. The 
frequency of cancellation events causes significant rostering challenges for businesses. It is 
appropriate that the client cancellation term apply to both sectors. 

[804] We now turn to the second element of ABI’s proposal.

[805] At present clause 25.5(f) operates such that if a client cancels or changes a rostered 
home care service and the employee is notified of a consequent change to their roster by 5pm 
on the day prior that they are no longer required to work, then the employee is not entitled to 
any payment.

[806] In short, the current clause permits an employer to withhold payment of rostered work 
for an employee where the client cancels or changes the rostered shift and the employee is 
provided with notice or a change in roster occurs, by 5pm the day prior. As an alternative to 
withholding payment, the employer may direct the employee to perform make-up time 
equivalent to the cancelled time, in the current roster or the subsequent fortnightly period. 

[807] ABI proposed that in circumstances where an employer cancels a rostered shift (under 
proposed clause 25.5(f)(ii)(B)) the employer must either: 

 pay the employee the amount they would have received had they performed the 
cancelled service, or  

 provide the employee with make-up time. Such make up time must be rostered to be 
performed within 3 months of the date of the cancelled shift. The employer must 
consult with the employee about when the make-up time will be performed.

[808] In essence ABI seeks to amend the client cancellation clause to delete the provision 
enabling an employer to withhold payment, but enables make up time to be worked within 3 
months rather than within the next fortnightly period. Unlike the current clause, the proposed 
variation does not require that the employee is notified by any particular time. 

[809] As mentioned earlier, NDS supports ABI’s proposal. NDS submits that the current 
provision whereby an employee may not be paid in certain circumstances where there is a 
cancellation is ‘onerous on the employee’ and the ABI proposal remedies that aspect of the 
current award provision.602

[810] AFEI supports paragraphs 25.5(f)(i) and (ii) of ABI’s proposal but opposes the 
removal of an employer’s ability to cancel an employee’s shift without payment to the 
employee. Ai Group takes a similar position and submits that in some respects the ABI 

                                               

602 NDS Submission, 7 February 2020, p 13.






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proposal is ‘more onerous, more costly and more inflexible’ than the existing term (see [757]
above). 

[811] In response to Ai Group’s submission that ABI’s proposal is less flexible for 
employers than the existing clause in respect of client cancellations in the home care stream of 
the Award and less beneficial for employers than the HSU claim in respect of home care 
services, ABI accepts that both of those propositions are correct and submits:

‘However, the primary aim of our clients’ claim is to extend a client cancellation / make-up pay
regime to the disability services stream, and in doing so, we have proposed to materially 
improve the existing Award regime as it stands for home care employees.

We submit that the proposed variation strikes the right balance and meets the modern awards 
objective.’603

[812] The Unions generally oppose ABI’s proposal, however the UWU notes that the 
proposal has a ‘beneficial effect’ in that:

‘it would provide employees with a more stable and secure income as the employer would either 
have to pay the employee for the shift or may ‘deploy’ the employee to another shift rather 
than withhold payment altogether. In this respect, this clause is an improvement on the current 
client cancellation clause.’604

[813] The UWU supports ABI’s proposed variation (in respect of home care workers; the 
UWU opposes the extension of the client cancellation term to disability support workers), 
provided that:605

1. There is a set time by which the employee must be notified of the cancelled 
shift. If the employee is notified by that timeframe, then the employer could 
require the employee to work make up time. If the employee is not notified by 
that timeframe, then the employee should be paid for the shift as rostered (and 
cannot be required to work make up time). The current standard of 5pm the
day prior should be the starting point.

2. There is greater clarity around when the ‘make-up time’ must be paid. Where 
an employee is required to work make-up time, they should be paid as if the 
shift was not cancelled. The UWU would support a form of words as follows: 

(vii) Where 25.5(f)(iv)(B) applies the employee will receive payment 
for the cancelled service as if they had worked it (including any 
applicable penalties or loadings). 

(viii) Where the applicable rate of pay for working the make-up time is 
higher than the rate of pay the employee received for the cancelled 
service under 25.5(f)(vii) the employee will be paid the difference 
between the 2 rates of pay. 

                                               

603 ABI Submission, 12 October 2019 at paras 2.31 – 2.32
604 UWU Submission, 13 September 2020 at para 37.
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3. The time within which make-up may be worked should not be three months. 
Three months is an excessive length of time. The three month time frame will 
allow larger balances of make-up time to accrue and also greater deficits in 
remuneration for work performed when make-up time is worked. The current 
Award clause requires that make-up time must be worked in ‘that, or the 
subsequent fortnightly period’. We propose that the time in which make up can 
be worked is extended to only the next 2 fortnightly periods i.e. a month. This 
extension should enable employers to find an appropriate make-up shift for the 
employee, whilst not being so long as to lose the nexus between the paid shift 
and the make-up time shift.

4. Under the current award provision concerning make-up time, it is likely that if 
the employer does not direct the employee to work any balance within the 
fortnight, the right of the employer to direct the employee to perform work as 
make up time lapses. A clear provision that this is in fact the case, is necessary 
and particularly if the Commission is considering longer durations for the 
accumulation of make-up time. 

[814] We acknowledge the force of points 1 and 3; but finds point 2 and 4 unpersuasive. We 
return to points 1 and 3 shortly.

[815] Broadly speaking, we think the second element of ABI’s proposed clause has merit. 
Contrary to the submissions of AFEI and Ai Group we favour removing the option of 
withholding payment from an employee in the event of a client cancellation. 

[816] The only reservation we have concerns the timeframe within which an employee is 
notified that their rostered shift has been cancelled. 

[817] Clause 25.5(f)(v) of the ABI proposal provides that an employee must be paid for the 
cancelled shift ‘where the employee was notified of the cancelled shift after arriving at the 
relevant place of work’. In the event that the ‘cancelled shift’ was the employee’s first 
engagement of the day, the ABI proposal means that the employee will have incurred the 
inconvenience of having to attend the relevant place of work, and will receive no recompense. 

[818] Under the current clause if an employee is not notified of the cancelled shift by 5pm 
on the day prior they are entitled to receive payment for their minimum specified hours on 
that day. A ‘cut off’ of 5pm on the day prior gives rise to some variability in terms of the 
actual period of notice provided. If the cancelled shift was to have started at 6am then the 
minimum notice required is 13 hours; whereas if the cancelled shift starts at 5pm the next day 
then 24 hours notice is required. Client cancellations can and do occur with less than 24 
hours’ notice. Our provisional view is that 12 hours notice is appropriate. This would mean 
that clause 25.5.(f)(v) in the ABI proposal be amended as follows: 

(v) The make up time arrangement cannotcan only be utilised used where the employee 
was notified of the cancelled shift at least after arriving at the relevant place of work to 
perform 12 hours prior to the scheduled commencement of the shift. In these cases, clause 
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[819] The use of the word ‘shift’ in this context may require further consideration. A shift 
suggests all of the work performed on a particular day, which may consist of a number of 
client engagements. 

[820] The third element of ABI’s claim concerns the provision of more flexibility around the 
timetabling of make up time.

[821] At present clause 25.5(f)(ii) provides that the employer ‘may direct the employee to 
make up time equivalent to the cancelled time in that or the subsequent fortnightly period’. 

[822] Clause 25.5(f)(vii) of the ABI proposal provides: 

(vii) Where the employer elects to provide make up time:

A. the make up time must be rostered in accordance with clause 25.5(a);

B. the make up time must be rostered to be performed within 3 months of the 
date of the cancelled shift;

C. the employer must consult with the employee in accordance with clause 8A 
regarding when the make up time is to be worked prior to rostering the make 
up time; and

D. the make up shift can include work with other clients or in other areas of the 
employer’s business provided the employee has the skill and competence to 
perform the work.

[823] We agree with subclauses A, C and D. In relation to subclause B we think a period of 
3 months is too long in circumstances where the employee has ‘lost’ expected income due to a 
shift cancellation. In our view a period of 6 weeks strikes an appropriate balance between the 
various considerations. 

[824] There is one final matter.

[825] At paragraph [34] of the ASU reply submission, the ASU states that ABI’s proposed 
clause would permit an employer to ‘double-dip’ where the employer can charge a participant 
for a cancelled service:

‘The proposed variations would… also permit an employer to ‘double dip’, because it would 
permit the employer to bill the NDIA for a cancelled service, but also require the employee to 
work make up time, for which the employer could claim further fees.’606

[826] ABI submits that this was not the intention of the proposal.  The proposed clause is 
intended to cover the circumstances where an employer cannot charge a participant but would 
still be liable to pay the employee in respect of the cancelled shift. 

‘Our clients are not opposed to a variation to our proposal to explicitly state that the employer 
may only require an employee to work make-up time where the employer is permitted to 
charge the client a cancellation fee.’607

                                               

606 ASU Submission, 16 September 2019 at para 34.






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[827] This issue can be addressed in the process of finalising the variation determination 
arising from our decision. 

[828] We now turn to the HSU’s proposal variation. 

[829] We are not persuaded that the variation proposed provides a ‘fair and relevant 
minimum safety net’. The variation retains the option of withholding payment from an 
employee in the event of a client cancellation. Further, as we have mentioned it is appropriate 
that the client cancellation term applies to both the home care and disability support sectors. 
In our view the merits favour a variation of the type proposed by ABI.

[830] In our view the merits favour the variation of the SCHADS Award in the manner 
proposed by ABI subject to 2 amendments:

 our provisional view that proposed clause 25.5(f)(v) be amended (see [818]above),
and

 amending clause 25.5(f)(vii)(B) to delete ‘3 months’ and insert ‘6 weeks’.

[831] We also note that ABI is to give further consideration to the ‘double dipping’ point 
(see [825] – [827] above). 

[832] We now turn to deal with the s.134 considerations. 

[833] Section 134(1)(a) of the Act requires that we consider ‘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). A 
proportion of employees covered by the SCHADS Award may be regarded as ‘low paid’ 
within the meaning of s.134(1)(a) of the Act. 

[834] The ‘needs of the low paid’ is a consideration which weighs in favour of the variation 
we propose to make. The variation effectively removes the option of withholding payment 
from an employee in the event of a client cancellation. We accept that the extension of the 
term to disability support workers may disadvantage some of those employees. But, having 
regard to the terms of the proposed variation we are satisfied that it provides a ‘fair and 
relevant minimum safety net’. 

[835] Section 134(1)(b) of the Act requires that we consider ‘the need to encourage 
collective bargaining’. We are not persuaded that the proposed variation to clause 25.5 would 
‘encourage collective bargaining’, it follows that this consideration does not provide any 
support for such a change. 

[836] Section 134(1)(c) of the Act requires that we consider ‘the need to promote social 
inclusion through increased workforce participation’. Obtaining employment is the focus of 
s.134(1)(c). 

                                                                                                                                                  

607 ABI Submission, 12 October 2019 at para 2.22.






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[837] The impact of the proposed variation on total employment is unlikely to be significant. 
We regard this consideration as neutral. 

[838] It is convenient to deal with the considerations in ss.134(1)(d) and (f) together. 

[839] The extension of the client cancellation term to the disability support sector and the 
additional flexibility provided in relation to the rostering of make up time will benefit 
business. We accept that some elements of the proposed variation provide less flexibility for 
employers (a point conceded by ABI, see [756]above).

[840] On balance the considerations in s.134(1)(d) and (f) weigh in favour of the variation 
we propose.

[841] The considerations in s.134(1)(da)(e), (g) and (h) of the Act are not relevant in the 
present context. 

[842] 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 presently relevant and have decided to vary the 
SCHADS Award as proposed at [818] above. 

6. CLOTHING AND EQUIPMENT CLAIMS

6.1 BACKGROUND

[843] Clause 20.2 of the SCHADS Award currently provides:

20.2 Clothing and equipment 

(a) Employees required by the employer to wear uniforms will be supplied with an 
adequate number of uniforms appropriate to the occupation free of cost to employees. 
Such items are to remain the property of the employer and be laundered and 
maintained by the employer free of cost to the employee.

(b) Instead of the provision of such uniforms, the employer may, by agreement with the 
employee, pay such employee a uniform allowance at the rate of $1.23 per shift or 
part thereof on duty or $6.24 per week, whichever is the lesser amount. Where such 
employee’s uniforms are not laundered by or at the expense of the employer, the 
employee will be paid a laundry allowance of $0.32 per shift or part thereof on duty or 
$1.49 per week, whichever is the lesser amount.

(c) The uniform allowance, but not the laundry allowance, will be paid during all 
absences on paid leave, except absences on long service leave and absence on 
personal/carer's leave beyond 21 days. Where, prior to the taking of leave, an 
employee was paid a uniform allowance other than at the weekly rate, the rate to be 
paid during absence on leave will be the average of the allowance paid during the four 
weeks immediately preceding the taking of leave.

(d) Where an employer requires an employee to wear rubber gloves, special clothing or 
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employer must reimburse the employee for the cost of purchasing such special 
clothing or safety equipment, except where such clothing or equipment is provided by 
the employer.’

[844] There are 2 claims before us which seek to vary clause 20.2.

[845] The HSU seeks to introduce a new ‘damaged clothing allowance’ requiring employers 
to compensate employees for damage or soiling of any clothing or other personal effects 
(excluding hosiery) in the course of employment.

[846] The UWU proposes a variation whereby employers would be required to provide 
employees with enough uniforms to allow them to launder their work uniforms no more than 
once per week. 

[847] The submissions and witness evidence relevant to the clothing and equipment claims 
are set out at Attachment J. 

6.2 THE HSU CLAIM

[848] The HSU seeks to insert a new provision at clause 20.3 (and renumber current clauses 
20.3 – 20.9) as follows:608

‘20.3 Damaged clothing allowance

(i) Where an employee, in the course of their employment suffers any damage to or 
soiling of clothing or other personal effects (excluding hosiery), upon provision of 
proof of the damage, employees shall be compensated at the reasonable replacement 
value of the damaged or soiled item of clothing.

(ii) This clause will not apply where the damage or soiling is caused by the negligence of 
the employee.’

[849] Under the proposed clause employers must compensate employees to the amount of 
the ‘reasonable replacement value’, for ‘any damage to, or soiling of, clothing or other 
personal effects (excluding hosiery)’ which occurs during the employee’s employment, save 
where the damage or soiling is caused by the employee’s negligence. 

A Submissions

[850] The grounds advanced by the HSU in support of its claim are:

 an assertion that many employees, particularly support workers in home care and 
disability services, wear their own clothes to work and are not provided with a 
uniform609

 a submission that employees’ clothes are at risk of being soiled or damaged in the 
course of their duties,610  and

                                               

608 HSU Amended Draft Determination, 15 February 2019.
609 HSU Submission, 15 February 2019 at para 61.






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 an assertion that employees’ clothes ‘will frequently become damaged, soiled or 
worn’ given the nature of the work they do.611

[851] The HSU submits that employees are obliged by their roles to take their clients as they 
find them, and to provide care and assistance to them because they are incapable of carrying 
out those tasks themselves.  

[852] The various employer interests oppose the HSU’s claim.

[853] ABI points to a number of drafting and practical issues with the proposed clause, in 
particular a lack of precision around how the replacement value of clothing is to be calculated 
and the phrase ‘suffers any damage’:

‘It is not clear how an employer should determine what the “reasonable replacement value” is, 
and whether the employer would be required to replace a second hand piece of clothing with a 
new piece of clothing.’612

[854] ABI initially submitted that if an employer does not provide the employee with a 
uniform, then clause 20.2 entitled the employee to receive a uniform allowance. It was 
contended that this uniform allowance could be used to purchase clothes to wear to work, and, 
if those clothes become damaged in the course of their employment, to replace them. 
However, in its reply submission of 26 February 2020 ABI withdrew the submission that the 
uniform allowance is payable in circumstances where the employers do not provide 
uniforms.613 We agree with ABI’s concession. It seems clear that, as the Unions contend,614

clause 20.2(b) only provides that the uniform allowance applies to employees required to 
wear uniforms.

[855] Ai Group submits that there is no probative evidence or material sufficient to satisfy 
the Commission that the proposed clause is necessary to ensure that the SCHADS Award 
achieves the modern awards objective. Further, Ai Group contends that the HSU’s claim is 
unfair to employers in various ways:615

 the proposed clause would appear to apply even where an employee elects not to 
use equipment, clothing or protective effects provided by an employer for the very 
purpose of ensuring that an employee’s clothing and personal effects are protected 
from damage and/or soiling

 the proposed clause requires reimbursement ‘at the reasonable replacement value’
entitling an employee to replace the value of clothing or personal effects that they 
have elected to wear during the course of their employment, irrespective of their 

                                                                                                                                                  

610 Ibid.
611 Ibid at para 62.
612 ABI Submission, 12 July 2019 at para 10.8.
613 ABI Submission, 26 February 2020 at para 90.
614 Joint Union Submission, 10 February 2020 at para 27.
615 Ai Group submission, 26 February 2020 at para 149.






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value and even though they may not be essential for the purposes of enabling the 
employee to undertake their work (e.g. designer brand glasses)

 the scope of the clause is broad; it applies wherever there is any damage or soiling, 
even if the extent of the damage or soiling does not necessitate or warrant the 
replacement of the clothing or other item (for example, because it can be cleaned or 
repaired), and

 the proposed clause does not require an employee to provide proof of the 
‘reasonable replacement value’ or absolve an employer from their liability to 
reimburse an employee where such proof is not provided. 

[856] AFEI opposes the claim and submits that the proposed variation would result in 
‘uncertainty and inappropriate additional cost to employers and that the issue is more 
appropriately addressed at the enterprise level through bargaining’.616

[857] AFEI makes the following points in opposing the claim:617

 in some circumstances an employee could receive compensation where no loss has 
arisen

 the proposal does not require that the employee actually purchases the clothing 
which has been damaged or soiled, or even that the employee owned the clothing. 
Hence, the employee could seek payment to cover a cost they have not incurred

 the proposal allows an employee to claim an uncapped amount of compensation for 
the replacement of clothing or personal affects

 the proposal does not require the employee to provide evidence that the damage 
occurred during the course of employment and did not involve negligence by the 
employee

[858] NDS opposed the claim but did not advance any submissions in support of its position; 
though it does comment on the evidentiary findings sought by the HSU.

[859] Business SA acknowledged that:618

 not all workplaces provide uniforms, or the uniform provided will be a company 
shirt and not pants and there is a requirement for employees to wear some of their 
own clothing, and 

 employees covered by the SCHADS Award may undertake work that results in the 
soiling or damage of clothing, such as using harsh cleaning chemicals or from bodily 
fluids.

                                               

616 AFEI Submission, 23 July 2019 at para 154.
617 AFEI Submission, 23 July 2019 at paras 149 – 152.
618 Business SA Submission, 15 July 2019 at paras 6 – 7.






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[860] Business SA submits that:

‘It is not unusual for employees to wear their own clothes to work and general wear and tear of 
such clothing should not be the liability of the employer. Employees are expected to take all 
reasonable care necessary to protect their clothing.’619

[861] As to the wording of any proposed clause Business SA submits that the standard 
wording for award terms dealing with the reimbursement of clothing is that used in the 
Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing 
Award). We return to this issue later. 

B Evidence

[862] The HSU contends that the reality of work in the industry, particularly for home carers 
and disability support workers, is that employees wear their own clothes to work and are at 
risk of their clothing being soiled or damaged in the course of their duties.620 Relying on the 
evidence of Ms Waddell,621 Ms Wilcock,622 and Mr Sheehy623 the HSU contends that care 
work is likely to damage employees’ clothing and seeks a finding to that effect.

[863] Mr Sheehy is the Manager, Aged Care and Disabilities with the HSU NSW Branch
and in that role deals with HSU members and employers in the home care sector covered by 
the SCHADS Award. Mr Sheehy gave evidence that:

 some employers in the industry do not provide any, or sufficient, uniforms to their 
employees working in home care624

 the nature of the work done by home carers means that clothes become damaged, 
dirty or worn quickly,625 and

 workers in the industry are performing all types of personal care – getting people 
dressed, showering, preparing food, feeding clients and dealing with bodily 
fluids.626

[864] Ms Waddell is employed as a Community Care worker for HammondCare; her role 
involves assisting clients with all their daily activities of living, including socialisation, 
personal care and home maintenance. This includes showering, dressing, administering 
medication from Webster packs, house cleaning, cooking, shopping, caring for their pets, 
leisure activities and community engagement. At [33] – [34] of her statement Ms Waddell 
says:

                                               

619 Business SA Submission, 15 July 2019 at para 9.
620 Exhibit HSU27 – Witness Statement of Pamela Wilcock, 15 February 2019 at para 11; Exhibit HSU4 – Witness 

Statement of Heather Waddell, 15 February 2019 at para 36.  
621 Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019.
622 Exhibit HSU27 – Witness Statement of Pamela Wilcock, 15 February 2019.
623 Exhibit HSU26 - Witness Statement of Robert Sheehy, 15 February 2019.
624 Exhibit HSU26 - Witness Statement of Robert Sheehy, 15 February 2019 at para 14.
625 Exhibit HSU26 - Witness Statement of Robert Sheehy, 15 February 2019 at para 15.
626 Exhibit HSU26 - Witness Statement of Robert Sheehy, 15 February 2019 at para 16.






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‘We don’t get uniforms at our work so we have to wear our own clothes. These get damaged 
and worn out very quickly with the kind of work we do. With cleaning we have to use the 
cleaning products the client wants us to use or has available. Often this is harsh chemicals like 
bleach that can splash and ruin our clothes. Clothing can also get spoiled with bodily fluids. 

Hammond Care does provide single use aprons and goggles that we can use, for example 
when dealing with bodily fluids. These are kept at head office and we’d need to drive to head 
office before our shift to pick them up if we are rostered to them. I don’t do this because the 
head office is usually in the opposite direction of my clients, and it doesn’t work out 
economically to make that trip.’627

[865] Ms Wilcock is also employed as a Community Care worker with HammondCare; her 
role involves helping out clients with personal care including showers, toileting, applying 
creams. At [12] – [14] of her statement Ms Wilcock says:

‘My role involves a lot of cleaning. We also make our clients’ beds, and sometimes they request 
us to make up other beds in the house as well. 

When cleaning we have to use whatever cleaning products the client has in their home. We 
usually end up using harsh chemicals like bleach. Using those products can ruin our clothes. 
Hammond Care does provide us with protective clothing and gloves. 

We also have to often have to clean bodily fluids or urine. Often we’re not dealing just with 
clients but with their pets as well, and I’ve had to clean urine and faeces from a dog that the 
client isn’t able to care for.’628

[866] Mr Elrick also gave evidence relevant to this claim. In his role as an area organiser for 
the HSU Victoria No.2 Branch, Mr Elrick regularly visits worksites and engages with 
members about issues they are experiencing at work. At [38] – [44] of his statement, Mr 
Elrick says:

‘When supporting a person with a disability it is best to be dressed casually as it creates less 
barriers between the client and support worker, and makes clients feel comfortable and at ease, 
it assists in avoiding unwanted attention in the public. inclusion. I’m only aware of a few 
disability services employers who require uniforms to be worn. 

Uniforms are common in the home care services which undertake a cleaning heavy practice…

Clients with behaviours of concern will often damage clothing to the point they need 
replacing. 

There are other ways a worker’s clothing also suffers greater wear and tear in the course of 
work. If you are cleaning you may spill or splash cleaning products on your clothes which 
causes fading and a breakdown of the clothing. In services that require medical supports, a 
worker will often want to have two separate wardrobes, one for work and one for personal. 
Work clothes will often be looser fitting for ease during manual handling, and washed more 
regularly due to close proximity with bodily fluids. 

                                               

627 Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019 at paras 33 – 34.
628 Exhibit HSU27 – Witness Statement of Pamela Wilcock, 15 February 2019 at paras 12 - 14.








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Some employees will have extra pairs of shoes that they use while showering clients. The 
additional pair of shoes are just a pair that can get wet and be dried out over the shift, to avoid 
having to wear wet shoes all days. 

Many worksites will provide surgical booties although these aren’t always effective of 
stopping water from a shower.’629

[867] ABI submits that the evidence is somewhat mixed in relation to practices in the home 
care sector and that the evidence as to the frequency with which employees’ clothing or 
uniforms become damaged is limited and vague:630  

(a) Mr Elrick states that ‘Uniforms are common in the home care services which 
undertake a cleaning heavy practice’631

(b) the witnesses employed by Wesley Mission are provided with uniforms,632

whereas Mr Sheehy states that some employers in the home care industry do 
not provide any uniforms, and the witnesses employed by HammondCare are 
not provided with uniforms633

(c) Mr Elrick makes a generic assertion, unsupported by any specific evidence, 
that clients will ‘often damage clothing to the point they need replacing’634

(d) Mr Elrick also outlines a couple of ways in which an employee’s clothing may 
get damaged. However, these appear to be more in the vein of hypothetical
scenarios or hearsay rather than testimony of real events that actually 
occurred635

(e) Ms Wilcock gave evidence that she is required to use cleaning products which 
can ‘ruin our clothes’, however she then states that HammondCare ‘does 
provide us with protective clothing and gloves’,636 and

(f) Ms Waddell gave evidence that her clothes ‘get damaged and worn out very 
quickly’637, however she does not provide any specific examples of that 
occurring, information about what items of clothing have been damaged, when 
the last time this occurred, etc. 

[868] We note here that the Unions do not agree with ABI’s characterisation of Mr Elrick’s 
evidence and submit that his evidence was not ‘hypothetical’ but based on his 7 years’ 

                                               

629 Exhibit HSU3 - Witness Statement of William Elrick, 14 February 2019 at paras 38 – 39, 41 – 44.
630 ABI Submission, 19 November 2019 at paras 9.8 – 9.9.
631 Exhibit HSU3 - Witness Statement of William Elrick, 14 February 2019 at para 39.
632 Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019 at para 18.
633 Exhibit HSU26 - Witness Statement of Robert Sheehy, 15 February 2019 at para 14.
634 Exhibit HSU3 - Witness Statement of William Elrick, 14 February 2019 at para 41.
635 Exhibit HSU3 - Witness Statement of William Elrick, 14 February 2019 at para 42.
636 Exhibit HSU27 – Witness Statement of Pamela Wilcock, 15 February 2019 at para 13.
637 Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019 at para 33.






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experience in disability support and social and community services roles, as well as his 
experience as a union organiser in the SACS sector. Nor did the Unions agree with ABI’s 
characterisation of the evidence of Ms Wilcock and Ms Waddell.

[869] Ai Group challenges the breadth of the proposition advanced by the HSU and aspects 
of the evidence relied on in support of that proposition. Ai Group submits that the evidence 
cited does not establish the likelihood of care work causing damage to employees’ clothing. 

[870] AFEI also submits that the evidence does not support a finding that ‘many employees, 
particularly support workers in home care and disability services, wear their own clothes to 
work and are not provided with a uniform’:

‘For example, Mr Elrick, although not a support worker himself, observes that uniforms are 
common in the home care sector, Ms Sinclair, a home care worker, is provided with shirts to 
wear by her employer and also paid a uniform allowance, and Mr Sheehy, who is not a support 
worker, concedes that some employers in the home care sector provide uniforms whilst others 
do not.’638 (footnotes omitted)

[871] AFEI also submits that the evidence of Ms Waddell and Ms Wilcock, who both work 
for the same employer, does not support the variation proposed, as both Ms Waddell and Ms 
Wilcock confirm that they are provided with protective clothing by their employer.639

[872] NDS accepts the finding proposed by the HSU to the extent there is likely to be some 
truth to the proposition that care work could cause damage to clothing, but challenges the 
significance of the proposed finding in the context of the existing Award provisions relating 
to uniforms and laundry.640

[873] We begin our consideration of the evidentiary findings by addressing some of the 
employer observations about the evidence. 

[874] ABI points to Mr Elrick’s evidence and in particular to his statement that ‘Uniforms 
are common in the home care services which undertake a cleaning heavy practice’.641 We 
acknowledge that there is some tension between Mr Elrick’s evidence and that of other 
witnesses, but note that Mr Elrick’s statement that ‘Uniforms are common’ is qualified by the 
reference to ‘services which undertake a cleaning heavy practice’. Hence Mr Elrick’s 
evidence is not that all home care services provide uniforms. We would also note that in his 
role as a HSU organiser Mr Elrick primarily deals with members and employers in the social 
and community sector, as opposed to the home care sector.

[875] ABI also contends that, although limited, the evidence suggests that employers 
provide various forms of personal protective equipment for use by employees such as 
‘protective clothing’, ‘gloves’, ‘single use aprons’ and ‘goggles’. Ai Group advances a similar 
submission.

                                               

638 AFEI Submission, 11 February 2020 at 2-62.
639 AFEI Submission, 11 February 2020 at 2-63.
640 NDS Submission, 7 February 2020 at para 3.4.
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[876] In support of this contention ABI points to the fact that some protective clothing is 
available to employees at HammondCare. However, we note that at paragraph [34] of her 
statement, Ms Waddell states: 

‘Hammond Care does provide single use aprons and goggles that we can use, for example when 
dealing with bodily fluids. These are kept at head office and we'd need to drive to head office 
before our shift to pick them up if we are rostered to them. I don't do this because the head 
office is usually in the opposite direction of my clients, and it doesn't work out economically to 
make that trip.’642

[877] Further, Mr Jeffrey Wright, the CEO of HammondCare, confirmed during the course 
of cross-examination that HammondCare home care employees were required to travel from 
home directly to their first client, rather than reporting to HammondCare’s premises first: 

‘And just in terms of the mechanics of doing the job, is it the case that home care workers are 
required to report in to HammondCare's premises every day, and then they move out to do 
their jobs from there?---No. That wouldn't be practical. 

They are required to go directly to the client's home?---First client.’643

[878] On the basis of this evidence it appears that personal protective equipment may not be 
practically available to some employees, as they have to pick up such equipment in their own 
time and cover the cost of travel themselves.

[879] We agree with the observation by a number of the employer parties that the evidence 
in respect of this claim is limited; however despite these limitations a number of propositions 
are largely uncontentious.

[880] We agree with ABI’s contention that the limited evidence suggests that it is common 
for support workers in the disability services sector to not wear uniforms when undertaking
work and that:  

‘The benefits of such an approach include that it helps to break down barriers between support 
workers and clients and avoids unwanted attention when in public.’644

[881] We also agree with the employers that the HSU’s assertion that employees’ clothes 
‘frequently become damaged, soiled or worn’ given the nature of the work they do, overstates 
the evidence. However, it is likely that some employees will have their clothing damaged or 
soiled because of the work they are required to undertake.

C Consideration

[882] It seems to us that an award variation is warranted to provide for the reimbursement of 
reasonable costs associated with the cleaning or replacement of personal clothing which has 
been soiled or damaged in the course of employment. The issue then becomes the form of 
such an award term.

                                               

642 Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019 at para 34.  
643 Transcript, 17 October 2019, PN2580-PN2581. 
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[883] As mentioned earlier, Business SA advanced a submission regarding the wording of 
any proposed clause and referred to what it described as the ‘standard wording’ dealing with 
the reimbursement of damaged clothing in the Manufacturing Award.645 Business SA referred 
to clause 32.2(d) of the Manufacturing Award which states:

‘(d) Damage to clothing, spectacles, hearing aids and tools

(i) Compensation must be made by an employer to an employee to the extent of 
the damage sustained where, in the course of work, clothing, spectacles, 
hearing aids or tools of trade are damaged or destroyed by fire or molten 
metal or through the use of corrosive substances. The employer’s liability in 
respect of tools is limited to the tools of trade which are ordinarily required 
for the performance of the employee’s duties. Compensation is not payable if 
an employee is entitled to workers compensation in respect of the damage.

(ii) Where an employee as a result of performing any duty required by the 
employer, and as a result of negligence of the employer, suffers any damage 
to or soiling of clothing or other personal equipment, including spectacles and 
hearing aids, the employer is liable for the replacement, repair or cleaning of 
such clothing or personal equipment including spectacles and hearing aids.’

[884] In Background Paper 1 we posed the following question to all other parties:

Q42. Is there merit in inserting a clause in similar terms (with appropriate amendment, e.g. to 
remove the reference to ‘molten metal’) into the SCHADS Award and if so, why?

[885] In a joint submission of 10 February 2020 the Unions state that they would not oppose 
a clause similar to that in the Manufacturing Award being inserted into the SCHADS Award, 
subject to removing the qualification where the damage is suffered as a consequence of the 
negligence of the employer. The Unions submit:

‘negligence should not be the touchstone for reimbursement for damaged clothing or equipment. 
The fact that such loss is suffered in the course of the employment should be sufficient to 
ground an entitlement to reimbursement’.646

[886] AFEI and Ai Group contend that there is no warrant for inserting such a term. AFEI 
goes on to observe that the term in the Manufacturing Award:

‘is very specific in detail and relates to (a) specifically foreseeable damage in the industry, and 
(b) the kind of damage that would foreseeably result in the item being destroyed/no longer 
functional, and (c) reduces the ambit for dispute about the application of the provisions.’647

[887] ABI submits that a sufficient evidentiary case has not been advanced that would 
justify the insertion of a clause of this type and that: 

                                               

645 Business SA submission, 12 July 2019, at para 11.
646 Joint Union Submission, 10 February 2020 at para 242.
647 AFEI Submission, 11 February 2020 at 2-65.






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‘The Manufacturing Award regulates very different industries and occupations to the SCHCDS 
Award, and so in that sense it is not an appropriate ‘benchmark’ in relation to an issue such as 
damage to clothing, etc.

The clause in the Manufacturing Award also has quite a confined operation, in that it only 
applies where prescribed items are “damaged or destroyed by fire or molten metal or through 
the use of corrosive substances”. This means that, by way of example, an employer would not 
be liable to compensate an employee for damaged spectacles where they drop them on a 
concrete floor. However, if the clause is migrated to the SCHCDS Award, it is not clear what 
industry-specific limitation would be adopted. For that reason, our clients are concerned that 
the adoption of this clause may drastically broaden the operation of the clause compared to 
how it currently operates under the Manufacturing Award.

There are also particular peculiarities to the clause in question. For example, it is unclear how 
subclauses (i) and (ii) interrelate and operate, given that sub-clause (i) appears to be quite 
broad and so would capture most circumstances that might arise under sub-clause (ii). As a 
general proposition, we do not consider that the Manufacturing Award clause is an appropriate 
clause to borrow from.’648

[888] NDS submits that the existing award provision regarding uniforms and laundry is 
sufficient but goes on to submit:

‘However, if the award were to be varied to address the HSU claim in relation to clothing other 
than uniforms, the proposed clause could be a reasonable starting point for drafting, subject to 
addressing concerns such as those raised by Ai Group and AFEI. Those concerns relate to 
identifying what the value of the clothing is, what extent of damage is necessary to require 
replacement, and confirming that the damage is work related.’649 (footnotes omitted)

[889] We are not attracted to the variation of the SCHADS Award to insert a provision in the 
same terms as clause 32.2(d) of the Manufacturing Award, largely for the reasons identified 
by ABI and AFEI. Nor do we think that negligence should be a prerequisite to reimbursement 
of soiled or damaged clothing.

[890] We direct that the parties confer about the form of a suitable variation, reflecting the 
views expressed above. A conference will be convened to facilitate those discussions.

6.3 THE UWU CLAIM

[891] As mentioned earlier, the SCHADS Award provides that in circumstances where an 
employee is required by their employer to wear a uniform the employer must supply the 
employee ‘with an adequate number of uniforms appropriate to the occupation’, free of cost.
The Award does not prescribe what an ‘adequate number of uniforms’ is; what is ‘adequate’ 
will depend on the circumstances.

[892] The UWU seeks to insert a new clause 20.3(b) as follows:650

                                               

648 ABI Submission, 10 February 2020, p 62.
649 NDS Submission, 7 February 2020, p 12.
650 UWU Submission, 15 February 2019 at para 58.






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‘(b) An adequate number of uniforms should allow an employee to work their agreed 
hours of work in a clean uniform without having to launder work uniforms more than once a 
week.’

[893] In short, employers would be required to provide employees with enough uniforms to 
allow employees to go the full week without needing to launder their work uniforms more 
than once per week. 

A Submissions

[894] The UWU submits:

‘Employees covered by the Award should be provided with enough uniforms to ensure 
that they are able to attend work in a clean uniform, without having to wash their 
uniforms more than once a week.

The evidence indicates that there are employees in this sector who are not provided 
with an adequate number of uniforms.’651

[895] The UWU contends that the variation proposed is ‘in line with’ the modern awards 
objective, specifically:652

 s.134(1)(a): the variation would assist the low paid to meet their needs; employees 
covered by the SCHADS Award can generally be considered ‘low paid’ and many 
work part-time, and

 s.134(1)(c): participation in the workforce is ‘facilitated by the dignity in having a 
clean uniform’.

[896] Ai Group, Business SA and AFEI all advanced submissions opposing the claim.

[897] ABI submits that a sufficient case has not been made out for the proposed variation 
and does not accept the contention advanced by the UWU that ‘the decision as to what 
constitutes an ‘adequate’ amount of uniforms is often made solely by the employer’.653 ABI 
submits that the Award terms are clear, and the obligation requires an objective assessment as 
to the adequacy of the number of uniforms to be provided, having regard to the particular 
circumstances. If there is any dispute about the number of uniforms provided by a particular 
employer, the matter can be resolved through the application of the dispute resolution 
procedure provided for in the Award including, if necessary, the involvement of the 
Commission.

B Evidence

[898] ABI submits that the evidence as to the number of uniforms provided by employers is 
limited.  For example:

                                               

651 UWU Submission, 15 February 2019 at paras 54 – 55.
652 UWU Submission, 15 February 2019 at para 59.
653 ABI Submission, 12 July 2019 at para 10.11.






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 Mr Sheehy states that ‘Other employers will provide only one t-shirt a year’,
however the identity of these employers is not disclosed, and no further detail is 
provided, and

 Ms Sinclair gave evidence that she was initially provided with only 2 shirts upon 
commencement of employment, however was then given an additional shirt and 
then a further 3 additional shirts after requesting additional uniforms from her 
employer (such that she then had a total of 6 shirts).

[899] ABI contends that there is no evidence that would support a finding that the current 
terms of the Award are not operating satisfactorily and nor is there evidence of any disputes 
having been initiated in relation to the provision or non-provision of uniforms.654

[900] The UWU claim rests on the following propositions:

1. Employees in this sector may be required by their employer to wear a 
uniform.655

2. Employees may not be provided with an adequate number of uniform items.656

3. Where an employee is not provided with an adequate number of uniforms, the 
employee may have to wash their uniforms multiple times a week.657

[901] The only evidence referred to by the UWU in support of these propositions is that of 
Ms Belinda Sinclair.658

[902] Ms Sinclair is employed by Wesley Mission as a part-time home care worker on a 
contract that guarantees her a minimum of 30 hours work per fortnight. Ms Sinclair works 5
days a week, Monday to Friday. Ms Sinclair’s evidence was that she was initially provided 
with 2 uniform shirts which identified her as a Wesley Mission care worker.659 Wesley 
Mission has a uniform policy that care workers must wear the shirts when attending clients. 
After requesting more shirts, on a number of occasions, she was eventually provided with 5
uniform shirts. Ms Sinclair was also paid a laundry allowance each fortnight. 

[903] The evidence relied upon does not make good the UWU’s proposition that employees 
are not being provided with an adequate number of uniform items. The UWU has failed to 
establish a sufficiently cogent merit case in support of its proposed variation. We dismiss the 
UWU’s claim.

7 OVERTIME FOR PART-TIME AND CASUAL WORKERS CLAIM
                                               

654 ABI Submission, 19 November 2019 at paras 9.13 – 9.14.
655 Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019, at para 18.
656 Ibid at [19].
657 Ibid.
658

Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019.
659 Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019, at paras 18 – 21; Transcript, 15 October 2019 at 

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7.1 BACKGROUND

[904] Before turning to the HSU’s claim it is important to put the issues raised in a broader 
context, beginning with the nature of part-time employment itself.

[905] The most significant expansion of award part-time employment provisions occurred as 
a result of the 1995 Personal Carer’s Leave Test Cast – Stage 2 decision.660

[906] In that decision the Full Bench determined that part-time work provisions should, on 
application, be introduced into awards which did not already have them and that the adequacy 
and relevance of existing provisions should be reviewed against the characteristics of the 
particular industry or enterprise covered by the award.661  The Full Bench determined that 2
matters needed to be considered in the development of ‘fair and equitable’ part-time work 
provisions, namely: 

(i) it was necessary to ensure that part-time employees were provided with pro-
rata entitlements to the benefits available to full-time employees, including 
equitable access to training and career path opportunities, and 

(ii) part-time work needs to be clearly distinguished from casual employment. 
While the provision of pro rata benefits is one means of providing such a 
distinction, other measures are also needed. Part-time work provisions should 
specify the minimum number of weekly hours to be worked and provide some 
regularity in the manner in which those hours are worked. 

[907] The part-time employment provision inserted in the Hospitality Industry -
Accommodation, Hotels, Resorts and Gaming Award 1995 because of the Award 
Simplification Decision662 became a model clause adopted in many awards. Its features were 
described in a Full Bench decision663 issued as part of the award modernisation process 
conducted pursuant to Part 10A of the Workplace Relations Act 1996 (Cth) as follows:

‘The provision characterises a regular part-time employee as an employee who works less than 
full-time hours of 38 per week, has reasonably predictable hours of work and receives, on a 
pro rata basis, equivalent pay and conditions to those of full-time employees who do the same 
kind of work. It requires a written agreement on a regular pattern of work, specifying at least 
the hours worked each day, which days of the week the employee will work and the actual 
starting and finishing times each day, with variation in writing being permissible. All time 
worked in excess of mutually arranged hours is overtime.’664

[908] At a conceptual level part-time employment is weekly employment for an agreed 
number of hours per week (or per roster cycle) which is less than full-time hours and which 
includes all the benefits of full-time employment, paid on a pro-rata basis. The general 
principle that part-time employees are entitled to the benefits of full-time employment albeit 

                                               

660 (1995) 62 IR 48.
661 Ibid, p 72.
662

H0008 Dec 1533/97 M Print P7500.
663 Award Modernisation [2009] AIRCFB 826.
664 Award Modernisation [2009] AIRCFB 826 at [136].






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on a pro-rata basis is well established and is reflected in the Act with respect to national 
employment standard entitlements and unfair dismissal rights, and in the SCHADS Award 
(see clause 10.3(b)). 

[909] The other relevant contextual consideration is the fact that the part-time provisions in 
the SCHADS Award have been the subject of recent consideration in the Part-time and 
Casual Employment Common Issue Proceedings as part of the Review. In those proceedings 
ABI sought to amend the current part-time employment provision to allow greater flexibility 
in the way in which the hours of work for part-time employees are fixed.

[910] The amendments sought by ABI in those proceedings are shown in mark-up below:

‘10.3 Part-time employment

(a) A part-time employee is one who is engaged to work less than 38 hours per week or an 
average of less than 38 hours per week and who has reasonably predictable hours of 
work.

(b) The terms of this award will apply to part-time employees on a pro rata basis on the 
basis that the ordinary weekly hours of work for full-time employees are 38.

(c) Subject to clause 10.3(d), B before commencing employment, the employer and the 
employee will agree in writing on a the regular pattern of work including the number of 
hours to be worked each week, the days of the week the employee will work and the 
starting and finishing times each day. Any agreed variation to the regular pattern of 
work will be recorded in writing.

(d) Despite anything else in this clause 10.3, an employer and an employee may agree not 
to fix the employee’s hours of work if the employee is engaged to provide supports to 
clients in circumstances where the client has discretion to vary when the support is 
provided. In these circumstances:

(i) before commencing employment the employer and the employee will agree in 
writing on:

(A) the number of hours to be worked each week (or the average number 
of hours); and

(B) the days and/or times of the week that the employee is not available to 
work (if any);

(ii) the employee’s hours will be set by the employer in accordance with clause 
25.5, save that the employee will not be required to work on those days or at 
those times referred to in clause 10.3(d)(i)(B).

(iii) Any agreed variation to the employee’s availability or to the number of hours to 
be worked must be recorded in writing.’

[911] ABI’s proposed variation, in its final form, was only directed at those aspects of the 
disability service provision which were said to be subject to client control and thus where the 
employer had the least control over the hours required to be worked. In respect of part-time 
employees in that area, ABI proposed an employment model in which the employer would 
have the ability to roster hours in accordance with clause 25.5, subject to providing an agreed 








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guaranteed number of weekly hours and such working hours being rostered at periods when 
the employee had agreed to be available to work.

[912] The Part-time and Casual Employment Full Bench rejected ABI’s application on the 
basis that it was not satisfied that the provision proposed by ABI was necessary to achieve the 
modern awards objective.665 The reasons given by the Full Bench for concluding that the 
proposed variation was not necessary include, relevantly:

‘that the current provision as it is applied in practice is reasonably flexible. Although the pattern 
of hours of work must be fixed in a written agreement established at the commencement of the
employment, they may thereafter be changed by agreement to meet either temporary 
exigencies or permanent changes in service demand. The evidence before us did not disclose 
any significant difficulty in obtaining the agreement of employees to alter their hours to meet 
changing circumstances, although we accept that the need for the agreement to be obtained and 
then recorded in writing does impose an administrative burden to some extent. Further, clause 
28.2(b)(iii) allows for part-time workers to work additional hours up to 10 in a day or 38 in a 
week or 76 in a fortnight without the payment of any overtime penalty rate, so that there is a 
considerable capacity to assign additional hours that may arise at short notice to employees 
without the cost exceeding what the NDIA price structure will allow. The evidence showed 
that employees are generally willing to work such additional hours if it does not interfere with 
fixed private commitments; for example, in the case of a person with a disability attending a 
social event which ran over time, the employee involved readily agreed to stay on for the 
additional time until it ended.666 (Emphasis added)

[913] While the Part-time and Casual Employment Full Bench rejected ABI’s application it 
went on to observe that there was merit in clarifying the operation of the part-time clause:

‘However, having regard to the evidence before us, we do consider that there is merit in 
clarifying that an agreed part-time work arrangement does not necessarily have to provide for 
the same guaranteed number of hours in each week. At the commencement of the employment, 
or subsequently by agreement in writing, we consider that it would be open for the employer 
and the employee to enter into an arrangement which provides, for example, that the employee 
worked 20 hours and 30 hours in alternating weeks, or that a specified higher number of hours 
would be worked at particular times of the year (such as during a season of sports events which 
the participant wished to attend). An arrangement of that nature would have the stability and 
predictability desired by the part-time employee, whilst allowing the part-time arrangement to 
meet the service requirements of particular NDIS plans. To the extent that the current part-time 
provision in the SCHCDSI Award does not allow this (which we doubt), we consider that the 
modern awards objective would be best met in respect of the disability services sector if the 
provision was amended accordingly. ABI will be directed to prepare a draft determination to 
implement this conclusion, and we will receive further submissions from interested parties if 
there is disagreement about the form that the award variation should take.’667

[914] The Full Bench subsequently varied the part-time clause in the SCHADS Award:668

‘1. By deleting clause 10.3(c) and inserting the following:

                                               

665 Part-time and Casual Employment Case at [637].
666 Part-time and Casual Employment Case at [637].
667 Ibid at [641].
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(c) Before commencing employment, the employer and employee will agree in 
writing on:

(i) on a regular pattern of work including the number of hours to be 
worked each week, and

(ii) the days of the week the employee will work and the starting and 
finishing times each day.

2. By inserting a new clause 10.3(d) as follows:

(d) The agreed regular pattern of work does not necessarily have to provide for 
the same guaranteed number of hours in each week 

3. By inserting a new clause 10.3(e) as follows:

(e) The agreement made pursuant to clause 10.3(c) may subsequently be varied 
by agreement between the employer and employee in writing. Any such 
agreement may be ongoing or for a specified period of time.’

[915] The current part-time clause provides:

‘10.3 Part-time employment

(a) A part-time employee is one who is engaged to work less than 38 hours per 
week or an average of less than 38 hours per week and who has reasonably 
predictable hours of work.

(b) The terms of this award will apply to part-time employees on a pro rata basis 
on the basis that the ordinary weekly hours of work for full-time employees 
are 38.

(c) Before commencing employment, the employer and employee will agree in 
writing on: 

(i) on a regular pattern of work including the number of hours to be 
worked each week, and 

(ii) the days of the week the employee will work and the starting and 
finishing times each day.

(d) The agreed regular pattern of work does not necessarily have to provide for the 
same guaranteed number of hours in each week

(e) The agreement made pursuant to clause 10.3(c) may subsequently be varied by 
agreement between the employer and employee in writing. Any such agreement 
may be ongoing or for a specified period of time.’








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7.2 THE CLAIM

[916] The HSU seeks to vary clause 28.1(b)(ii) – (iii) as follows:669

‘28.1(b)(ii) All time worked by part-time or casual employees which exceeds 10 8 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.

28.1(b)(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). All time worked by part-time 
employees which exceeds the hours agreed in clause 10.3(c) will be treated as overtime and 
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.’

[917] There are 2 discrete aspects to the HSU’s claim:

(i) the variation of clause 28.1(b)(ii) so that casual and part-time employees are 
paid at overtime rates for all time worked in excess of 8 hours per day instead 
of the current threshold of 10 hours per day; and

(ii) the variation of clause 28.1(b)(iii) so that part-time employees are paid at 
overtime rates for all time worked in excess of the hours agreed in clause 
10.3(c). Clause 10.3(c) provides that before commencing employment the 
employer and part-time employee must enter into an agreement in writing on a 
regular pattern of work, including the number of hours to be worked each 
week; the days of the week the employee will work; and the start and finish 
times each day.

[918] The first part of the claim is straightforward, it simply seeks to reduce the threshold 
number of hours to be worked per day before overtime rates are payable for part-time and 
casual employees. 

[919] As to the second part of the claim, it is necessary to understand the context. Clause
28.1(b)(iii) allows for part-time employees to work hours in addition to their agreed 
guaranteed minimum hours. It is convenient to refer to such hours as ‘additional hours’ and to 
the hours provided in the part-time employment agreement under clause 10.3(c) as 
‘guaranteed hours’. We set out the terms of clause 10.3 above. A part-time employee may 
work a combination of guaranteed hours and additional hours totalling up to 10 in a day or 38 
in a week or 76 in a fortnight without the payment of any overtime penalty rate. The variation 
proposed by the HSU would remove that flexibility.

[920] The submissions and witness evidence relevant to this claim are set out at 
Attachment K. 

                                               

669 HSU Amended Draft Determination, 15 February 2019.






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7.3 THE SUBMISSIONS

[921] The HSU contends that its claim is ‘designed to address the inconsistency in the 
Award as between full-time and part-time employees’.670

[922] The HSU advances the general argument that ‘the way in which overtime functions 
under the Award for part-time employees does not meet the modern awards objective, which 
recognises (at s.134(1)(da) of the Act), the need to provide additional remuneration for 
employees working overtime; or employees working irregular or unpredictable hours’.671 Four 
more specific arguments are advanced in support of the claim:

1. The claim ‘…is designed to address the inconsistency in the Award as between 
full-time and part-time employees. The former are paid overtime for work in 
excess of rostered ordinary hours (i.e. 8 hrs); the latter aren’t entitled to 
overtime until they have worked 10 hours in the course of a day’. The HSU 
submits that given the proportion of part-time workers performing care work; 
the demands of that work; and the capacity to minimise paid hours of work by 
the use of broken shifts, there is no warrant for a different approach towards 
the payment of overtime to part-time workers.672

2. Part-time employees should be entitled to overtime for work beyond their 
agreed pattern of work. The absence of any penalty associated with the 
performance of such work creates a structural incentive to underestimate the 
hours of work required of a part-time employee at the time of engagement 
and/or rostering, and to utilise part-time workers like a pool of casual 
employees.673

3. Work performed by carers in private homes and in the community providing 
personal or domestic assistance for elderly clients or clients with a disability is 
both physically and mentally taxing. The demanding nature of the work is said 
to be compounded by the travel involved in the performance of the work; and, 
during long shifts the lack of opportunity, or appropriate facility, for workers 
to take proper breaks and rest.674

4. The Award already provides considerable flexibility for employers by 
providing for all hours of part-time employees up to 38 hours in the course of a 
week or 76 hours in the course of a fortnight to be paid at single time. This 
allows employers to utilise part-time care workers on additional days to those 
they are contracted or rostered. However, where hours extend on any particular 
day, the rates of pay applicable to such hours should compensate for their 
unsociable, unpredictable and irregular nature with an overtime loading.675

                                               

670 HSU Submission, 18 November 2019 at para 105.
671 HSU Submission, 15 February 2019 at para 45.
672 HSU Submission, 18 November 2019 at paras 105–106.
673 HSU Submission, 15 February 2019 at para 46.
674 HSU Submission, 15 February 2019 at para 47.
675 HSU Submission, 18 November 2019 at paras 105–106.






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[923] The claim is opposed by ABI, NDS, AFEI and Ai Group.

7.4 EVIDENCE

[924] In its submission of 18 November 2019 the HSU seeks the following findings in 
support of its claim:676

1. The Commission would be satisfied that working in a face to face contact role 
with clients with disability or requiring assistance due to their age, is likely to 
be physically and mentally taxing work. Ms Waddell described once working a 
9 hour shift with a single client, during which period she had no lunch or tea 
break, and only the opportunity to quickly eat her lunch while continuing to 
provide care to the client.677

2. Mr Lobert describes the demands of the work as follows:

‘It can be difficult working one on one with someone with a disability for 7 hours or 
more. Because the work is one on one, you can’t have a break, you can’t get away and 
you can’t switch off.’678

3. Home care workers are often required to shower clients, assisting clients in and 
out of confined spaces in private homes, which have not been specially designed 
to facilitate personal care and assistance.679 They also provide other forms of 
domestic assistance, which can be more physically demanding, wearing on the 
body and tiring than many forms of personal care.680

4. Given the manner in which employees routinely work broken shifts, frequently 
breaking shifts several times during the course of a day, it is unlikely part-time 
workers would accrue 10 hours of paid work in the course of a day.

5. In Mr Steiner’s case, he is routinely on duty for much longer than the time he 
paid for; often working for more than 10 hours in a day, but not being paid for 
all of that time.681

6. In Mr Quinn’s case, as set out above, even on a day where his work commenced 
at 7.30a.m. and concluded just after midnight, he did not accrue 10 hours of 
work in total.682

7. The SCHADS Award already provides considerable flexibility for employers by 
providing for all hours of part-time employees up to 38 hours in the course of a 

                                               

676 HSU Submission, 18 November 2019 at 107 – 113.
677 Exhibit HSU4 - Witness Statement of Heather Waddell, 15 February 2019 at para 27.
678 Exhibit HSU29 – Witness Statement of Bernie Lobert, 15 February 2019 at para 21.
679 Exhibit HSU27 – Witness Statement of Pamela Wilcock, 15 February 2019 at para 10.
680 Exhibit HSU28 - Witness Statement of Thelma Thames, 15 February 2019 at paras 6 – 7.
681 Exhibit ASU2 – Witness Statement of Robert Steiner, 15 October 2019 at para 17.
682 Exhibit HSU31 – Witness Statement of Scott Quinn, 3 October 2019 at para 43.






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week or 76 hours in the course of a fortnight to be paid at single time. This 
allows employers to utilise part-time care workers on additional days to those 
they are contracted or rostered. However, where hours extend on any particular 
day, the rates of pay applicable to such hours should compensate for their 
unsociable, unpredictable and irregular nature with an overtime loading.

[925] Items 2, 5 and 6 are not proposed findings but simply summarise the evidence of 
particular witnesses. Item 7 is not a proposed finding of fact it is a submission.

[926] As to proposed finding 1 we accept that such work can be physically and mentally 
taxing, but, as ABI submits, the degree of exertion will depend on a range of contextual 
factors including the particular work, the client and the employee.683 We note that in support 
of the proposed finding the HSU only refers to the evidence of Ms Waddell and that her 
evidence only relates to a single shift. At [27] of her statement, Ms Waddell says:

‘On one occasion I recall working a nine hour straight shift. I drove to a client in Ulladulla and 
was there from 7am to 4pm, and was with the client the whole time.’684

[927] We note that the hours worked by Ms Waddell were within the scope of her ‘available 
hours’ which are 7am to 7pm, 5 days a week.685

[928] To the extent it is suggested that Ms Waddell worked without a break we note that 
clause 27 relevantly provides:

‘27.1 Meal breaks

… (b) Where an employee is required to work during a meal break and continuously 
thereafter, they will be paid overtime for all time worked until the meal break is taken.

27.2 Tea breaks

(a) Every employee will be entitled to a paid 10 minute tea break in each four hours 
worked at a time to be agreed between the employer and employee.

(b) Tea breaks will count as time worked.’

[929] We also note that the Act directly addresses the adverse consequences associated with 
working excessive hours by providing a right to refuse to work unreasonable hours. Section 
62(1) provides:

‘(1) An employer must not request or require an employee to work more than the following 
number of hours in a week unless the additional hours are reasonable:

(a) for a full-time employee—38 hours; or

(b) for an employee who is not a full-time employee—the lesser of:

                                               

683 ABI Submission, 10 February 2020 at para 62.
684 Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019 at para 27.
685 Exhibit HSU4 – Witness Statement of Heather Waddell, 15 February 2019 at para 7.






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(i) 38 hours; and 

(ii) the employee’s ordinary hours of work in a week.’

[930] Section 62(2) gives an employee a right to refuse to work additional hours ‘if they are 
unreasonable’. The criteria for determining whether additional hours are reasonable or 
unreasonable are set out in s.62(3) of the Act.

[931] The cases which have applied these provisions make it clear that an employer cannot 
simply require an employee to work additional hours without regard to the employee’s 
personal circumstances.686 What is ‘reasonable’ is necessarily assessed on a case-by-case 
basis, by reference to the employee’s circumstances and the employer’s business in 
accordance with the terms of s.62(3) of the Act.687

[932] As to proposed finding 3, it may be accepted that employees provide ‘other forms of 
assistance’, but it is unclear what ‘other forms of assistance’ are said to be ‘physically 
demanding’, ‘wearing on the body’ and/or ‘tiring’. The HSU only cites the evidence of one 
witness in support of the proposed finding – Ms Thames. Ms Thames is employed by an Aged 
Care provider and her role involves assisting clients in aged care. At [6] of her statement Ms 
Thames says:

‘A lot of my work now is domestic assistance. The employer tells us this is because clients now 
get more choice in their aged care packages and these are the tasks the clients want us to do. I 
find domestic assistance to be more physically demanding, wearing on the body and tiring than 
personal care. A few years ago, the domestic assistance shifts would be limited to 3 a week. 
Now we usually have 3 domestic assistance shifts a day.’688

[933] For the reasons given, a finding in the form sought does not advance the HSU’s claim.

[934] The evidentiary basis of proposed finding 4 is unstated, but it appears to be based on 
the evidence of Mr Steiner and Mr Quinn, both of whom gave evidence of performing broken 
or split shifts.689 Of course that evidence cannot be said to substantiate a finding in relation to 
part-time employees who do not perform broken shifts (which are more common amongst 
employees performing disability services work and home care employees).690

[935] But even if we accept the proposition that part-time workers are unlikely to accrue 10 
hours of paid work in a day; how does that finding advance the HSU’s argument? Do we 
reduce the overtime threshold to the point where part-time employees are likely to have 
accrued sufficient hours to be entitled to overtime pay? And, if so, what is that point and what 
are the merits of adopting such a course?

                                               

686 See ALDI Foods Pty Ltd v TWU (2012) 227 IR 120; Premier Pet Pty Ltd trading as Bay Fish v Brown (No 2) [2013] FCA 

167; and Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875.
687 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 at [173].
688 Exhibit HSU28 – Witness Statement of Thelma Thames, 15 February 2019 at para 6.
689 Exhibit ASU2 – Witness Statement of Robert Steiner, 15 October 2019 at para 14; Exhibit HSU31 – Witness Statement of 

Scott Quinn, 3 October 2019 at para 27.
690 SCHADS Award, clause 25.6.








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[936] In a later joint submission filed by the HSU, ASU and UWU on 10 February 2020, the 
findings sought were expressed in slightly different terms to those sought in the HSU’s 18 
November 2019 submission:

‘13. The Unions seek the following findings in relation to its claim to vary the overtime 
provisions for part-time and casual employees: 

a. employers in the home care and social and community services sectors rely on part-
time employees regularly working additional hours above their contracted weekly or 
fortnightly hours.691

b. employers gave evidence that high numbers of additional hours worked by 
employees did not give rise to a review of employees’ guaranteed hours.692

c. under current award provisions there is little incentive for employers to review 
employees’ guaranteed hours. 

d. under current award provisions, full-time employees work up to 8 ordinary hours 
per shift, and can only work a 10 hour shift by agreement.693 However, part-time and 
casual employees can be required to work 10 hour shifts without agreement, without 
payment of overtime.694

e. for part-time and casual employees working broken shifts, current award provisions 
means they are rarely entitled to overtime when working over a 10 hour span, unless 
they work beyond the 12 hour span for a broken shift.’695

[937] Items (c) and (d) above are not proposed findings of fact, they are submissions. As to 
item (d), to the extent that there may be some ambiguity as to whether part-time employees 
can be required to work additional hours we think clause 28.1(b)(iii) should be amended to 
make it clear that part-time employees have a right to refuse to work additional hours at 
ordinary time rates. We return to this matter later. 

[938] Item (e) is similar to Item 4 in the findings proposed in the HSU’s submission of 18 
November 2019 and we have dealt with it at [934]– [935] above. 

[939] We accept proposed finding (a), noting that it does not appear to have been opposed 
by the employer parties and is a reasonable inference to draw from the evidence of a few of 
the employers’ witnesses. 

[940] Proposed finding (b) is relevant to the HSU’s structural incentive argument and reads 
as follows:

                                               

691 Exhibit ABI9 – Witness Statement of Joyce Wang, 12 July 2019 at paras 46 - 48; Transcript, 18 October 2019, cross-
examination of Joyce Wang at PN3572 – PN 3605; Transcript, 17 October 2019, cross-examination of Jeffery Wright at 

PN2652 – PN2658; Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at para 35.
692 Transcript, 18 October 2019, cross-examination of Joyce Wang at PN3605; Transcript, 17 October 2019, cross-

examination of Jeffery Wright at PN2659 - PN2667.
693 SCHADS Award, clause 25.1.
694 SCHADS Award, clause 28.1(b)(ii)-(iii).
695 SCHADS Award, clause 25.6(c).






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‘employers gave evidence that high numbers of additional hours worked by employees did not 
give rise to a review of employees’ guaranteed hours.696

[941] We would observe at the outset that item (b) does not, in terms, express a particular 
finding - it simply refers to the evidence given by ‘employers’. The evidence of 2 employers 
is cited in support of the stated proposition, Ms Wang and Mr Wright. The relevant passage 
from Ms Wang’s cross-examination is set out below:

‘Do you see that as problematic, the number of additional hours required in paragraphs 46 and 
47 of your statement?---I don't quite really understand what your question is, sorry.

Well, the part-time employees are contracted with a particular number of hours - - -?---Yes.

- - - but it seems that there is a large number of additional hours that they're being required to 
work or they're being asked to work and so it's on a voluntary basis, I 
presume?---Yes. Obviously when we receive the client's request, we ask the workers to work 
more hours.

Yes?---Only when they agree, we roster them to work the additional hours.

Does CASS consider that need to fill so many additional hours a problem in terms of its 
management of its labour force?---For this one we actually have talked to the manager of 
Home Ageing Services and disability services, but they told me it's very difficult for them 
because the clients have so many changes. If we guarantee more hours for the part-time 
workers, actually we may face the situation we don't have enough work for them in some 
occasion.

So I take it from that that CASS hasn't considered as one strategy to deal with this issue 
increasing the guaranteed hours for part-time workers?---No.’697

[942] The relevant passage from Mr Wright’s cross-examination is set out below:

‘Can I ask you, has HammondCare given any thought to reviewing the definite hours that it 
offers to part-timers?---Well, couple of things: (1) we offer contract hours and additional 
hours. We offer additional hours, and care workers actually try and do what they can to get 
additional hours within their availability, of course. And it's part of - and even in our 
enterprise agreement there's a provision there for part-timers, if they're regularly doing, that 
they can renegotiate their contract hours up. So it is a fluid situation. And the hours - it gives 
the flexibility for both HammondCare and the care workers to meet client needs, pick up 
additional hours, and I suppose the - I will let you ask more questions.

No. Sorry, please go on if you - - - ?---Just from the overtime, and it's finishing off that 
clause, and if we were to pay overtime for those 14,000 hours for the month, that's $175,000 
or a couple of million dollars in a year in terms of a cost if it was to be at half time extra.

So just going through your answer, then, do I take it then that the answer to my question is, 
'No, HammondCare hasn't gone back to review whether it should offer some additional 
guaranteed hours to part-timers in response to that number of additional hours?---When you 
say guaranteed, do you mean contract hours?

                                               

696 Transcript, 18 October 2019, cross-examination of Joyce Wang, PN3605; Transcript, 17 October 2019, cross-examination 

of Jeffery Wright, PN2659 - PN2667.
697 Transcript, 18 October 2019 at PN3600-PN3605.






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Yes?---Yes, we review them. And that's an obligation in our enterprise agreement that we do 
that.

No, I'm not talking about that process of review. I'm saying as a consequence of racking up 
that many hours in the month of May, did that cause HammondCare to think, 'Oh, maybe we 
need to get some people onto some greater guaranteed hours per week'?---(1) We were able to 
meet those additional hours through our care workers who want them, so it serves the 
operational purpose. In terms of recruiting additional staff, that's operating in a different 
environment, because additional staff are difficult to obtain in the current environment. For 
instance, that's why we say on our enterprise agreement we offer a broken shift 
allowance. That's one of the differentiators we use to separate us from other providers. Our 
care workers are - - -

Do I take it that the answer - - - ?--- - - - happier to get those additional hours, and we look to 
review their contract hours, and we do look at recruiting additional staff where we need to.

All right. But does that mean that the answer to my question is: 14,000 additional hours in 
May didn't lead to HammondCare reviewing the amount of guaranteed hours it offers its part-
time workforce?---I would just agree with you - agree with your answer, given the 
explanation - - -

If they in fact did, please let me know. If HammondCare in fact did that, please let me 
know?---I only know from operations that they review hours all the time. So they've got to 
match the care hours with the staffing hours, so there's always a match there. If we run out of 
hours to meet the care needs, then obviously that's a recruitment need. So that's up to a site, an 
office manager or area manager to review its hours constantly: do we need to recruit extra 
staff to meet the care hours; or are there sufficient hours on those additional hours that are 
presently picked up by staff who are happy to pick them up? So to come back to answer your 
question, an area manager would review its hours on a monthly basis in its operational area.

All right. But you don't have any direct knowledge of this having taken place?---No.698

[943] It is apparent from Ms Wang’s evidence that 1 employer, CASS, has not considered 
increasing the guaranteed hours provided to part-time employees as a response to the number 
of additional hours offered. Mr Wright’s evidence is less definitive. He describes the situation 
as ‘fluid’ and refers to HammondCare’s obligation under its enterprise agreement for part-
timers to ‘renegotiate their contract hours up’. The evidence relied on is hardly definitive and 
is insufficient to support any general finding that employers in the sector do not review the 
guaranteed hours of part-time employees on the basis of the number of additional hours 
worked.

[944] The various employer organisations proposed the following 4 findings:

1. Employers regularly offer part-time employees additional hours in excess of 
their guaranteed hours.699

2. Many part-time employees would like to receive more hours of work.700

                                               

698 Transcript, 17 October 2019 at PN2659-PN2667.
699 ABI Submission, 19 November 2019 at 7.7.






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3. Part-time employees are not being forced to work additional hours.701

4. For services delivered under the NDIS, the cost modelling which was used to 
devise the price caps imposed by the NDIA does not account for overtime rates 
of pay.702

[945] The proposed findings were uncontested and are supported by the evidence. As to the 
proposition that employers regularly offer part-time employees additional hours:

 Ms Ryan, Chief Executive Officer of Community Care Options Limited 
(Community Care) gave evidence that Community Care’s 82 part-time employees 
are typically employed on 15-22 hours per week contracts and that most part-time 
employees work above their contracted hours. As to these ‘additional’ hours Ms 
Ryan says: 

‘The reason for this is that we can identify between 15 and 22 hours per week is 
sustainable, but cannot commit to any more, if clients get sick or go into hospital for 
extended periods it can be difficult to fill staff contracts …

Most part-time employees are offered additional hours of work. Employees are not 
required to accept the additional work, this is mutually agreed. The majority of our 
part-time employees work above their contracted hours, with many working in excess 
of 30 hours per week. There are times however when we pay staff for their contracted 
hours, and they have not worked that many hours.

In the past year, part-time employees have worked 95 000 hours above their 
contracted hours.’703

 Ms Wang, Senior Executive Officer of Human Resources Management of CASS 
Care Limited (CASS), gave evidence that CASS regularly offers part-time 
employees work in excess of their contracted hours. In the month of June 2019 
about 88% of part-time support workers in ‘Home Ageing Services’ worked 
additional hours, ranging from 5 to 15 hours; and 100% of ‘Disability Service’ part-
time employees worked additional hours ranging from 5 to 20 hours.704 In the 
course of cross-examination Ms Wang agreed that the majority of Home Ageing 
Services and Disability Service part-time employees work additional hours,705 and

 Mr Wright, People Services Operations Manager of HammondCare, gave evidence 
that HammondCare offers part-time employees additional hours, within their agreed 
availability, in excess of their guaranteed minimum hours in their contract. 

                                                                                                                                                  

700 AFEI Submission, 19 November 2019 at A-3; Ai Group Submission, 18 November 2019 at 7; ABI Submission, 19 
November 2019 at 7.9.

701 AFEI Submission, 19 November 2019 at A-4.
702 ABI Submission, 19 November 2019 at 7.10.
703 Exhibit ABI6 - Witness Statement of Deborah Ryan, 12 July 2019 at paras 21, 55 – 57.
704 Exhibit ABI9 – Witness Statement of Joyce Wang, 12 July 2019 at paras 45 – 48.
705 Transcript, 18 October 2019 at PN3578-PN3584.






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HammondCare employs 2,350 part-time employees and during May 2019 provided 
in excess of 14,000 additional hours to those employees.706

[946] The proposition that part-time employees want to work additional hours was supported 
by the evidence of Ms Thames,707 Ms Fleming708 and Ms Stewart.709

[947] The evidence of Mr Wright,710 Ms Wang711 and Ms Sinclair712 supports the 
proposition that part-time employees are not coerced to work additional hours.

[948] The proposition that the NDIA cost modelling used to devise the price caps under the 
NDIS does not account for overtime rates of pay, is uncontested.713

[949] The proposed findings are also consistent with the findings made by the Part-time and 
Casual Employment Full Bench (see section 7.1 above from [904]).  

[950] We will make the findings in the terms set out at [944] above.

7.5 CONSIDERATION 

[951] As we have mentioned, the HSU’s claim is said to be designed ‘to address the 
inconsistency in the Award as between full-time and part-time employees’.714 The premise of 
that proposition is that full-time employees ‘are paid overtime for work in excess of rostered 
ordinary hours (i.e. 8 hours); the latter (i.e. part-time employees) aren’t entitled to overtime 
until they have worked 10 hours in the course of a day’.715 For the reasons which follow we 
find this argument unpersuasive. On analysis the premise of the proposition advanced by the 
HSU is incorrect. To explain our conclusion we need to set out the relevant terms which apply 
to full-time and part-time employees.

[952] The ordinary hours of work for full-time employees are set out in clause 25.1:

‘25.1 Ordinary hours of work

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

(i) in a week of five days in shifts not exceeding eight hours each;

                                               

706 Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at paras 14, 34 – 35. Also see Exhibit ABI5 – Witness 

Statement of Graham Shanahan, 28 June 2019 at para 30, Exhibit ABI7 – Witness Statement of Scott Harvey, 2 July 

2019 at 50; Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 at para 52.
707 Exhibit HSU28 – Witness Statement of Thelma Thames, 15 February 2019 at para 9. 
708 Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at para 17. 
709 Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 11. See also Transcript, 17 October 2019, 

cross-examination of Jeffrey Wright at PN2659.
710 Transcript, 17 October 2019 at PN2727. 
711 Transcript, 18 October 2019 at PN3603. 
712 Transcript, 15 October 2019 at PN612-PN613.
713 NDIS Price Guide 2019-20, 1 July 2019, CB2796.
714 HSU Submission, 18 November 2019 at para 105.
715 Ibid.






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(ii) in a fortnight of 76 hours in 10 shifts not exceeding eight hours each; or

(iii) in a four week period of 152 hours to be worked as 19 shifts of eight hours each, 
subject to practicality.

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

[953] The span of hours for day workers (i.e. non shiftworkers) is set out in clause 25.2(a):

‘(a) Day worker

The ordinary hours of work for a day worker will be worked between 6.00 am and 8.00 pm 
Monday to Sunday.’

[954] Clause 28.1 provides that full-time employees are entitled to be paid at overtime rates 
for ‘all work done in addition to their rostered ordinary hours on any day’. It is clear from 
clause 25.1(b) that full-time employees may, by agreement, work up to 10 ordinary hours per 
shift. 

[955] The short point is that full-time employees may agree to work up to 10 hours per shift 
and those hours will be regarded as ordinary hours and will not be paid at overtime rates, 
provided such work is performed between 6.00 am and 8.00 pm Monday to Sunday. As set 
out at [556]our provisional view is that hours worked outside this span would be subject to 
payment at overtime rates. We now turn to the provisions which apply to part-time 
employees.

[956] Before commencing employment, the employer and part-time employee are required 
to enter into an agreement in writing on:

(i) a regular pattern of work including the number of hours to be worked each 
week; and 

(ii) the days of the week the employee will work and the starting and finishing 
times each day (clause 10.3(c)). 

[957] This agreement may subsequently be varied by agreement in writing and any such 
agreement may be ongoing or for a specified period of time (clause 10.3(e)).

[958] Further, as we have mentioned, clause 28.1(b)(iii) allows for part-time employees to 
work additional hours (up to a total of 10 in a day or 38 in a week or 76 in a fortnight) without 
the payment of any overtime penalty rate. And, as NDS submits, the existing 10 hour daily 
threshold for overtime for employees (clause 28.1(b)(ii)) mirrors the maximum span available 
to full-time employees (clause 25.1(b)).716

[959] It is clear that part-time employees may agree to work up to 10 hours per shift and that 
such a shift will be regarded as ordinary hours and will not be paid at overtime rates, subject 

                                               

716 NDS Submission, 7 February 2020 at para 22.






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to that shift being within the same spread of hours applicable to full-time employees. The 
same applies to full-time employees – they too may agree to work up to 10 hours per shift and 
those hours are regarded as ordinary hours. A part-time employee may also agree before 
commencing employment to work a 10 hour shift as part of a regular pattern of work (see 
clause 10.3(c)), or by a variation to that initial agreement (see clause 10.3(e)).

[960] It follows that, contrary to the HSU’s contention, there is no inconsistency, as between 
full-time and part-time employees – in each case the employees’ agreement is required before 
they can be rostered on a 10 hour shift paid at ordinary time rates. Where part-time employees 
accept additional hours such that they work a 10 hour shift, they do not suffer any greater 
disutility than a full-time worker working the same hours.

[961] As to the HSU’s other merit arguments, set out at [922] above, we note that 
proposition 3 is dependent on findings made on the evidence and that proposition 4 is 
illogical. 

[962] The evidence does not provide a sufficiently cogent basis for the variation proposed. 
While aspects of the work performed by employees covered by the SCHADS Award can be 
physically and mentally taxing that fact does not, of itself warrant the variation proposed. In 
reaching that conclusion we have had regard to the Award provisions which deal with breaks 
and that s.62 of the Act directly addresses the adverse consequences associated with working 
excessive hours by providing a right to refuse to work unreasonable hours.

[963] The essence of proposition 4 is that we should amend clause 28.1(b)(ii) so that part-
time employees are paid at overtime rates for all time worked in excess of 8 hours per day 
because ‘the Award already provides considerable flexibility for employers by providing for 
all hours of part-time employees up to 38 hours in the course of a week or 76 hours in the 
course of a fortnight to be paid at single time’. The argument is disingenuous because the 
second part of the HSU’s claim seeks to remove the very flexibility it relies on in support of 
the first part of its claim. We deal below with the HSU’s structural incentive argument.

[964] We reject this aspect of the HSU’s claim. We are not persuaded that the variation 
proposed is necessary to ensure that the SCHADS Award achieves the modern awards 
objective. We now turn to the second aspect of the HSU’s claim which seeks to remove 
flexibility afforded by clause 28.1(b)(iii). 

[965] The HSU also contends that the absence of any penalty associated with the 
performance of work beyond a part-time employee’s guaranteed hours ‘creates a structural 
incentive to underestimate the hours of work required of a part-time employee at the time of 
engagement and/or rostering, and to utilise part-time workers like a pool of casual 
employees.’

[966] We accept the proposition that the current overtime provisions in respect of part-time 
employees provide an incentive for employers to minimise the guaranteed minimum hours to 
be worked by a part-time employee (i.e. under clause 10.3(c)(i)). It seems to us that the 
central issue in contention is whether the solution proposed by the HSU – the removal of the 
flexibility afforded by clause 28.1(b)(iii) – is necessary to ensure that the SCHADS Award 
achieves the modern awards objective. For the reasons which follow we are not satisfied that 
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[967] The premise of the HSU’s claim is that the removal of the ‘structural incentive’ will 
result in part-time employees being provided with greater guaranteed hours. There is a certain 
logic to this proposition but whether it is realised depends on the extent to which work 
demands fluctuate and the risk aversion of each employer. From a practical perspective, the 
regular pattern of hours agreed in clause 10.3(c) is likely to be hours which the employer can 
reasonably predict will be needed on an ongoing basis.  It would be reasonable for employers 
to be cautious in their predictions of hours of work that can be offered as a regular pattern of 
work on a permanent basis, particularly in the circumstances that NDIS service fees are paid 
to the service provider on delivery of the service (rather than on service-booking).

[968] In response to this aspect of the HSU’s claim the employers submit that the imposition 
of overtime rates in circumstances where part-time employees work additional hours would:

 act as a deterrent to employers offering additional hours to part-time employees,
and

 likely result in employers employing fewer part-time employees (in favour of either 
full-time employees or casual employees).

[969] The employers rely on the evidence of a few witnesses in support of these 
propositions.717

[970] The Unions criticised this evidence on the basis that it was vague and uncertain.718 We 
accept that there is some substance to this criticism. But, of necessity, evidence as to the likely 
consequences of a particular regulatory change will often be speculative. Despite the 
limitations in the evidence we accept that the variation proposed by the HSU is likely to 
change the organisation of work in the industry and that the imposition of overtime rates will 
act as a deterrent to employers offering additional hours to part-time employees. At least in 
the short term, a variation in the terms proposed by the HSU may result in additional hours 
being worked by casual employees; as the relative cost premium will be less; albeit this would 
result in substantial additional employment costs.

[971] Granting this aspect of the HSU’s claim would remove a flexibility from the SCHADS 
Award which the Commission has acknowledged is calibrated to meet industry needs. As 
noted by the Part-time and Casual Employment Full Bench, the current Award terms provide
‘considerable capacity to assign additional hours that may arise at short notice to employees 
without the cost exceeding what the NDIA price structure will allow’.719 Significantly, under 
the NDIS an employer cannot recover the overtime cost of a part-time employee’s additional 
hours.720

                                               

717 For example, Exhibit ABI9 – Witness Statement of Joyce Wang, 12 July 2019 at para 49; Exhibit ABI8 – Witness 
Statement of Wendy Mason, 17 July 2019 at para 53; Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 

at para 37; Exhibit HSU28 - Witness Statement of Thelma Thames, 15 February 2019 at para 9; Exhibit UV1 – Witness 

Statement of Trish Stewart, 17 January 2019 at para 11; Transcript, 17 October 2019 at PN2659, PN2663-PN2664.
718 Joint union submission, 10 February 2020 at para 19.
719 Part-time and Casual Employment Case at [637].
720 NDIS Price Guide 2019-20, 1 July 2019, CB2796.






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[972] The evidence is that many part-time employees want to (and do) work additional hours 
and there is no evidence to suggest that part-time employees are being forced to work 
additional hours. These findings are relevant because granting the claim will create a 
disincentive for employers to make additional hours available to part-time employees (as 
opposed to casual employees). 

[973] In our view the HSU has failed to advance a sufficiently cogent case for the change 
sought. We reject this aspect of the HSU’s claim. That said, we accept that the current part-
time overtime provisions create a structural incentive for employers to set the guaranteed 
hours offered to part-time employees at the time of engagement, at artificially low levels. The 
evidence clearly establishes that employers regularly offer part-time employees work in 
excess of their guaranteed hours. But we are not persuaded that the solution proposed by the 
HSU is appropriate. What then is to be done?

[974] As mentioned earlier, ABI is opposed to the proposed introduction of additional 
overtime entitlements for part-time employees when working agreed additional hours or when 
working more than 8 hours a day. However, ABI submitted that it is not opposed to a 
variation that would provide a mechanism for reviewing and adjusting a part-time employee’s 
hours of work where they are regularly working more than their guaranteed minimum number 
of hours:

‘To the extent that the Commission forms the view that the Award contains any ‘structural 
incentive’ to set part-time employees’ hours of work at artificially low levels, one approach to 
addressing that issue might be to introduce a mechanism for reviewing employees’ hours upon 
request and adjusting their guaranteed hours to a more realistic reflection of their actual 
working patterns, subject to an ability for employers to refuse on reasonable business 
grounds.’721

[975] ABI observed that the proposed approach has been adopted in the context of enterprise 
bargaining in this sector and drew our attention to a number of enterprise agreements in the 
aged care and home care sector that contain a clause in the following form (or similar):722

Review of part time hours

(a) At the request of an employee, the hours worked by the employee will be reviewed 
annually. Where the employee is regularly working more than their guaranteed minimum 
number of hours then such hours shall be adjusted by the employer, and recorded in writing to 
reflect the hours regularly worked.

(i) The hours worked in the following circumstances will not be incorporated in the 
adjustment:

A. If the increase in hours is as a direct result of an employee being absent on 
leave, such as for example, annual leave, long service leave, parental leave, 
workers compensation; and

                                               

721 ABI Submission, 12 July 2019 at 8.26.
722 For example: The Presbyterian Aged Care, NSWNMA and HSU NSW Enterprise Agreement 2017-2020; BaptistCare 
NSW & ACT Aged Care Enterprise Agreement 2017; McLean Care Ltd (NSW), NSWNMA and HSU NSW Enterprise 
Agreement 2017-2020; The Lutheran Aged Care Albury NSWNMA and HSU NSW Enterprise Agreement 2017-2020; 
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B. if the increase in hours is due to a temporary increase in hours, for example, 
due to the specific needs of a resident or client.

(ii) In addition to those matters covered in sub-clause x.x(a)(i) changes to hours for 
Home Care employees may be affected by:

A. continuity of funding;

B. client numbers; and

C. client preferences for services including their ability to choose particular care 
workers.

(iii) The employer will not unreasonably refuse to change the hours of a Home Care 
employee based on the circumstances in subclause x.x(a)(ii) unless there is an 
imminent change to any of those circumstances.

[976] The above mechanism provides an opportunity for employees who regularly work in 
excess of their contracted hours to request that their hours be reviewed and increased on an 
annual basis, and employers cannot unreasonably refuse such a request.

[977] ABI submits that such an approach would satisfactorily address the concerns raised by 
the HSU. We agree.

[978] Terms of the type identified by ABI are a common feature of enterprise agreements 
operating in the sectors covered by the SCHADS Awards.

[979] An Information Note prepared by the Commission’s research section has been 
published alongside this decision.723 The Information Note reviewed the part-time clauses in 
health sector enterprise agreements approved between 1 January 2019 and 31 March 2021. 
Relevantly the review found:

 731 health sector agreements were approved between 1 January 2019 and 31 March 
2021

 the SCHADS Award was the relevant award for the purposes of the BOOT in 142
of these health sector agreements, and

 37 of the 142 SCHADS agreements contained a ‘review of part time hours’ clause.

[980] In the Information Note a ‘review of part time hours clause’ refers to a term of an 
enterprise agreement that provides a mechanism for part-time employees to request that their 
guaranteed minimum hours be reviewed and adjusted to reflect their actual working pattern on 
a regular basis.

[981] Attachment A to the Information Note sets out extracts of the ‘review of part-time 
hours clause’ in the 37 SCHADS agreements approved between 1 January 2019 and 31 March 
2021 that contain such a clause. 

                                               

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[982] The prevalence of these provisions implies an acknowledgement of their utility and 
may inform the structure of an appropriate award term. We note that in formulating the model 
cashing out of annual leave term the Commission had regard to the extent and form of such 
provisions in enterprise agreements.724 The prevalence of such terms in enterprise agreements 
demonstrated that there was some demand for provisions of that type and served to illustrate 
the range of safeguards which may be appropriate.725

[983] We are, of course, conscious of the need for caution when referring to the terms of 
enterprise agreements in the context of a review of modern awards. The legislative context is 
quite different. Enterprise agreements are negotiated by the parties and approved by the 
Commission against various statutory criteria. A different legislative context applies to the 
review of modern awards. As the Full Bench observed in the Modern Awards Review 2012 –
Penalty Rates decision:

‘The approach adopted in enterprise agreements and preserved enterprise awards are relevant 
considerations in this Transitional Review, however we also note that care should be exercised 
when assessing that material in the context of reviewing the modern award safety net. 
Enterprise agreements are negotiated by parties and approved by the Commission against 
various statutory criteria. These include the better off overall test in s.193. However many of 
the instruments being referred to in these proceedings are based on safety net instruments other 
than the relevant modern awards. Further, and in any event, in approving agreements the 
Commission is not making an assessment as to whether the instrument meets the modern 
awards objective or would be appropriate in circumstances other than those applying at the 
enterprise concerned.’726

[984] We also note that similar mechanisms are provided in the Hospitality Industry 
(General) Award 2020 (Hospitality Award) and the Restaurant Industry Award 2020
(Restaurant Award). The general scheme in each of those awards is that: 

1. At the time of engagement the employer and part-time employee must reach an 
agreement in writing about:

(a) the number of hours of work which is guaranteed to be provided and 
paid to the employee each week or, where the employer operates a 
roster, the number of hours of work which is guaranteed to be provided 
and paid to the employee over the roster cycle (the guaranteed hours);
and

(b) the days of the week on which, and the hours on those days during 
which, the employee is available to work the guaranteed hours (the 
employee’s availability).

2. Any change to a part-time employee’s guaranteed hours may only be made 
with the written consent of the employee, and the employer may roster a part-

                                               

724 4 yearly review of modern awards – Annual leave [2015] FWCFB 3406.
725 4 yearly review of modern awards – Annual leave [2015] FWCFB 3406 at [242] – [267].
726 [2013] FWCFB 1635 at [229].






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time employee to work their guaranteed hours and any additional hours, subject 
to a number of limitations. In particular, a part-time employee:

(a) must not be rostered to work any hours outside the employee’s 
availability; and

(b) the employee must not be rostered to work in excess of 11.5 hours or 
fewer than 3 hours in a day; and

(c) must have 2 days off each week.

3. A part-time employee is entitled to overtime rates for work in excess of 38 
hours per week; or 11.5 hours in a day; or the employee’s rostered hours.

4. In other words, part-time employees are paid at ordinary time rates of pay for 
their guaranteed hours and for additional hours rostered within the employees’ 
availability.

[985] Clauses 10.8 – 10.10 of the Restaurant Award provide a right to request an increase in 
guaranteed hours, as follows:

‘10.8 If a part-time employee has regularly worked a number of ordinary hours in excess of 
their guaranteed hours for at least 12 months, then they may request in writing that the 
employer agree to increase their guaranteed hours.

10.9 If the employer agrees to a request under clause 10.8, then the employer and the part-time 
employee must vary the agreement made under clause 10.4 to reflect the employee’s new 
guaranteed hours. The variation must be recorded in writing before it occurs.

10.10 The employer may only refuse a request under clause 10.8 on reasonable business 
grounds. The employer must notify the part-time employee in writing of a refusal and the 
grounds for it.’

[986] Clauses 10.8 – 10.10 of the Hospitality Award are in the same terms.

[987] Having reviewed the part-time employment terms in the SCHADS Award and having 
regard to the evidence and submissions, it is our provisional view that the Award be varied in 
2 respects:

(i) to make it clear that working additional hours is voluntary; and

(ii) to introduce a mechanism whereby a part-time employee who regularly works 
additional hours may request that their guaranteed hours be reviewed and 
increased, and their employer cannot unreasonably refuse such a request.








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8 24-HOUR-CARE CLAIM

8.1 BACKGROUND

A The claim

[988] The UWU and the HSU seek to delete clause 25.8 which provides: 

‘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.’

[989] The Unions also seek a consequential amendment to clause 25.7(a). The UWU seeks 
to amend the clause as follows:727

‘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.’

[990] The HSU seeks to amend the clause 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 
25.9.728

[991] The Unions’ submissions are set out in the September 2019 Decision729 and need not 
be repeated here. In summary, the submissions advanced in support of the deletion of 
clause 25.8 are:

 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

                                               

727 UWU Draft determination, 7 November 2018.
728 HSU Draft determination, 9 November 2018.
729 September 2019 Decision at [86] – [95].






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 the clause is rarely used

 the entire engagement is ‘work’ and should be remunerated as such

 the clause does not adequately compensate employees, or provide 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.

[992] ABI, NDS and AFEI oppose the claims to delete clause 25.8 and the consequential 
amendment to clause 25.7.

[993] During its submissions, ABI observed that there may be a lack of clarity in respect of 
some aspects of the operation of the current clause, in particular: 

 the clause is silent as to what happens when an employee is required to work more 
than 8 hours of work

 there is a lack of certainty about the hours of work of an employee, and

 the clause is unclear regarding aspects relating to sleeping.730

[994] 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. It also 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 8 
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. 

[995] During oral argument Mr Scott, on behalf of ABI, indicated that his clients would not 
oppose the following amendments to the 24-hour-care clause:731

 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 paid in accordance with clause 28

                                               

730 ABI Submission, 5 April 2019 at 6.22 – 6.30.
731 Transcript, 17 April 2019 at PN1997-PN2000.






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 an amendment to the effect that a broken shift can only be worked by agreement 
with the employee, and

 an amendment to clause 31.2 to make it clear that employees who regularly work 
24-hour-care shifts receive an additional week’s leave.

[996] The NDS opposed the deletion of the 24-hour-care provision and submitted that the 
ambiguity in the clause may be addressed by an amendment that: 

 the 55% loading is payment for any additional work required of up to 2 hours, and

 overtime be payable for all work performed beyond that amount.732

[997] NDS contended 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.

[998] The submissions and witness evidence relevant to the 24-hour-care claim is set out at 
Attachment L. 

B The September 2019 Decision

[999] In the September 2019 Decision we rejected the HSU’s contention that the 24-hour-
care clause is ‘rarely used’ and found that 24-hour-care shifts are used in the industry and, 
further, that while only a minority of employers used the 24-hour-care clause, those who do 
use the clause do so regularly. Given the history and current utilisation of the 24-hour-care 
clause we expressed the view that it was appropriate that we adopt a cautious approach to the 
claim that the clause be deleted.733

[1000] In the September 2019 Decision we went on to express the provisional view that the 
clause be retained but noted that the existing clause did not provide a fair and relevant 
minimum safety net and that it required amendment:

‘[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.’734

[1001] We then set out the following process to address the issues raised:735

1. The interested parties were to confer with respect to the amendments to be 
made to the clause to ensure that it achieves the modern awards objective.

                                               

732 NDS Submission, 5 April 2019 at para 26.
733 September 2019 Decision at [102].
734 September 2019 Decision at [103].
735 [2019] FWCFB 6067 at [105].






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2. The discussions between the parties were to be facilitated by Commissioner 
Lee and a conference convened for that purpose.

3. Arising out of the discussions and conferences a Joint Report would be 
prepared setting out the extent of agreement and any remaining matters in 
dispute (and noting that in the event that the parties were unable to reach a 
substantial measure of agreement we would revisit our provisional view 
regarding the proposed deletion of the term).

4. Interested parties were to be given an opportunity to make submissions in 
relation to the Joint Report and in support of their preferred position.

5. We would list the matter for further oral hearing, if we decided that it was the 
appropriate course.

[1002] Conferences were held on 28 October and 7 November 2019 to discuss the 
amendments required to ensure that the 24-hour-care clause achieves the modern awards 
objective. Commissioner Lee published a Draft Report on 14 November 2019 and a Report on 
3 December 2019. The Report sets out the positions of the parties.

[1003] The Report identifies 4 areas of apparent agreement in respect of the ABI and Unions’
draft clauses:

 the Unions indicate that clause 25.8(a) of the ABI preferred draft reflects the terms 
of the current Award provision and do not propose any amendment to this clause

 the Unions agree that it is appropriate that a 24-hour-care shift should only be 
worked by agreement as per 25.8(b) of ABI’s preferred draft

 the Unions indicate that clause 31.2(a) of the ABI preferred draft reflects the terms 
of the current Award provision and do not propose any amendment to this clause,
and

 the Unions agree that employees who regularly work 24-hour-care shifts should be 
classified as a shift worker for the purposes of the NES. For clarity, the Unions 
propose that ‘regularly’ is defined within sub-clause 31.2(b): 

‘For the purposes of this sub clause, an employee will regularly work 24 hour care 
shifts if the employee works four or more 24 hour care shifts during the yearly period 
in respect of which their annual leave accrues’

[1004] Directions were then issued on 5 December 2019 requiring (among other things) that 
interested parties file submissions in support of the parties’ preferred position on changes to 
the 24-hour-care clause as set out in the Report of 3 December 2019.

[1005] The submissions filed in February 2020 (see [26] and [27] above) addressed the ABI 
and Union proposals.






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8.2 CONSIDERATION

[1006] We begin our consideration of the parties’ respective submissions by returning to our 
provisional view that a 24-hour-care clause be retained, albeit in an amended form. In a joint 
submission the ASU, HSU and UWU submitted, for the same reasons as were advanced in 
their earlier Tranche 1 submissions, that we should:

‘consider phasing the clause out of the Award over the course of 3 years. That will allow 
sufficient time for that cohort of employers who utilize the clause to make alternative 
arrangements, such as by engaging in enterprise bargaining for appropriate terms and 
conditions to cover such work patterns.’736

[1007] In the event the clause was to remain in the Award the Unions proposed a series of 
amendments which are set out in the draft determination at Attachment A to their submission 
and described at paragraphs [293] – [311] of that submission. We return to the Unions’ 
proposed amendments later.

[1008] As mentioned earlier, the Unions’ submissions in support of the deletion of the 24-
hour-care clause are set out in the September 2019 Decision and are summarised at [999] 
above. As we said in the September 2019 Decision we reject the HSU’s contention that the 
24-hour-care clause is ‘rarely used’. The results of a survey of the members of the employer 
organisations (the Survey) in these proceedings show that around 1 in 10 enterprises (11.2%) 
which responded to the Survey used 24-hour shifts between 1 March 2018 and 1 March 2019. 
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.’737

[1009] In the Tranche 1 proceedings the UWU and ASU contended that the Survey was 
‘methodologically flawed principally because of the manner in which the sample was 
constructed’.738 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.

[1010] We dealt with that submission in the September 2019 Decision:

‘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.

                                               

736 Joint Union Submission, 10 February 2020 at para 291.
737 AFEI Submission, 3 July 2019 at para 11.
738 Transcript, 16 July 2019 at PN18. 






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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.’739

[1011] In the September 2019 Decision we found that 24-hour-care shifts are used in the 
industry and, while only a minority of employers used the 24-hour-care clause, those who do 
utilise the clause do so regularly. 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.740 So, while not every employer uses the clause, 
those who do utilise 24-hour shifts do so regularly. 

[1012] We have not been persuaded to depart from our provisional view. The Survey results 
indicate 24-hour-care shifts are used in the home sector. As NDS submits, the retention of a 
24-hour-care provision, albeit with appropriate amendment, is preferable to the deletion of a 
provision which facilitates a type of support that is of value to aged and disabled people in 
certain circumstances. 

[1013] We confirm our provisional view that the 24-hour-care provision be retained, but that 
the existing clause requires amendment. We now turn to consider the amendments required. 
We turn first to ABI’s proposal.

[1014] ABI advanced a proposed variation to clauses 25.8 and 31.2 of the Award which aim 
to rectify the deficiencies with the current clause which were identified in the September 2019 
Decision. ABI’s proposed variations are set out at [179] of its 10 February 2020 submission, 
as amended by its submission of 11 March 2020 (at [64] – [65]) in response to our 
Statement741 of 4 March 2020. ABI proposes that clauses 25.8 and 31.2 be deleted and 
replaced with:

’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) An employer may only require an employee to work a 24 hour care shift by 
agreement.

(c) The employee will normally have the opportunity to sleep during a 24 hour care shift 
and, employees will be provided with a separate room with a bed, use of appropriate
facilities (including staff facilities where these exist), and free board and lodging for 
each night when the employee sleeps over.

(d) The employee engaged will be paid eight hours work at 155% of their appropriate rate 
for each 24 hour period.

                                               

739 September 2019 Decision at [33] – [34].
740 AM2018/26, Survey – SCHADS Award, 2019, Question 14. 
741 [2020] FWCFB 1185.






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(e) If the employee is required to perform more than eight hours’ work during a 24 hour 
care shift, that work shall be treated as overtime and 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. An employer and employee may utilise the TOIL arrangement in 
accordance with clause 28.2.

(f) An employee may refuse to work more than 8 hours’ work during a 24 hour care shift 
in circumstances where the requirement to work those additional hours is 
unreasonable.

31.2 Quantum of leave

For the purpose of the NES, a shiftworker is:

(a) an employee who works for more than four ordinary hours on 10 or more weekends 
during the yearly period in respect of which their annual leave accrues; or

(b) an employee who regularly works 24 hour care shifts in accordance with clause 25.8; 

and is entitled to an additional week’s annual leave on the same terms and conditions.’

[1015] In Part D of its submission of 10 February 2020, ABI summarises the key aspects of 
its proposal, as follows:742

1. The inclusion of a requirement that employers may only require an employee 
to work a 24 hour care shift by agreement. This will have the effect of 
prohibiting an employer from rostering an employee for a 24 hour care shift 
unless that employee has specifically agreed to work 24 hour care shifts. It is 
acknowledged that 24 hour care shifts are a nonstandard type of shift, and so it 
is appropriate that employees have the ability to opt-out of working such shifts.

2. An amendment to clause 25.8(b) to remove the words ‘where appropriate’, and 
to bolster the type of facilities that are required to be provided to employees 
when working 24 hour care shifts. It is proposed that the wording from clause 
25.7(c) be adopted so that employers are required to provide employees with: 

‘a separate room with a bed, use of appropriate facilities (including staff facilities 
where these exist) and free board and lodging for each night when the employee sleeps 
over.’ 

The removal of the words ‘where appropriate’ has the effect of ensuring that all 
employees are provided with appropriate sleeping facilities when undertaking 
24 hour care shifts. In other words, we acknowledge that it will always be 
appropriate to provide such facilities.

ABI submits that the facilities outlined in its proposal are an appropriate 
minimum standard. While it will often be the case that employees will be 

                                               

742 ABI Submission, 10 February 2020 at paras 182 – 191.






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provided with additional facilities, we do not consider that a more formulaic or 
prescriptive entitlement is appropriate in the context of a minimum legislated 
standard applying across the industry nationally.

3. The inclusion of a new clause 25.8(e) to make it clear that where an employee 
is required to perform more than 8 hours’ work, that work will be treated as 
overtime and paid in accordance with the overtime provision at clause 28.1. 
This rectifies the existing uncertainty about what happens when an employee 
performs more than 8 hours’ work during a 24 hour care shift. ABI submits 
that it is appropriate that such additional work be classed as overtime, given 
that it exceeds the contemplated number of hours of work for the shift.

ABI submits that this proposal is broadly consistent with the existing overtime 
provisions for full-time, part-time and casual employees under clauses 28.1(a) 
and (b), save that the overtime rate is triggered where work is performed in 
excess of 8 hours for casual and part-time employees, rather than 10 hours as 
specified in clause 28.1(b)(ii).

4. The inclusion of a mechanism for an employer and employee to agree to utilise 
the existing TOIL arrangements under clause 28.2 where an employee works in 
excess of 8 hours during a 24 hour care shift. ABI submits that this an 
appropriate inclusion given that the existing Award allows for TOIL 
arrangements to be entered into where overtime entitlements are triggered.

5. The inclusion of a new clause 25.8(f) to provide that employee may refuse to 
work more than 8 hours were the requirement to do so is unreasonable.

[1016] ABI also notes that in the September 2019 Decision we expressed the view that, given 
the ‘history and the current utilisation of the 24-hour-care clause’, it is ‘appropriate to adopt a 
cautious approach’. ABI submits that its proposal reflects a cautious approach and rectifies 
the deficiencies identified by the Commission in relation to the existing 24-hour-care clause, 
but does not propose any further significant alteration to the existing clause.

[1017] ABI contends that there is no evidentiary or merit basis for any further material 
amendment to the provision.

[1018] AFEI submitted a draft clause concerning the 24-hour provision as part of the 
Conference proceedings before Commissioner Lee, as shown in Annexure A to 
Commissioner Lee’s Report. The differences between the AFEI and ABI draft clauses were 
also noted in the Commissioner’s Report. 

[1019] AFEI subsequently withdrew its objections to clause (f) of the ABI draft, concerning 
working ‘additional hours’ but remained opposed to ABI’s proposal to extend the additional 
annual leave entitlement to employees who regularly work 24-hour shifts, where employees 
would not otherwise meet the threshold set out in clause 31.2(a).743

                                               

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[1020] We have considered the differences between AFEI’s position and ABI’s preferred 
draft as set out in Commissioner Lee’s Reports, but are not persuaded to make the alterations 
proposed by AFEI.

[1021] NDS supports the draft clause proposed by ABI and submits that it addresses the 
issues identified in the September 2019 Decision and, in addition, submitted that new clause 
25.8(b) provides additional protection for employees by requiring that a 24-hour-care shift 
may only be worked by agreement with the employee and that clause 31.2, regarding quantum 
of leave, provides an additional benefit for employees who regularly work 24-hour-care 
shifts.744

[1022] NDS submits that the ABI draft clause 31.2(b) needs to be amended to clarify the 
meaning of ‘regular’. NDS proposes the amendment read:745

‘31.2(b) an employee who works 24 hour care shifts in accordance with clause 25.8 on 10 or 
more weekends during the yearly period in respect of which their annual leave accrues.’

[1023] In Background Paper 3 we invited the other parties to indicate whether they supported 
or opposed NDS’ proposal to clarify the meaning of ‘regular’.

[1024] The Unions responded to the question posed in Background Paper 3 by opposing the 
NDS proposal and instead proposed that clause 31.2 provide for an additional week of leave 
after just 4 such shifts in a year. The Unions advance the following submission in support of 
their proposal: 

‘A 24 hour care shift has greater disutility for employees than the performance of shift work on 
weekends. Under the Award, weekend work is subject to a maximum span of 8 hours (or 10 
hours by agreement, or for part time and casual employees), with overtime payable for hours 
worked beyond that. This means that employees will have time to sleep, rest and recover in 
their own home between shifts. Weekend work is also subject  to the provision that employees 
should receive meal and rest breaks during the shift. 

Under the current Award, an employee will only ‘normally’ have an opportunity to sleep. 
There are no penalties for circumstances when an employee is continuously woken up during 
sleep to attend to the client, or is required to perform work at intervals which prevent the 
employee having an uninterrupted appropriate period of sleep. There is also no requirement 
for the employee to be provided with breaks during the shift, or during the periods when 
“work” (as contemplated in the clause) is being performed. 

Even if these matters were addressed, an employee working a 24 hour care shift faces a higher 
level of disutility because they must be away from family, friends and their own personal 
obligations for a period of 24 hours. This is a significant period of time in which to be 
performing work. 

It is appropriate that ‘regular’ be defined as the HSU and the UWU have advanced, that is, as 
the performance of 4 or more 24 hour care shifts across an year.’746

                                               

744 NDS Submission, 7 February 2020 at para 43 – 44.
745 NDS Submission, 7 February 2020 at para 46. 
746 Joint Union Submission, 10 March 2020 at paras 81 – 84.






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[1025] ABI responded that it did not consider it necessary to clarify the meaning of ‘regular’ 
on the basis that:

‘This phraseology is a common feature of the modern awards system in respect of the definition 
of ‘shiftworker’ for the purposes of the entitlement to an additional week’s annual leave. The 
phrase exists in a number of modern awards and has done so without any obvious issue since 
2010.’747 (footnote omitted)

[1026] However, if the Commission was minded to include a definition, ABI suggested the 
language in what is now clause 22.1(b) of the Supported Employment Services Award 2020, 
which prescribes that the term ‘regularly rostered’ means ‘that is, not less than 10 in any 12 
month period’.

[1027] In its response AFEI remained opposed to ABI’s proposal to extend the additional 
annual leave entitlement to employees who regularly work 24-hour shifts and, for that reason, 
it opposed the NDS proposal.

[1028] It is convenient to deal with this issue here, as the Unions’ proposed clause also 
includes the provision of an additional weeks’ annual leave for employees who regularly work 
24-hour-care shifts. The difference between the Unions’ proposal and that advanced by ABI 
(and supported by NDS) is the number of 24-hour-care shifts required to be worked in a 12 
month period in order to qualify for the additional weeks’ annual leave. As we have 
mentioned, AFEI opposes any extension of the additional annual leave entitlement to 
employees who regularly work 24-hour shifts.

[1029] Contrary to AFEI’s submission we are satisfied that the provision of such an 
entitlement is appropriate. A 24-hour-care shift entails significant disutility. An employee 
working such a shift is required to be away from their family and friends for a period of 24 
hours – significantly longer than an ordinary working day. Such employees should receive an 
additional annual leave entitlement in circumstances where they ‘regularly’ work 24-hour-
care shifts. Further, contrary to ABI’s submission, we are of the view that it is appropriate to 
clarify the meaning of ‘regular’ in this context. Clause 31.2(a) already provides such 
clarification and it is appropriate that it also be clarified in clause 31.2(b), to provide 
employers and employees with certainty, and to avoid potential disputation.

[1030] As we have mentioned, ABI proposes that the term ‘regularly works’ in proposed 
clause 31.2(b) be defined to mean not less than ten 24-hour-care shifts in any 12 month 
period. The Unions contend that ‘regularly works’ should be defined to mean four 24-hour-
care shifts in any 12 month period. 

[1031] The determination of the threshold number of 24-hour-care shifts to access the 
additional one week’s annual leave calls for the exercise of a broad evaluative judgment, 
taking into account all of the elements of ABI’s proposed clause and the disutility associated 
with a 24-hour-care shift. It is not an issue that lends itself to precise quantification.

[1032] In determining the appropriate threshold it is relevant to look at the threshold 
applicable to shiftworkers in clause 31.2(a) and to contrast the disutility of working on 

                                               

747 ABI Submission, 11 March 2020 at para 62.






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weekends versus that associated with 24-hour-care shifts. Clause 31.2(a) provides, in 
conjunction with s.87(1)(b), that employees who work ‘for more than four ordinary hours on 
10 or more weekends’ in a 12 month period are entitled to one additional week’s annual leave.

[1033] In ABI’s draft clause a 24-hour-care shift requires an employee to be available for 
duty in a client’s home for a 24-hour period and to provide up to 8 hours of care during this 
period. It also needs to be borne in mind that employees working a 24-hour-care shift are paid 
for 8 hours work at 155% of their appropriate rate for each 24-hour period. 

[1034] It seems to us that the threshold should be less than the ten 24-hour-care shifts 
proposed by ABI; but more than the 4 shift threshold proposed by the Unions. Balancing the 
various considerations we have decided that the threshold should be eight 24-hour-care shifts 
in any 12 month period which appropriately compensates for the disutility incurred. We now 
turn to the other elements of ABI’s proposed clause and the Unions’ proposal.

[1035] As we have mentioned, in the September 2019 Decision we identified a number of 
deficiencies in the current 24-hour-care shift clause, namely:

 the clause is silent as to what happens when an employee is required to work more 
than 8 hours of work

 there is a lack of certainty about the hours of work of an employee

 the clause is unclear regarding aspects relating to sleeping

 it does not specify that an employee may refuse to work more than 8 hours on a 24-
hour shift, and

 it does not specify that employees are to be provided with a safe and clean place to 
sleep.

[1036] ABI’s proposed clause addresses most of these deficiencies (we return shortly to the 
lack of clarity relating to sleeping). The central issue in contention is whether the manner in 
which the ABI proposed clause has addressed the relevant issue is consistent with the 
establishment of a fair and relevant minimum safety net, as required by s.134 of the Act. The 
Unions contend that ABI’s proposed clause fails to achieve the modern awards objective. The 
Unions’ proposed 24-hour-care clause is in the following terms:748

‘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, and may not be required to 
perform duties outside the scope of the care plan or be unreasonably required to 
provide more than eight hours of care.

                                               

748 Joint Union Submission, 10 February 2020, Attachment A.






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(b) For the purposes of this clause, “care” shall mean the performance of any task that 
assists a client with daily living.

(c) An employer may only require an employee to work a 24 hour care shift by 
agreement.

(d) During a 24 hour care shift, the employee will be afforded the opportunity to sleep for 
a continuous period of eight hours (the “sleep break”) during a 24 hour care shift and 
will be provided with:

(i) a separate and securely lockable room with a peephole or similar in the door, 
a bed and a telephone and internet connection in the room; and

(ii) a bed, bedside lamp and clean linen;

(iii) access to food preparation facilities; and

(iv)      access to appropriate temperature control and

(v) free board and lodging.

(e) The sleep break shall not commence earlier than 10pm and shall not finish later than 
7am. 

(f) An employee required to work a 24 hour care shift will be paid the sleepover 
allowance prescribed by clause 25.7.

(g) In the event that:

(i) the sleep break is interrupted by the client for any reason, whether to deliver 
services specified in the care plan or not; or

(ii) the employee is otherwise required to provide more than eight hours of care; 

the employee shall be paid double time for the period of such interruption or the 
provision of such care, with a minimum payment of one hour, provided that nothing in 
this clause shall be regarded as obliging an employee to perform duties outside the 
scope of the care plan or provide more than eight hours of care where such 
requirement is unreasonable.

(h) In addition to the above, for each 24 hour period, the employee will be paid:

(i) 16 hours at 155% of their appropriate rate and;

(ii) three meal allowance payments prescribed by clause 20.3. 

(i) An employee who regularly works 24 hour care shifts during the yearly period in 
respect of which their annual leave accrues will be deemed to be a shiftworker for the 
purpose of entitlement to annual leave pursuant to the NES.

(j) For each 24 hour care shift, the employee will be treated for all purposes as having 
performed 24 ordinary hours of work. 








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(k) An employee will be allowed, at their election, a break of not less than 10 hours 
between the end of one 24 hour care shift and the start of another period of work.’

[1037] The clause attached to the Union’s submission of 10 February 2020 differs from the 
clause submitted on 13 November 2019 in the following ways: 

(a) Clause 25.8(a) has been amended to add the terms ‘and may not be required to 
perform duties outside the scope of the care plan or be unreasonably required 
to provide more than eight hours of care.’, and

(b) Clause 25.8(g) has been amended to add the terms ‘provided that nothing in 
this clause shall be regarded as obliging an employee to perform duties outside 
the scope of the care plan or provide more than eight hours of care where such 
requirement is unreasonable.’ 

[1038] The various features of the proposed clause are discussed in the Joint Union 
submission dated 10 February 2020 at [293] – [311]. 

[1039] ABI, NDS and AFEI are opposed to the Unions’ proposed variations to the 24-hour-
care clause. ABI submits:

‘The Unions propose such significant changes to the existing 24 hour care clause that it would 
effectively render 24 hour care shifts obsolete. For example, the Unions’ proposal involves 
more than doubling the amount payable to employees when working such shifts. 

There is no warrant for such a radical variation. This is particularly the case in light of the 
Commission’s observation in its 2 September 2019 decision that, given the “history and the 
current utilisation of the 24 hour care clause”, it is “appropriate to adopt a cautious approach”.

The Unions’ proposal would have significant deleterious impacts on the provision of 
important care to vulnerable members of the community in their home. It will inhibit the 
ability of organisations to provide continuity of care, and impact the amount of care that could 
be provided to consumers within their allocated budgets. It would also likely have the effect of 
preventing employees who prefer to work 24 hour care shifts from being able to earn a 
reasonable amount of money in a single block of time, leading to a further fragmentation of 
working hours in the sector.’749

[1040] Similarly, AFEI opposes the Unions’ proposed clause on the basis that it would:

‘undermine the operation of the provision to the point where it would be unworkable, through 
the unjustifiable and exorbitant additional costs associated with clauses f, g, h, i, j and k. The 
claims would also impose unnecessary and unwarranted restrictions on the manner in which 
the care is provided, to the detriment of the care recipient, such as in clauses e, and potentially 
unjustifiable hardship for the care recipient in clause d.’750

[1041] We now turn to address the main differences between the ABI and Unions’ proposals.

                                               

749 ABI Submission, 26 February 2020 at paras 96 – 98.
750 AFEI Submission, 11 February 2020 at paras 3 - 4.






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‘Unpaid hours of work’ 

[1042] The Unions submit that the ‘most significant deficiency’ with the current 24-hour-care 
clause is that it does not remunerate employees for ‘the whole time’ they are required to be 
present at a workplace. In essence the Unions contend that all time that an employee is at a 
client’s home and available for duty is ‘work’ and should be paid as such. Proposed clause 
25.8(j) gives effect to this position.

[1043] We disagree with the position advanced by the Unions. We agree with ABI, that at a 
conceptual level, there is no difference between the 24-hour-care clause and clause 25.7 of the 
Award which regulates sleepovers. Under clause 25.7, an employee may be required to sleep 
overnight at premises where the client for whom the employee is responsible is located. 
However, the sleepover period is not ‘time worked’ but is compensated by way of a sleepover 
allowance. The employee is also entitled to further payment where they are required to 
‘perform work’ during the sleepover period.

[1044] As noted by ABI, the position advanced by the Unions in respect of the 24-hour-care 
clause is difficult to reconcile given their position in respect of the sleepover clause. The 
Unions do not seek to vary the existing sleepover arrangements, save for pursuing a variation 
to the facilities to be provided to employees when working sleepovers. 

[1045] Further, the existing 24-hour-care clause provides for a 155% loading payable on the 8 
hours of working time for each 24-hour-care shift, which is intended to compensate 
employees for the disutility associated with working 24-hour-care shifts. 

[1046] The Unions state at [294] of their submission dated 10 February 2020 that ‘the 
circumstances of an employee working a 24 hour care shift compare unfavourably with a 
worker on call as the worker’s freedom of movement is limited for the entire period of the 24 
hour shift’. However, this assertion is inconsistent with the submissions made by the Unions 
about the ‘remote response’ proposal. In its submission of 19 November 2019, the ASU 
submits that: 

‘Being recalled to work from home does not fully ameliorate the negative impacts of working 
being recalled to work. Dr Muurlink notes that that being on-call at home could be, if anything 
worse than being on-call at other locations, possibly because the presence of family interfered 
with the worker’s ability to implement sleep patterns that would conform with on-call 
requirements.’751

[1047] As ABI puts it, ‘the Unions cannot have it both ways’.752

[1048] As to the quantum of remuneration proposed under the Unions clause, we are not 
satisfied that it is ‘fair’ to provide that employees are to be paid 16 hour’s pay at 155% of the 
appropriate rate in circumstances where: 

 the employee is only required to perform 8 hours’ work, and 

                                               

751 ASU Submission, 19 November 2019 at para 100.
752 ABI Submission, 26 February 2020 at para 108.






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 the employee is entitled to be paid at double time for any work performed in excess 
of 8 hours (with a minimum payment of one hours’ pay). 

[1049] This aspect of the Unions’ proposal and the proposal that each 24-hour shift is treated 
for all purposes as the performance of 24 ordinary hours of work would impose a substantial, 
and unwarranted, cost on employers.

‘Care work’ 

[1050] At proposed clause 25.8(a) the Unions’ propose that an employee ‘may not be required 
to perform duties outside the scope of the care plan’. In support of this proposal the Unions 
submit that:

‘the proximity of the worker makes it likely they will be requested to perform tasks outside the 
scope of the plan. The definition assists to clarify the scope of duties the worker is obliged to 
perform.’753

[1051] The Unions submission does not refer to any evidence in support of the proposition 
that it is ‘likely’ that employees on 24-hour-care shifts would be asked to perform duties 
outside the scope of the care plan. We are not satisfied that it is necessary to define ‘care’ in 
the manner proposed by the Unions.

Sleep break 

[1052] Clause 25.8(d) of the Unions proposal seeks to address the lack of clarity in the current 
clause regarding sleeping during a 24-hour-care shift, as follows:

‘(d) During a 24 hour care shift, the employee will be afforded the opportunity to sleep for 
a continuous period of eight hours (the “sleep break”) during a 24 hour care shift and will be 
provided with:

(i) a separate and securely lockable room with a peephole or similar in the door, 
a bed and a telephone and internet connection in the room; and

(ii) a bed, bedside lamp and clean linen;

(iii) access to food preparation facilities; and

(iv)      access to appropriate temperature control and

(v) free board and lodging.’

[1053] In its reply submission ABI does not oppose the proposed amendment to the existing 
clause to provide that ‘during a 24-hour-care shift, the employee will be afforded the
opportunity to sleep for a continuous period of eight hours.’

[1054] We agree with ABI, this aspect of the Unions’ proposal is a sensible addition to the 
clause. We will amend ABI’s proposed clause 25.8(c) accordingly.

                                               

753 Joint Union Submission, 10 February 2020 at para 299.






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[1055] The balance of the Unions’ proposed clause at 25.8(d) (see [1036] above) is opposed 
by the employers. In particular, they do not agree with the aspects of the Unions’ proposal 
regarding the facilities to be provided to employees, or the time parameters within which the 
sleep period must occur, or the payment regime where the sleep period is interrupted. 

[1056] In respect of the issue of sleeping facilities the 2 proposals are contrasted in the table 
below.

The Unions ABI
(d) During a 24 hour care shift, the employee 
will be afforded the opportunity to sleep for a 
continuous period of eight hours (the “sleep 
break”) during a 24 hour care shift and will be 
provided with:

(i) a separate and securely lockable room 

with a peephole or similar in the door, a 

bed and a telephone and internet 

connection in the room; and

(ii) a bed, bedside lamp and clean linen;

(iii) access to food preparation facilities; and

(iv)  access to appropriate temperature 

control and

(v) free board and lodging.

(c) The employee will normally have the 
opportunity to sleep during a 24 hour care shift 
and, employees will be provided with a separate 
room with a bed, use of appropriate facilities 
(including staff facilities where these exist), and 
free board and lodging for each night when the 
employee sleeps over.

[1057] We note that the Unions’ proposal appears to assume a level of control over the 
premises at which the 24-hour-care shift takes place. This will not necessarily be the case. The 
employer will not always have the ability (or the legal right) to make the kind of physical 
alterations which the Unions’ proposal may require. The employer will not always own the 
premises at which the shift occurs. The premises may be an individual client’s residence or a 
rented facility. 

[1058] We are satisfied that some amendments should be made to ABI’s proposed clause 
25.8(c), as follows:

‘(c) The employee must will normally have be afforded the opportunity to sleep for a 
continuous period of eight hours during a 24 hour care shift and employees will be provided 
with a separate room with a bed and clean linen, the use of appropriate facilities (including 
access to food preparation facilities and staff facilities where these exist), and free board and 
lodging for each night when the employee sleeps over.’

[1059] We are not persuaded to prescribe the other facilities proposed by the Unions as they 
may require alterations to the client’s home and impose significant costs which are not 
warranted on the basis of the evidence before us.








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[1060] As to the proposed time parameters within which the sleep period must occur (Unions’ 
proposed clause 25.8(e)), there is limited evidence before us as to the specific arrangements 
currently in place in the sector, and accordingly we propose to take a cautious approach to the 
imposition of prescriptive arrangements as to when the sleep period must occur. In our view 
there is no probative evidence such as to warrant the prescription proposed. 

[1061] In relation to the proposed payment regime for where sleep is interrupted, ABI’s 
proposed clause 25.8(e) has the effect of treating such work as overtime. In our view no 
further change is necessary.

Sleepover allowance 

[1062] In its reply submission ABI accepts the apparent logic of employees receiving the 
equivalent of the sleepover allowance under clause 25.7 when working 24-hour-care shifts but 
submits that if a sleepover allowance is introduced, it logically follows that the 155% loading 
should be reduced by the equivalent amount.

[1063] We agree. Clause 25.8 already contains a loading which compensates employees for 
any disutility associated with working 24-hour-care shifts, including the need to be available 
for duty in a client’s home for a 24-hour period; we do not propose to make the change 
proposed by the Unions.

Additional care work 

[1064] The Unions propose that if an employee’s sleep is interrupted or the employee is 
required to provide more than 8 hours of care they shall be paid at double time. 

[1065] We fail to see why employees should receive a payment of double the appropriate rate 
for time in excess of 8 hours spent providing care in circumstances where, under the Unions’ 
proposal, they would already receive 16 hours’ pay at 155% of the appropriate rate. In our 
view the overtime proposal advanced by ABI adequately deals with this issue.

Meal breaks 

[1066] The Unions’ proposed clause 25.8(h)(ii) provides that for each 24-hour period an 
employee is to be paid ‘three meal allowance payments prescribed by clause 20.3’. The 
Unions’ rationale for this proposal is:

‘to compensate for the fact that they are not necessarily able to leave the client’s premises and 
have actual meal breaks’.754

[1067] There is no evidence to support the Unions’ assertion that employees ‘are not 
necessarily able to leave the client premises and have actual meal breaks’. We are not 
persuaded to make the change sought.

                                               

754 Joint Union Submission, 10 February 2020 at para 308.






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Breaks between shifts 

[1068] The Unions’ proposed clause (k) provides:

‘(k) An employee will be allowed, at their election, a break of not less than 10 hours between 
the end of one 24 hour care shift and the start of another period of work.’

[1069] In its reply submission ABI does not oppose this aspect of the Unions’ proposal, but 
goes on to submit that, from a practical perspective, such a provision needs to be accompanied 
by:755

(a) a requirement that the employee provide adequate notice of their election for such a 
rest break, so as to not disrupt an established roster

(b) in the alternative, clause 25.5(d)(ii) will need to be broadened to enable the 
employer to change an established roster in response to employees making such an 
election, and 

(c) in respect of part-time employees, a provision explicitly stating that the 
requirements of clause 10.3(e) do not apply in these circumstances. 

[1070] We agree that an employee should be entitled to a break of not less than 10 hours 
between the end of one 24-hour-care shift and the commencement of another period of work. 
However we are not persuaded that the variation proposed by the Unions is necessary given 
the terms of clause 25.4(a), which states:

‘25.4 Rest breaks between rostered work

(a) An employee will be allowed a break of not less than 10 hours between the end of one shift 
or period of work and the start of another’.

[1071] We propose to vary clauses 25.8 and 31.2 as follows:

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 8 hours of care during this period.

(b) An employer may only require an employee to work a 24-hour care shift by 
agreement.

(c) The employee will be afforded the opportunity to sleep for a continuous period of 
eight hours during a 24-hour care shift and employees will be provided with a separate 
room with a bed and clean linen, the use of appropriate facilities (including access to 

                                               

755 ABI Submission, 26 February 2020 at para 123.






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food preparation facilities and staff facilities where these exist), and free board and 
lodging for each night when the employee sleeps over.

(d) The employee will be paid 8 hours work at 155% of their appropriate rate for each 24-
hour period.

(e) If the employee is required to perform more than 8 hours’ work during a 24-hour care 
shift, that work shall be treated as overtime and paid at the rate of time and a half for 
the first 2 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. An employer and employee may utilise the TOIL arrangement in 
accordance with clause 28.2.

(f) An employee may refuse to work more than 8 hours’ work during a 24 hour care shift 
in circumstances where the requirement to work those additional hours is 
unreasonable.

31.2 Quantum of leave

For the purpose of the NES, a shiftworker is:

(a) an employee who works for more than 4 ordinary hours on 10 or more weekends 
during the yearly period in respect of which their annual leave accrues; or

(b) an employee who works at least eight 24-hour care shifts in accordance with 
clause 25.8; 

and is entitled to an additional week’s annual leave on the same terms and conditions.

[1072] We now turn to deal with the s.134 considerations.

[1073] Section 134(1)(a) requires that we consider the ‘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) of the Act. As 
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). The ‘needs of the low paid’ is a 
consideration which weighs in favour of the variations we propose to make.

[1074] Section 134(1)(b) requires that we consider ‘the need to encourage collective 
bargaining’. It is likely that employee and employer decision-making about whether to 
bargain is influenced by a complex mix of factors, not just the content of the 24-hour-care 
clause. 134(1)(b) speaks of ‘the need to encourage collective bargaining’. We are not 
persuaded that the variations we propose to make would ‘encourage collective bargaining’, it 
follows that this consideration does not provide any support for the proposed variations.

[1075] Section 134(1)(c) of the Act requires that we consider ‘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 on total 
employment is not likely to be significant. We regard this consideration as neutral.

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[1077] Section 134(1)(f) of the Act 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’. 

[1078] If the variations we propose are made then employment costs would increase. This 
consideration tells against the variations proposed. 

[1079] We accept that the variations proposed will increase employment costs and may 
reduce flexibility. These considerations weigh against making the variations proposed.

[1080] Section 134(1)(da) requires that we take into account the ‘need to provide additional 
remuneration’ for, relevantly: 

‘(i) employees working overtime; or …

(ii) employees working unsocial…hours

(iii) employees working shifts; …’

[1081] The proposed variations will provide additional remuneration for working overtime, 
unsocial hours and shifts. This consideration weighs in favour of the variations proposed.

[1082] Section 134(1)(g) requires that we consider, relevantly, the ‘need to ensure a simple, 
easy to understand … modern award system’. The current clause lacks clarity and the 
variations provide clarity. This consideration weighs in favour of the variations proposed.

[1083] 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) of the Act as a neutral 
consideration.

[1084] 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 ss.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 above. We deal with the transitional 
arrangements associated with these variations later in our decision.

9. SLEEPOVER CLAIM

9.1 BACKGROUND

[1085] Clause 25.7(c) currently deals with the facilities to be afforded to an employee 
performing a sleepover shift:

‘(c) The span for a sleepover will be a continuous period of eight hours. Employees will 
be provided with a separate room with a bed, use of appropriate facilities (including 
staff facilities where these exist) and free board and lodging for each night when the 
employee sleeps over.’








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[1086] The HSU submits that clause 25.7(c) is vague and should be amended to ensure that 
appropriate facilities are provided when employees are required to perform a sleepover 
shift.756 The HSU’s claim would result in the following variations to clause 25.7(c):757

‘(c) The span for a sleepover will be a continuous period of eight hours. Employees will be 
provided with: 

(i) a separate and securely lockable room with a peephole or similar in the door, 
with a bed and a telephone connection in the room; and 

(ii) suitable sleeping requirements such as a lamp and clean linen;

(iii) use of appropriate facilities (including staff facilities where these exist); and 

(iv) free board and lodging for each night when the employee sleeps over.’

[1087] Items (i) and (ii) above represent variations to the current award provision.

[1088] The submissions and witness evidence relevant to the sleepover claim are set out at 
Attachment M. 

9.2 SUBMISSIONS

[1089] In support of the proposal the HSU submits:

‘The clause should be amended to ensure appropriate facilities are provided when employees 
are required to perform a sleepover shift. Such shifts are compensated modestly.’758

[1090] The HSU also relies on what it submits is the unchallenged evidence of William 
Elrick759 about how the current provision can operate in practice:

‘the sleepover arrangements in many workplaces aren’t conducive to a good sleep. For a period 
while I was undertaking sleepovers where bed was located in the office. The head of the bed 
was coming out of the cupboard that had the doors removed, the office had hums from the 
computer and fax, along with a bright light from the handset of the house phone. I have had 
reports from other members who have had to sleepover with the sleepover door open, having 
to deal with uncomfortable beds, and various other issues that result in poor sleep.760

[1091] The HSU submits that the circumstances described by Mr Elrick ‘involve a risk to 
personal security and safety and are unlikely to provide an environment for proper rest and 
repose’.761

                                               

756 HSU Submission, 18 November 2019 at paras 48 – 49.
757 HSU Amended Draft Determination, 15 February 2019.
758 HSU Submission, 15 February 2019 at para 73.
759

Exhibit HSU3 – Witness Statement of William Elrick, 14 February 2019.
760 Exhibit HSU3 – Witness Statement of William Elrick, 14 February 2019 at para 27.
761 HSU Submission, 18 November 2019 at para 151.






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[1092] ABI opposes the claim and relies on Part 13 of its reply submission of 12 July 2019 
and its submission of 19 November 2019, in summary: 

 the basis for the variation is unclear - the HSU has failed to articulate why it is that 
they consider the current clause to be deficient

 the current Award refers to providing employees with ‘use of appropriate facilities’ –
which is a sensible formulation as it is sufficiently flexible to apply to a broad range 
of circumstances. What is ‘appropriate’ will vary depending on the circumstances of 
a particular situation. Given that the SCHADS Award is an industry wide minimum 
safety net instrument covering employers operating in a diverse range of sectors and 
catering to a broad customer base, it is not appropriate to prescribe in any greater 
detail the specific items to be provided to every employee performing sleepover 
shifts, and 

 there is very little evidence before the Commission that would provide an 
evidentiary basis for granting the claim. Only 2 employee witnesses gave evidence 
that they work sleepovers.762 Further, that evidence is quite general in nature. Neither 
of those 2 witnesses gave any specific evidence about the facilities provided to them 
when working sleepover shifts. Notably, nor did they raise any concern about the 
adequacy of those facilities. The only exception to this is Mr Elrick, who is a union 
official. 

[1093] ABI submits that it cannot be said that the variation is self-evident and, therefore, in 
the absence of any probative evidence substantiating the issues the HSU seek to address, the 
claim should be dismissed.763

[1094] Ai Group opposes the claim for the following reasons:764

 the HSU has failed to mount a case warranting the variation proposed. No 
meaningful reasoning for the variation is advanced. The HSU does not assert that 
the variation is necessary to achieve the modern awards objective and does not refer 
to any of the relevant s.134 considerations

 the evidentiary material advanced by the Union does not establish that the kind of 
amenities specified in clause 25.7(c) are actually warranted in the context of all 
circumstances in which a sleepover occurs

 the claim seeks, at least in part, to inappropriately deal with safety issues through an 
‘extremely simplistic mechanism’. Employer obligations relating to the 
management of the safety of their employees at work is comprehensively dealt with 
under specialised laws dealing with workplace health and safety obligations for 
employers. It is not desirable or necessary, in the sense contemplated by s.138, for 
the award system to regulate such matters in a piecemeal manner

                                               

762 Exhibit ASU10 – Witness Statement of Augustino Encabo, 13 February 2019 at para 27; Exhibit ASU2 – Witness 
Statement of Robert Steiner, 15 October 2019 at para 13. 

763 ABI Submission, 12 July 2019 at para 13.12.
764 Ai Group Submission, 13 July 2019 at paras 482 - 490.






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 compliance with the proposed variation to clause 25.7(c) would be problematic 
from a practical perspective. The provision assumes a level of control over 
particular premises that does not accord with the practical realities of the industry. 
An employer will not always own the premises at which a sleepover occurs. For 
example, the premises may be an individual client’s residence, or it may be a rented 
facility. In such circumstances an employer will not always have the capacity or 
legal right to make the kind of physical modifications proposed

 the reference to ‘suitable sleeping requirements such as a lamp and clean linen’ is 
imprecise. The provision does not provide for an exhaustive list of items or 
conditions that might be said to constitute suitable sleeping requirements or any 
indication as to the basis upon which the requirements might be regarded as 
‘suitable’. The inclusion of such wording would be fertile ground for disputation 
and inconsistent with the need to ensure a simple and easy to understand modern 
award system

 to the extent that the proposed variation seeks to impose new and potentially 
expensive obligations upon employers, it is axiomatic that a consideration of 
s.134(1)(f) (the likely impact of any exercise of modern award powers on business) 
would weigh against granting the claim, and

 the inclusion of terms establishing these new obligations is beyond power.  Ai 
Group cannot identify any provision of the Act that would permit a modern award 
to include provisions of the nature proposed. 

[1095] NDS opposes the HSU’s sleepover claim,765 but makes no submission in support of its 
position.

[1096] AFEI opposes the claim, submitting that it is without merit and that the HSU has not 
explained any aspect of its argument for including such a degree of prescription concerning 
facilities to be provided to employees who work sleepover shifts. AFEI submits that, to the 
extent that the HSU’s concerns may be motivated by work health and safety concerns, 
employers are already obliged to ensure, as far as reasonably practicable, the health and safety 
of its workers. If these obligations are not met there are avenues for reporting concerns to 
work health and safety regulators.766

[1097] AFEI also observes that during the Award Simplification process the AIRC removed 
non-allowable matters from awards, such as provisions relating to amenities considered to be 
overly prescriptive’.767 To illustrate this point AFEI refer to the removal of the following 
provision from The Hospitality Industry – Accommodation, Hotels, Resorts and Gaming 
Award 1995:768

                                               

765 NDS Submission, 19 November 2019.
766 AFEI Submission, 23 July 2019 at para 163.
767 AFEI Submission, 23 July 2019 at para 163 citing Award Simplification Decision H0008 Dec 1533/97 M Print P7500.
768 AFEI Submission, 23 July 2019 at para 163 citing Award Simplification Decision H0008 Dec 1533/97 M Print P7500 at 

Attachment E.






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‘An employer shall provide a separate dressing room each for male and female employees, 
adequately lighted and ventilated with suitable floor coverings and floor space to be 
sufficiently roomy to accommodate all employees likely to use it at the one time; a table and 
adequate seating accommodation for staff to partake of meals, and lounge or settee and steel or 
vermin-proof lockers; adjacent thereto wash basins and showers with hot and cold water and 
toilets for staff use.’

[1098] AFEI advances the following submission in relation to the removal of the above 
provision from The Hospitality Industry – Accommodation, Hotels, Resorts and Gaming 
Award 1995:

‘The approach taken by the AIRC reflects that the determination of which specific amenities 
should be provided for employees is more appropriately addressed at the workplace level 
rather than in Award prescription. This allows more individualised consideration of the 
circumstances in identifying amenity needs, such as the nature of the client’s profile, the 
location at which the sleepover will be performed, the employee’s level of training and skill, 
and other amenities already provided to the employee.’769

9.3 EVIDENCE

[1099] The HSU relies on the evidence of Mr Elrick.770

[1100] At the time he gave his evidence Mr Elrick was an organiser for the HSU. Prior to 
commencing his employment with the HSU in March 2016 Mr Elrick held a few roles in the 
social and community services sector. Mr Elrick’s evidence in respect of sleepovers is set out 
at [24] – [27] of Exhibit HSU3. Mr Elrick was not cross-examined in respect of this part of 
his evidence.771

[1101] Mr Elrick’s evidence in respect of his experience with ‘sleepovers’ is of limited 
assistance. As ABI submits, it is not clear which employer Mr Elrick’s experience related to, 
or when it was said to have occurred, or whether he complained or otherwise raised concerns 
with his employer at the time, and/or how the situation was resolved if he did raise it.

[1102] Further, Mr Elrick’s evidence includes:

 a generalised assertion that ‘the sleepover arrangements in many workplaces aren’t 
conducive to a good sleep’,772 and

 a reference to a previous experience whereby he undertook sleepovers at a site where 
the bed was in the office.773

[1103] The evidence before us is of limited assistance; but the central question is not whether 
there is evidence of widespread failure to provide the claimed facilities and items, but 

                                               

769 AFEI Submission, 23 July 2019 at para 164.
770 Exhibit HSU3 – Witness Statement of William Elrick Statement, 14 February 2019.
771 Transcript, 15 October 2019 at PN1066-PN1084.
772 Exhibit HSU3 – Witness Statement of William Elrick Statement, 14 February 2019 at para 27.
773 Exhibit HSU3 – Witness Statement of William Elrick Statement, 14 February 2019 at para 27.






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whether, as a matter of merit, the variation proposed is necessary to ensure the SCHADS 
Award achieves the modern awards objective. 

9.4 CONSIDERATION

[1104] We begin our consideration by observing that we do not find AFEI’s reliance on the 
Award Simplification decision persuasive. The AIRC removed the The Hospitality Industry –
Accommodation, Hotels, Resorts and Gaming Award 1995 provision on the basis that it was 
not an ‘allowable matter’ within the meaning of s.89A(2) of the Workplace Relations Act 
1996 (Cth). The provision removed was quite different to the claim before us – it dealt with 
dressing rooms for hospitality employees whereas the present matter concerns sleepover shifts 
– and the legislative context is quite different.774

[1105] We next turn to Ai Group’s submission that the inclusion of the claimed terms is 
beyond power. 

[1106] In order for the Commission to have the requisite jurisdiction to vary the Award in the 
manner proposed, we must be satisfied, among other things, that:

(i) the subject matter of the proposed term is one which falls within the scope of 
s.139 of the Act; or

(ii) the proposed term is permitted by s.142, in that it is incidental to a term 
permitted by s.139(1) of the Act and is essential for the purpose of making a 
particular term operate in a practical way.

[1107] The HSU contends that the source of power for the proposed change is s.139(1)(c) of 
the Act which provides:775

‘(1) A modern award may include terms about any of the following matters:

(c) arrangements for when work is performed, including hours of work, rostering, 
notice periods, rest breaks and variations to working hours.’

[1108] Contrary to the HSU’s submission we are not satisfied that proposed clauses 25.7(c)(i) 
– (iv) are about arrangements for when work is performed. They are about provisions which 
must be made when a certain type of work (i.e. a sleepover shift) is performed. This 
characterisation may be contrasted with the first sentence of clause 25.7(c) which is about 
when work is performed.

[1109] It follows that to be within power the claimed term must be permitted by s.142(1) of 
the Act, which states: 

‘Incidental terms

(1) A modern award may include terms that are:

                                               

774 See [2017] FWCFB 5258 at [137] – [148].
775 Joint Union Submission, 10 February 2020 at para 283.






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(a) incidental to a term that is permitted or required to be in the modern award; and

(b) essential for the purpose of making a particular term operate in a practical way.’

[1110] The October 2017 Plain Language – Standard Clauses decision776 dealt extensively 
with the proper construction of s.142(1) of the Act777 and we adopt that analysis. In summary: 

 s.142(1) is not in itself an additional power for the inclusion of terms in a modern 
award that cannot be appropriately linked to a permitted term

 there is little discernible difference between the word ‘essential’ and the word 
‘necessary’ when used in the context of a provision such as s.142(1)(b). In Shop, 
Distributive and Allied Employees Association v National Retail Association 
(No.2),778 Tracey J considered the proper construction of the word ‘necessary’ in 
s.157 at [35]–[37] and [46] of his decision. The observations of Tracey J, in 
particular the distinction between that which is ‘necessary’ and that which is merely 
desirable is apposite to our consideration of what is ‘essential’ in the context of 
s.142(1)(b). Further, we agree with His Honour’s observation that reasonable minds 
may differ as to whether a particular incidental term is ‘essential’ for the purpose of 
making a particular term operate in a practical way, and

 s.142(1)(b) uses the expression ‘for the purpose of making a particular term operate 
in a practical way’. The Macquarie Dictionary defines the word ‘practical’ as 
‘consisting of involving or resulting from practice or action: a practical application 
of a rule’. The expression ‘for the purpose of making a particular term operate in a 
practical way’ is an expression of slightly wider import than that used in the former 
s.89A(2). A broader range of terms may be said to be for the purpose of making a 
particular term operate in ‘a practical way’ than would fall within the scope of the 
expression ‘for the effective operation of the award’. Further, the expression should 
be construed as a composite term, rather than focussing on the individual elements 
of s.142(1)(b).779

[1111] We return later to the question of whether the variation we would propose to make is 
permitted by s.142 of the Act. 

[1112] A similar claim to the HSU in respect of the ‘sleepover’ clause is advanced concerning 
to the 24-hour-care clause. We deal with that claim at section [8] of this decision. In respect of 
the claim to vary the 24-hour-care clause we decide that some amendments should be made to 
ABI’s proposed clause 25.8(c): 

‘(c) The employee must will normally have be afforded the opportunity to sleep for a 
continuous period of eight hours during a 24 hour care shift and, employees will be provided 
with a separate room with a bed and clean linen, the use of appropriate facilities (including 

                                               

776 [2017] FWCFB 5258.
777 Ibid at [132] – [150].
778 (2012) 205 FCR 227.
779 [2018] FWCFB 3009 at [57].






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access to food preparation facilities and staff facilities where these exist), and free board and 
lodging for each night when the employee sleeps over.’

[1113] If the same result were applied in respect of the sleepover clause, clause 25.7(c) would 
be amended as follows:

‘(c) The span for a sleepover will be a continuous period of eight hours. Employees will 
be provided with a separate room with a bed and clean linen, the use of appropriate 
facilities (including access to food preparation facilities and staff facilities where these 
exist) and free board and lodging for each night when the employee sleeps over.’

[1114] As a matter of merit, we are satisfied that it is appropriate to make such a variation.

[1115] We are not persuaded to prescribe the other facilities proposed by the HSU as they 
may require alterations to the relevant premises and impose significant costs which are not 
warranted based on the material before us.

[1116] As observed in the October 2017 Plain Language – Standard Clauses decision, 
reasonable minds may differ as to whether a particular incidental term is ‘essential’ for the 
purpose of making a term operate in a practical way. However, having regard to the context 
and the nature of sleepover shifts we are satisfied that, once varied as we propose, clause 
25.7(c) will be incidental to a permitted term (i.e. the first sentence of clause 25.7(c)) and 
essential for the purpose of making that term operate in a practical way.

[1117] We now deal with the s.134 considerations.

[1118] Section 134(1)(a) of the Act requires that we consider the ‘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). As 
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) of the Act. The ‘needs of the low 
paid’ is a consideration which weighs in favour of the variation of clause 25.7(c) in the 
manner we propose.

[1119] Section 134(1)(b) requires that we consider ‘the need to encourage collective 
bargaining’. We are not persuaded that the variation we propose to make would ‘encourage
collective bargaining’, it follows that this consideration does not provide any support for the 
proposed variation.

[1120] Section 134(1)(c) requires that we consider ‘the need to promote social inclusion 
through increased workforce participation’. Obtaining employment is the focus of s.134(1)(c). 
The impact of the variation proposed on total employment is not likely to be significant. We 
regard this consideration as neutral.

[1121] It is convenient to deal with the considerations in ss.134(1)(d) and (f) together.

[1122] Section 134(1)(f) of the Act is not confined to a consideration of the impact of the 
exercise of modern award powers on ‘productivity, employment costs and the regulatory 
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[1123] If the variation we propose is made then employment costs may increase, albeit not 
significantly. This consideration weighs against the variation proposed, but not to any great 
extent.

[1124] The considerations in s.134(1)(da), (e) and (h) are not relevant in the present context. 
No party contended otherwise. Further, we regard s.134(1)(g) of the Act as a neutral 
consideration.

[1125] The central issue in these proceedings is whether the existing provision in respect of 
sleepover shifts provides a ‘fair and relevant minimum safety net’. In substance, the 
submission put by the Unions is that the existing term is not fair to those employees who 
perform such work. We agree.

[1126] 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 ss.134(1)(a)–(h) of the Act. We have taken into 
account those considerations, to the extent that they are relevant to the matter before us and 
have decided to vary the SCHADS Award as proposed above (at [1113]).

10. MOBILE PHONE ALLOWANCE CLAIM

10.1 THE CLAIM AND SUBMISSIONS

[1127] Clause 20.6 of the SCHADS Award currently states:

‘20.6 Telephone allowance

Where the employer requires an employee to install and/or maintain a telephone for 
the purpose of being on call, the employer will refund the installation costs and the 
subsequent rental charges on production of receipted accounts.’

[1128] Initially the UWU and HSU made claims to vary clause 20.6.780 In a joint submission 
dated 10 February 2020 the Unions stated the HSU’s mobile phone allowance claim was 
withdrawn, and that it adopted the UWU’s claim.781

[1129] The UWU initially proposed that clause 20.6 be varied as set out below:

‘Where the employer requires an employee to install and/or maintain a telephone or mobile 
phone for the purpose of being on call, for the performance of work duties or to access work 
related information the employer will refund the installation costs and the subsequent rental 
charges on production of receipted accounts.’782 (emphasis added)

[1130] ABI and others raised concerns about the drafting of the UWU’s claim, in particular 
that employers will be required to reimburse all personal use by the employee.783 Business SA 

                                               

780 See UWU Submission, 15 February 2019 at paras. 81-110; HSU Submission, 15 February 2019 at paras. 59-60; HSU 
Amended Draft Determination, 15 February 2019.

781 Joint Union Submission, 10 February 2020 at para 274. See also Transcript, 11 March at PN319-PN325.
782 UWU Submission, 15 February 2019 at para 84.
783 ABI Submission, 12 July 2019 at paras 9.28 – 9.35. 






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and AFEI raised similar concerns, although Business SA acknowledged that employees are, at 
times, required to use personal mobile phones in the course of their employment.784

[1131] To address some of the drafting concerns raised by the employer parties, the UWU 
filed a revised draft determination with its further submissions in reply dated 3 October 2019. 
The revised draft determination provides an employer with 2 options in respect to reimbursing 
an employee for the cost of a mobile phone:

 the employer can provide a mobile phone, or

 the employer can reimburse reasonable costs associated with use of the employee’s 
own mobile phone incurred in the course of employment.

[1132] The UWU’s revised draft variation determination seeks to delete clause 20.6 and insert 
the following:

‘20.6 Telephone allowance

(a) Where the employer requires an employee to install and/or maintain a telephone for 
the purpose of being on call, the employer will refund the installation costs and the 
subsequent rental charges on production of receipted accounts.

(b) Where the employer requires an employee to use a mobile phone for the purpose of 
being on call, for the performance of work duties or to access work related 
information, the employer will either:

(i) provide a mobile phone fit for purpose and cover the cost of any subsequent 
charges; or

(ii) provide a mobile phone and reimburse subsequent costs on the production of 
receipts, or

(iii) reimburse the employee for the cost of the phone and its use according to 
clause (c).

(c) Where the employer requires the employee to use the employee’s own mobile phone 
in the course of employment:

(i) where the mobile telephone is provided under a mobile phone plan from a 
telecommunications provider, the employer and employee must agree in 
writing on the amount of reasonable reimbursement payable by the employer 
to the employee for the use of the employee’s mobile phone in the course of 
employment provided that such reimbursement must not be less than 50% of 
the cost of the employee’s monthly mobile phone plan, up to a maximum 
monthly phone plan of $100; or

(ii) where the mobile phone is a pre-paid mobile phone, the employer and 
employee must agree in writing on the amount of reasonable reimbursement 
payable by the employer to the employee for the use of the employee’s pre-
paid mobile phone.

                                               

784 Business SA Submission, 12 July 2019 at para 24; AFEI Submission, 23 July 2019 at para 144.






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(d) If requested, the employee must provide the employer with a copy of the mobile 
phone plan associated with the mobile telephone to be used by the employee in the 
course of employment.

(e) If the employee enters into a new mobile phone plan or arrangement with a 
telecommunications provider entitling the employee to a different allowance under 
this subclause, the new allowance will become payable from the first full pay period 
after the date the employee provides the employer with a true copy of the new mobile 
phone plan.’

[1133] The submissions and witness evidence relevant to the mobile phone allowance claim 
are set out at Attachment N. 

[1134] The UWU’s submissions in support of its claim are set out at [81]-[110] of its 
submission of 4 February 2019. In essence, the UWU submits that the current telephone 
allowance is ‘anachronistic’ and ‘does not reflect the current ubiquity of mobile ‘smart’ phone 
use and their status as work tools’.785 In addition to the witness evidence, the following points 
are advanced:

1. The Australian Communications and Media Authority released data on 30 
November 2018 indicating that 5.78 million Australians, about 31% of the 
population, have no fixed landline at home.786

2. Digital disruption was the subject of a 2016 PC Research Report which 
explicitly drew a link between the greater use of technology and improved 
productivity and workplace participation.787

[1135] The UWU also submits that granting its claim will assist the low paid to better meet 
their needs:

‘Much of the work covered by the Award can be classified as low paid and the cost of 
purchasing and maintaining a mobile phone because the employer demands its employees use 
this technology is a significant imposition and a cost which the employer should properly 
make some contribution towards.’788

[1136] The UWU goes on to submit:

‘The allowance as proposed would also provide certainty to employers that any direction to 
possess and use a mobile phone as a tool of work is a lawful and reasonable direction. It is 
unarguable that any work direction to use a personal mobile phone without some 
reimbursement provision for expenses is not ‘reasonable’.’789

                                               

785 UWU Submission, 15 February 2019 at para 101.
786 Ibid at para 92.
787 Ibid at paras 93 - 94.
788 Ibid at para 109.
789 Ibid.






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[1137] The UWU also contends that ‘such an allowance can be characterised apt to ‘promote 
flexible modern work practices and the efficient and productive performance of work,’ and 
greater workforce participation (ss 134(1)(d) and (c)’.790

[1138] The UWU submits that there is evidence indicating the variation of the SCHADS 
Award to insert a mobile phone allowance in the terms of its claim is necessary. A mobile 
phone for workers under the SCHADS Award providing services in the community is said to 
be a vital ‘tool of trade’ and required, in effect, at the direction of employers.791

[1139] In short, the UWU submits:

‘In light of the expense of purchasing and maintaining a mobile phone and its status as a tool of 
trade; it is appropriate that a reimbursement allowance as proposed is part of the safety net of 
this modern award.’792

[1140] The various employer parties oppose the claim.

10.2 EVIDENCE

[1141] In the Aged Care Substantive Claims Decision the Full Bench rejected a claim by 
United Voice and the HSU to vary the Aged Care Award to provide for a mobile phone 
allowance, in the following terms:

‘15.8 Phone allowance

Where the employer requires an employee to use a mobile phone for the purpose of being on 
call, for the performance of work duties, to access their work roster or for other work 
purposes, the employer will either: 

(i) provide a mobile phone and cover the cost of any subsequent charges; or 

(ii) refund the cost of purchase and the subsequent charges on production of receipted 
accounts.’793

[1142] The Aged Care Full Bench rejected the claim in the following terms:

‘[65] In addition to the paucity of evidence and the absence of cogent merit arguments in 
support of the claim there are a range of issues arising from the drafting of the proposed award 
term. These deficiencies are detailed in ABI’s submission and we need not repeat all of them 
here; it suffices to set out one of the deficiencies identified:

‘the clause does not require an employer to reimburse an employee for only the work-
related costs associated with the use of a mobile phone. It requires the employer to 
cover all costs, both up-front costs and “subsequent charges”. This is plainly 
unreasonable. 

                                               

790 Ibid at para 110.
791 UWU Submission, 18 November 2019 at para 57.
792 UWU Submission, 15 February 2019 at para 108.
793 Aged Care Substantive Claims Decision at [47].






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In practice, if the claim was to be successful, an employee could be required by their 
employer to use their mobile phone once per week to check their work roster, and the 
employer would automatically be obliged to cover both the purchase costs of the 
mobile device and the subsequent charges relating to the device. There would be 
nothing preventing the employee from taking out the most expensive mobile phone 
plan, using it virtually exclusively for personal use, and requiring the employer to foot 
the bill.’

[66] We agree with the above submission. United Voice’s attempts to respond to the 
identified deficiencies in the drafting of the proposed term were unconvincing… 

[67] We would add that the claim fails to come to grips with the problem of disaggregating 
the work related and private use proportions of costs associated with mobile phone use. This is 
a particular problem given the nature of some of the mobile phone plans in the market. 
Counsel for ABI encapsulated the problem, in these terms: 

‘If someone has a $99 plan and its 2 gig of data and unlimited calls and the employee 
makes 10 calls that month, how do you apportion the cost?’ 

[68] In summary, the case put by United Voice was unsupported by evidence, lacked 
rigour and failed to establish the requisite merit to warrant the variation proposed. Further, the 
formulation of the proposed clause was deficient in numerous respects and reflected the lack 
of care and effort that characterised the case put on behalf of United Voice. We are not 
satisfied that it is necessary to vary the Aged Care Award in the manner proposed in order to 
achieve the modern awards objective.’794

[1143] The submissions put in support of the Unions’ claim in the matter before us are 
broadly similar to those advanced in support of the Aged Care Award claim above. However, 
in the Aged Care Substantive Claims matter the Unions did not file any evidence in support of 
their claim; that is not the case in the matter before us. 

[1144] In our view the evidence in respect of this issue supports the following findings:

1. A very high proportion of Australian adults own a mobile phone or a smart phone:

 approximately 83%, or 15.97 million Australian adults, own a smart 
phone,795 and 

 approximately 96%, or 18.57 million Australian adults, own a mobile 
phone.796

2. We infer from finding (1) that most employees covered by the SCHADS Award 
would own a smart phone.

3. Many employers have an expectation that employees in home care and disability 
services have access to, and use, a mobile phone for various work-related 
purposes including to: 

                                               

794 Aged Care Substantive Claims Decision at [65] – [68].
795 ABI Submission, 12 July 2019 at para 9.13, referring to the Australian Communications and Media Authority, 

Communications Report 2017-2018, 30 November 2018, p 33.
796 Ibid.






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 take directions from their employer797

 access work-related apps to maintain records on clients, confirm attendance 
and input other work-related data798

 update their employer of issues with clients799

 access and read client care plans800

 call clients who may not answer the door to their home801

 undertake medication checks with clients802

 advise clients when running late803

 be advised of roster changes via call or text804

 check emails relating to roster changes or work-related communications,805

and

 report workplace hazards/incidents.806

4. Some employers covered by the SCHADS Award provide their employees with 
mobile phones.807

5. While some employees covered by the SCHADS Award are required to use their 
personal mobile phones during work,808 we accept Mr Elrick’s evidence that 

                                               

797 Transcript, 17 October 2019, cross-examination of Jeffrey Wright at PN2584; Transcript, 18 October 2019, cross-
examination of Graham Shanahan at PN2867-PN2870.

798 Exhibit HSU3 – Witness Statement of William Elrick, 14 February 2019 at paras 31 - 33; Transcript, 17 October 2019, 

cross-examination of Jeffrey Wright at PN2587-PN2588; Transcript, 18 October 2019, cross-examination of Graham 

Shanahan at PN2865; Transcript, 18 October 2019, cross-examination of Joyce Wang at PN3554-PN3559.
799 Transcript, 18 October 2019, cross-examination of Graham Shanahan at PN2872.
800 Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 22.
801 Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019 at para 15.
802 Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 20; Exhibit UV4 – Witness Statement of 

Deon Fleming, 16 January 2019 at para 29.
803 Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 20; Exhibit UV4 – Witness Statement of 

Deon Fleming, 16 January 2019 at para 27; Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019 at 

para 15.
804 Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019 at para 16.
805 Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at para 27; Exhibit UV6 - Witness Statement of 

Belinda Sinclair, 16 January 2019 at para 17; Transcript, 15 October 2019, cross-examination of Deon Fleming, at 

PN539; Transcript, 18 October 2019, cross-examination of Jeffrey Wright at PN2586; Transcript, 18 October 2019, 

cross-examination of Graham Shanahan at PN2870.
806 Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019 at para 15.
807 Exhibit HSU27 – Witness Statement of Pamela Wilcock, 15 February 2019 at para 19; Exhibit HSU4 – Witness Statement 

of Heather Waddell, 15 February 2019 at para 31; Exhibit HSU28 - Witness Statement of Thelma Thames, 15 February 

2019 at para 22.  There was also evidence of employers providing employees with a ‘tablet computer’ and not a mobile 

phone (see Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at para 25).  However, Mr Lobert stated 
that none of his three employers provide their employees with a mobile phone (see Exhibit HSU29 – Witness Statement 

of Bernie Lobert at para 20). Ms Sinclair and Ms Stewart are also not provided with a mobile phone by their employers 

(see Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019 at para 16; Exhibit UV1 – Witness Statement 

of Trish Stewart, 17 January 2019 at para 21).






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‘generally speaking, most workers will only use their personal phone for the 
purposes of being contacted for shifts, and not during work’.809

6. Employees use their personal mobile phones for both personal and work purposes. 
The proportions used for personal and work purposes varies810 and there was 
limited evidence in relation to the extent of usage by employees of mobile phones 
for work purposes. The totality of evidence in relation to the extent of mobile 
phone usage by employees is as follows: 

(a) Ms Fleming gave evidence that she uses her phone for work-related 
reasons ‘regularly’ and stated that she ‘would make approximately 10 
calls per week on the mobile’811

(b) Ms Sinclair gave evidence that she would ‘normally make two to eight 
calls each working week’,812 and 

(c) Ms Stewart gave evidence that she normally makes 2 to 3 calls per 
working day.813

7. Employees’ costs in respect of their mobile phone ownership and/or use varies 
considerably. For example, Ms Fleming’s mobile phone bill is approximately 
$65 per month;814 while Ms Stewart’s mobile phone bill is approximately $170 
per month.815

[1145] We note the UWU also sought findings in the following terms:

‘In circumstances in which the employer did not provide a mobile phone, or reimburse for 
associated costs, the evidence indicated that: 

(a) not all employees in this industry have a smartphone, and not all employees have a 
phone with the capabilities to access the relevant apps as required by their 
employer;816

                                                                                                                                                  

808 Ms Wilcock, Ms Waddell and Mr Lobert all stated that they are required to use either the company-issued mobile phone 
(in the case of Ms Wilcock and Ms Waddell) or their personal mobile phone (in the case of Mr Lobert) in the course of 

their duties (see Exhibit HSU27 – Witness Statement of Pamela Wilcock, 15 February 2019 at para 19; Exhibit HSU4 –

Witness Statement of Heather Waddell, 15 February 2019 at para 31; Exhibit HSU29  – Witness Statement of Bernie 

Lobert at para 20). 
809 See Exhibit HSU3 – Witness Statement of William Elrick Statement, 14 February 2019 at para 30.
810 See Transcript, 15 October 2019, cross-examination of Trish Stewart at PN440-PN452; Transcript, 15 October 2019, 

cross-examination of Deon Fleming at PN534-PN540. 
811 Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at para 29.  
812 Exhibit UV6 - Witness Statement of Belinda Sinclair, 16 January 2019 at para 15.
813 Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 20.
814 Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at para 27.
815 Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 21.
816 Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at para 27; Exhibit HSU3 - Witness Statement of 

William Elrick, 14 February 2019 at para 31; Transcript, 15 October 2019, cross-examination of William Elrick at 

PN1075-PN1080.






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(b) employees are in effect directed by their employer to upgrade to a smartphone, or 
upgrade their smartphone, in order to be able to access apps required by the 
employer;817

(c) employees may have to pay for a higher level plan than they otherwise would;818 and 

(d) the work-related cost of an appropriate mobile phone can be a significant portion of 
the overall cost, and in some cases, equally as significant as the costs of personal 
use.’819

[1146] We do not propose to make these findings. In our view there is insufficient evidence to 
support some of the findings proposed and in respect of others the proposed finding provides 
an incomplete, and misleading, picture. As to proposed finding (a), while that may be correct 
that not all employees in the industry have a smartphone or a phone with the capabilities to 
access the relevant apps as required by their employer, the evidence overwhelmingly 
suggested that most employees have a smartphone with the appropriate capabilities.  As to 
proposed finding (b), the proposed finding is based on the evidence of only 1 employee, 
which provides an insufficient basis for the general finding sought. As to proposed finding 
(c), while it may be hypothetically correct that some employees may have to pay for a higher 
level plan than they otherwise would, there is insufficient evidence to support a general 
finding in the terms proposed. As to proposed finding (d), the evidence does not support a 
finding that the work-related cost of an appropriate mobile phone can be a significant portion 
of the overall cost.

10.3 CONSIDERATION

[1147] As we have mentioned, the Unions contended, in essence, that the mobile phone is a 
vital ‘tool of the trade’ for employees covered by the SCHADS Award and is effectively 
required by their employees. 

[1148] As a general proposition, if an employer directs an employee to purchase and maintain 
a particular item of equipment for work use (such as mobile phone) it is reasonable that the 
employer reimburses that employee for the reasonable costs incurred in complying with that 
direction. But this case illustrates the difficulties which arise when seeking to apply that 
general proposition. 

[1149] As we have mentioned, the evidence overwhelmingly suggested that most employees 
covered by the SCHADS Award own a smart phone. In its submissions of 3 October 2019,
the UWU acknowledges that most employees own a mobile phone but submits that this does 
not remove the need for a mobile phone allowance because:

‘There are costs associated with using a mobile phone for work, whether that is direct charges 
for work-related use, having to pay for a higher plan to ensure work-related use is covered, or 
increased wear and tear on the device.’820

                                               

817 Exhibit UV4 – Witness Statement of Deon Fleming, 16 January 2019 at para 27.
818 Exhibit UV1 – Witness Statement of Trish Stewart, 17 January 2019 at para 21; Transcript, 15 October 2019, cross-

examination of Trish Stewart at PN453-PN455.
819 Transcript, 15 October 2019, cross-examination of Trish Stewart at PN440-PN445; Transcript, 15 October 2019, cross-

examination of Deon Fleming at PN533-PN538. 






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[1150] The difficulty for those supporting the claim is that the evidence that SCHADS Award 
employees are required to use mobile phones in the course of their employment is quite 
limited. Additionally, there is no probative evidence about the actual cost incurred by 
employees who use their personal mobile phone for work-related purposes. Indeed, there are 
very real practical problems with estimating the costs incurred in using your own phone for 
work-related purposes. 

[1151] Mobile phone plans often provide unlimited local calls and text messages and capped 
data usage for a flat monthly free. Ms Stewart and Ms Fleming gave evidence that their 
mobile phone plans had these characteristics.821 In such circumstances the customer is not 
charged for individual standard phone calls or text messages. In these circumstances it is not 
possible to estimate the cost of work-related use. This is particularly problematic for the 
proponents of the claim because proposed clause 20.6(c)(i) would require an employer to pay 
half the cost of an employee’s mobile phone plan. 

[1152] The inherent difficulty in framing an award term dealing with mobile phone usage for 
work-related purposes is one reason why such terms are not common in modern awards. 

[1153] In this regard we note that Ai Group contends that the variation proposed is ‘out of 
step’ with the way in which the modern awards system typically deals with the matter of 
telephones, including mobile telephones. Ai Group submits that the vast majority of awards 
do not make any provision for telephones and those which do, appear to contemplate only 
landline telephones.822 The award provisions which either deal expressly with mobile phones 
or are drafted such that they may apply to mobile phone usage include various limitations 
which are not replicated in the claim. For example:

(a) the Commercial Sales Award 2020,823 Contract Call Centres Award 2020,824

and Telecommunications Services Award 2020825 entitle an employee to 
reimbursement for the reasonable cost of purchasing a phone only where the 
employee does not already have a telephone. These awards entitle an employee 
to reimbursement for the reasonable cost of purchasing a mobile phone; not to 
all costs incurred by purchasing a mobile phone

(b) the Real Estate Industry Award 2020 requires the payment of only reasonable 
reimbursement, as agreed between the employee and employer,826 and

                                                                                                                                                  

820 UWU Submission, 3 October 2019 at para 37.
821 Transcript, 15 October 2019 at PN445-PN449, PN547.
822 See for example clause 20.3(d) of the Air Pilots Award 2020, clause B.1.10 of the Aircraft Cabin Crew Award 2020, 

clause 15.3(d) of the Broadcasting and Recorded Entertainment Award 2020, clause 22.3(f) of the Health Professionals 

and Support Services Award 2020, clause 18.3(b) of the Medical Practitioners Award 2020, clause 31.2 of the Plumbing 

and Fire Sprinklers Award 2010 and clause 18.2(b) of the Rail Industry Award 2020.
823 Clause 17.2(e).
824 Clause 18.3(b).
825 Clause 18.4(b).
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(c) the Stevedoring Industry Award 2020 provides for the payment of a set weekly 
allowance, as prescribed by the award.827

[1154] The requisite merit for the proposed variation has not been made out. It is plainly 
unfair to impose an obligation on employers to meet at least half of the cost of an employee’s 
monthly mobile phone plan in circumstances where there is no probative evidence about the 
actual cost incurred by the employees who use their personal mobile phone for work-related 
purposes. 

[1155] In addition to the absence of probative evidence about the cost of work-related use and 
the limited evidence as to the extent to which employees are required to use their personal 
mobile phone for work, the following matters have also led us to dismiss the claim:

 the evidence is confined to care workers, which is the focus of the Unions’ 
submissions, yet the proposed variation applies to all employees covered by the 
SCHADS Award

 there is no evidence regarding the types of mobile phone plans which are available 
and their costs. The absence of such evidence renders an assessment of the monthly 
cap in proposed clause 20.6(c)(i) problematic

 the claim would require employers to contribute to the cost of a mobile phone 
which the employee has already purchased for private use, and

 on its terms the proposed variation applies to part-time and casual employees. 
Hence employers would be required to pay half the monthly cost of a mobile phone 
plan for an employee who may only perform 4 hours work per week. 

[1156] We dismiss the claim.

11 COMMUNITY LANGUAGE ALLOWANCE CLAIM

11.1 BACKGROUND 

[1157] The ASU’s community language allowance claim was originally part of the Tranche 1 
proceedings. In its original form the claim sought to insert a new clause 20.10 in the 
SCHADS Award to provide for a community language skills allowance payable to employees 
when they use a language other than English in the course of their duties.

[1158] During proceedings on 16 April 2019, we sought further information regarding other 
industrial instruments that contain community language allowances. On 1 May 2019 we 
directed ASU and Ai Group to file any agreed material they considered relevant by 17 May 
2019. Interested parties were given an opportunity to respond to the joint material filed by 
ASU and Ai Group.

[1159] Also during the proceedings on 16 April 2019, Ai Group tendered the CLAS 
Handbook 2018: a 6-page document issued by Multicultural NSW of the NSW 

                                               

827 Clause 18.2(i).








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Government.828 This document outlines that NSW Government agencies must provide 
language assistance programs for people who do not speak English well, or at all, to access 
government services. The Handbook suggests that the Community Language Allowance 
Scheme (CLAS) assists agencies to provide those language services by remunerating 
employees who are selected for CLAS and use community language skills as part of or in 
addition to their normal duties.

[1160] In relation to the CLAS, we sought further information regarding the scheme 
including: 

 How does the scheme operate? 

 How does the scheme intersect with employers who operate under this Award? 

 Are there similar schemes operating in other states? 

 If so, what are the relevant funding arrangements? 

 Further information regarding the accreditation process and arrangements for 
community language skills.

[1161] We also asked parties to consider and make submissions as to whether community 
language skills are contemplated within the existing classification structure.

[1162] The joint submissions of ASU and Ai Group identified 39 instruments that contained 
language allowance provisions. Of this agreed list, 26 appear to be enterprise collective 
agreements, 5 are modern enterprise awards and the remaining 8 are NSW and South 
Australian state awards.

[1163] On 26 April 2019, the Commission issued a Background Document setting out the 
provisions from modern awards and modern enterprise awards which contained references to 
translators and interpreters or contained some form of language allowances. 

[1164] Parties were directed to file any submission in relation to the Background Document 
addressing whether the information was correct and the relevance of the information to the 
claim.

[1165] On 2 September 2019, we issued a Decision829 stating that we did not intend to 
determine the ASU’s claim as part of our determination of the Tranche 1 claims and that a 
further Background Paper would be prepared summarising the submissions, evidence and 
other material before us. We also indicated we would issue a Statement setting out how we 
proposed to finalise our consideration of this claim.

[1166] A Statement830 and Background Paper were published on 4 December 2019 (the 4 
December 2019 Background Paper). The 4 December 2019 Background Paper set out a 

                                               

828 Exhibit AIG4 – Handbook from Multicultural New South Wales website.
829 September 2019 Decision.
830 [2019] FWC 8251.






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summary of the ASU’s submissions in support of the claim, a summary of the evidence and a 
summary of the employer submissions as at that point in time.

[1167] A conference of interested parties was held on 17 December 2019 to discuss the 
ASU’s claim. Further to that conference additional directions were made and the ASU filed an 
amended claim on 7 February 2020.

[1168] The submissions and witness evidence relevant to the community language allowance 
claim are set out at Attachment O. 

11.2 THE CLAIM

[1169] The ASU seeks the insertion of the following clause:831

‘20.10 Community Language and Signing Work

(a) An employee who, in the course of their normal duties, uses a language other than English 
to provide services to speakers of a language other than English, or use sign language to 
provide services to those with hearing difficulties, shall be paid an allowance of 4.90% of the 
standard rate per week.

(b) The allowance in 20.10(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.’ 

[1170] The ASU submits that the purpose of the claimed allowance is to provide additional 
remuneration to employees who use languages other than English (including sign language) 
because this work is not contemplated in the classifications of the SCHADS Award.

[1171] The amended claim seeks to address issues raised by the various employer 
organisations and narrow the scope of the issues between the parties, in particular:

1. The amended variation clarifies to whom the allowance would apply, namely 
an employee ‘who, in the course of their normal duties, uses a language other 
than English to provide services to speakers of a language other than English’ 
or provide services in sign language to those with hearing difficulties.

2. The amended variation eliminates the distinction between occasional and 
regular use of community language skills.

3. The allowance is set at 4.90 per cent of the standard rate, equivalent to the 
allowance for occasional use in the original draft determination.

4. The allowance applies pro-rata to part-time and casual employees on the basis 
that ordinary weekly hours of a full-time employee are 38.

5. The obligation in the original draft determination for an employer to provide 
accreditation has been deleted. 

                                               

831 ASU Submission 7 February 2020 at para 4.






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[1172] The ASU notes the submissions of various employer parties that only accredited 
interpreters should be entitled to the payment of this allowance and rejects that submission. In 
its Reply Submission of 4 June 2019 and oral submissions at the hearing on 16 April 2019, 
the ASU notes that many skilled and experienced employees in the SACS sector lack formal 
qualifications because many people find work in the sector after having been client or a 
beneficiary of an organisation. This is said to be reflected in the classification structure for 
SACS employees; even at the highest classification levels (Levels 7 and 8) there is no 
requirement for employees to hold any formal qualifications. 

[1173] The ASU submits that the Commission should find that employers require the use of 
community language skills and that most employees who use those skills do not have 
accreditation. If formal accreditation was made a prerequisite for being paid the allowance, 
employers would simply continue using the community language skills of their unaccredited 
employees without being required to pay the allowance, accordingly it would be unfair to 
impose such a requirement.

11.3 THE SUBMISSIONS 

[1174] The ASU filed the following submissions in relation to its original claim: 

 7 November 2018 (draft determination only)

 18 February 2019

 15 April 2019 (amended draft determination only)

 17 May 2019 (joint submission with Ai Group regarding industrial instruments 
containing community language allowances)

 17 May 2019 (in response to Directions of 1 May 2019)

 4 June 2019 (in response to Directions of 1 May 2019).

[1175] The ASU and the other Unions did not file any submissions following the filing of the 
ASU’s amended claim on 7 February 2020.832

[1176] In its submissions of 18 February 2019, the ASU submits that the provision of a 
community language skills allowance would:

 recognise and endorse the fundamental principles of the ERO, which recognises 
equal pay for equal work in the social and community services sector

 improve the position of community sector organisations to meet the policy 
challenges in ensuring access and equity for Australia’s culturally and linguistically 
diverse population

                                               

832 Other than in response to Question 1 of Background Paper 3 which asked the parties to advise what evidence they sought 
to rely upon for the community language allowance claim. See Joint Union Submission, 10 March 2020 at p 4.






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 assist in the provision of the highest standard of effective professional 
communication, programmes and services that are responsive to the needs of all 
Australians

 be an efficient and effective use of limited resources in the community sector, 
allowing less reliance upon external translators and interpreters, and

 be capacity building for the community sector workforce, which is currently the 
fastest growing sector in the country.

[1177] The ASU contends that the provision of a community language skills allowance would 
promote flexible modern work practices and the efficient and productive performance of work 
by attracting skilled staff to the social and community sector, thereby reducing the costs 
associated with the sector’s reliance on interpreters.

[1178] The ASU submits that the ability to communicate in more than one language is a 
highly sought skill in the social and community sector, which is not contemplated by the 
classifications of the SCHADS Award. 

[1179] The ASU submits that due to the nature of the work performed by employees in the 
social and community sector, it is very common for organisations to seek employees who are 
bilingual, even if the position description does not specify this as a requirement, to ensure that 
they can service their diverse client base. The ASU contends that organisations value their 
bilingual employees as they recognise that a superior professional service can be provided, 
especially to complex and traumatised clients and communities where the establishment of a 
professional counselling or trusting relationship is essential. 

[1180] The ASU submits that awards that provide remuneration for employees for their use of 
language skills are relevant to its application because they show that:833

 many awards in the community, local government, public services and private 
sectors provide for language skill related allowances, but

 there is no standard rate of remuneration for the use of language skills in modern 
awards

 there is no standard way of describing the use of language skills in modern awards,
and

 many awards provide allowances for language skills without requiring accreditation 
as a condition of payment.

[1181] The ASU submits the following examples834 from the list contained in the Background 
Document to support its contention:

                                               

833 ASU Submission, 17 May 2019 at para 20.
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 the Health Professionals and Support Services Award 2020 provides for an 
‘occasional interpreting allowance’ at clause 22.2(c) which is paid where an 
employee, who is not employed as a full-time interpreter, is required to perform 
interpreting duties. No accreditation is required under this clause and the allowance 
is 0.11% of the standard rate per occasion (currently $1.05), capped at 1.27% of the 
standard rate per week (currently $12.14)

 the Aboriginal and Torres Strait Islander Health Workers and Practitioners and 
Aboriginal Community Controlled Health Services Award 2020 provides for an 
annual ‘bilingual qualification allowance’ at clause 18.1 which is paid to employees 
with a recognised proficiency in English as well as ‘any one of the languages 
normally used by the employer’s customers/clients’ who is ‘regularly required in 
the course of their duties to use one or more of those languages’, and

 the Airline Operations – Ground Staff Award 2020 provides for a ‘foreign language 
allowance’ at clause 20.2(e) which is paid when an employee ‘is required by the 
employer to speak a foreign language’. There is no requirement for accreditation.835

[1182] Finally, in its submission of 4 June 2019, the ASU submits that employers in the social 
and community sector report difficulty finding and retaining adequately skilled staff due to 
competition with the public sector, which can offer better pay and conditions, including a 
community language skills allowance. It submits that providing a community language skills 
allowance equal to that paid to government employees would enhance opportunities for the 
sector to attract the best possible employees. 

[1183] The various employer interests oppose the claim. 

[1184] The NDS primarily relies on its previous submissions opposing this claim836 and notes 
that the revised claim partially addresses some of the drafting concerns raised by various 
parties. However, NDS submits that the concept of using language skills ‘in the course of 
their normal duties’ still suffers from a lack of precision and that the deletion of the 
requirement around accreditation removes an unclear administrative burden but does not 
resolve the question of how to determine whether an employee has language skills that they 
are required to use that would justify the imposition of an allowance.

[1185] Further, the NDS submits that the quantum of the allowance remains too high. NDS’ 
earlier submission compared rates of pay for interpreters set by other modern awards and 
demonstrated that the SCHADS Award already includes pay rates that are approximately 
equivalent,837 and went on to analyse how the existing classification structure already 
comprehends this level of skill and responsibility.838 NDS contends that in the disability 
sector there is the added difficulty of how to charge clients for this allowance when the 

                                               

835 Each of these awards have now been varied during the 4 yearly review, the current award titles are: Health Professionals 
and Support Services Award 2020, Aboriginal and Torres Strait Islander Health Workers and Practitioners and 

Aboriginal Community Controlled Health Services Award 2020 and Airline Operations – Ground Staff Award 2020. 

Clause references have been amended in the new awards.
836 NDS Submission, 5 April 2019 at paras 8 – 17; NDS Submission, 17 May 2019 at paras 2 – 8, 19 – 31.
837 NDS Submission, 17 May 2019 at paras 3 – 7.
838 NDS Submission, 17 May 2019 at paras 19 – 31.






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language skills may only be required for a minority of clients who are supported by the 
worker.

[1186] Ai Group advance 5 points in opposition to the amended claim:

1. A strikingly unfair aspect of the proposed new clause is that its application is 
not limited to circumstances where an employee uses their secondary language 
skills at the direction of their employer. Given the multicultural nature of 
Australian society, many employers now engage employees who happen to 
possess secondary language skills. It is likely the case that in some instances 
such employees may, by virtue of coincidence rather than design or intent, be 
required to work with clients who speak the same other language.

2. The claim does not limit the application of the clause to circumstances where 
the use of the secondary language adds value to the work of the employee. 
Without in any way calling for the introduction of a new allowance of the 
nature proposed, Ai Group submits that, if a claim for a new allowance were to 
be entertained, any resulting clause should be limited in its application to 
circumstances where an employer has expressly requested or required an 
employee to use the relevant skills. This will mitigate the adverse effect on 
some employers by enabling them to manage or control their exposure to such 
a claim. It will also reduce the prospect of the employee receiving an 
additional payment under the safety net in circumstances where there is no real 
increase in the value of their work flowing from their exercise of relevant 
language skills.

3. There is no requirement that employees possess any particular level of 
competence in their use of the secondary language. The Award should not 
require payment simply because an employee exercises some rudimentary 
skills in a particular language other than English. This would be unfair to their 
employer. Any provision of the nature proposed by the ASU should stipulate 
an objective measure of proficiency which must be passed for the allowance to 
be payable.

4. It is unclear what justification there is for the particular quantum of allowance 
proposed. This is entirely unsatisfactory given the amount that the ASU has 
proposed for the allowance.

5. It is unclear whether an employee is only to receive the allowance in the week 
that they use the skill or whether it is payable on a regular or ongoing basis. It 
would be obviously unfair for an employer to be required to pay an allowance 
on an ongoing basis for only occasional use.

[1187] ABI submits that the ASU’s proposed new clause is materially different to that which 
they have pursued since November 2018 and that the ASU’s assessment of the differences 
between the 2 proposals is also incomplete. 

[1188] ABI contends that the ASU submission fails to articulate any reason for most of the 
changes and that the ASU’s approach effectively requires employer parties to ‘guess’ the 








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intention or rationale for certain changes in the ASU’s position without the benefit of any 
written submissions addressing their new proposal. 

[1189] ABI submits that the new ASU proposal differs from the original proposal in several
significant respects:

1. The allowance is proposed to apply to a different category of employees. The 
original proposal was expressed to apply to ‘employees using a community 
language skill as an adjunct to their normal duties’. However, the new proposal 
is expressed to apply to an employee who, ‘in the course of their normal 
duties’, uses a language other than English or provides services in sign 
language. No explanation is provided by the ASU for this change, other than a 
general comment that the purpose of the claimed allowance is to provide 
additional remuneration to employees who use languages other than English 
(including sign language).

2. The proposal removes the two classes of allowance (for ‘occasional’ and 
‘regular’ use of the skill) and replaces those with a single allowance payable 
where an employee uses a language other than English or sign language ‘in the 
course of their duties’. Again, no explanation is offered by the ASU for this 
change.

3. The proposal removes the limitation on the work anticipated to be performed 
by employees as initially contained in clause 20.10.5 of the ASU’s original 
proposal, which stated that the relevant employees ‘convey straightforward 
information relating to services provided by the employer, to the best of their 
ability’. Again, no explanation is offered by the ASU for this change. For 
example, it is not clear whether the clause is now intended to capture a broader 
class of employees (such as qualified interpreters and translators). In any event, 
that appears to be the effect.

4. The proposal removes the words initially contained in clause 20.10.5 of the 
ASU’s original proposal, which stated that the relevant employees ‘do not 
replace or substitute for the role of a professional interpreter or translator’. Yet 
again, no explanation at all is offered by the ASU for this change. Put simply, 
it is unclear why this wording has been removed.

5. The ASU’s new proposal removes the words contained in clause 20.10.6 of the 
ASU’s original proposal, which stated that ‘Such employees shall record their 
use of community language skills’. Yet again, no explanation at all is offered 
by the ASU for this change. This is an unexplained and material departure 
from the ASU’s original proposed clause.

6. The ASU’s new proposal removes the proposed clause 20.10.7 in its entirety. 
That clause dealt, at least in part, with the issue of accreditation. However, it 
also dealt with additional issues which have been stripped out of the ASU’s 
new proposal. These items are:

(a) a requirement that relevant employees ‘be prepared to be identified as 
possessing the additional skill(s)’, and








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(b) a requirement that the employees make themselves ‘available to use the 
additional skill(s) as required by the employer’

Yet again, no explanation at all is offered by the ASU for this change. This is 
an unexplained and material departure from the ASU’s original proposed 
clause. The ASU have failed to advance any submission at all in support of this 
change.

7. The ASU’s new proposal removes the accreditation process in the sense that 
there is no longer any process under the proposed clause for an employee to 
satisfy the employer that they have the skill for which the allowance would be 
payable. Again, this is a material departure from the ASU’s original proposal.

8. The proposal introduces pro-rating of the entitlement in respect of part-time 
and casual employees.

[1190] ABI accepts that the new ASU proposal does ‘narrow the scope’ of some issues in 
dispute between the parties but submits that it is also evident that the new ASU proposal has 
the opposite effect in some respects, and actually expands the issues in dispute (and creates 
new issues in dispute) as compared to their original proposal.

[1191] The areas in which the ASU’s new proposal are said to expand the issues in dispute 
are as follows:

 it has the effect of capturing a greater number of employees by reason of the 
removal of the notion of the skill being used as an ‘adjunct’ to the employee’s 
duties

 the removal of the notion of employees conveying ‘straightforward information’ 
further extends the scope of the proposed clause

 the removal of the notion that the employees did not ‘replace or substitute’ 
professional interpreter or translators appears to again extend the scope of the 
proposed clause

 the removal of the record keeping obligation creates a new issue in dispute between 
the parties, and

 the removal of any process of accreditation creates a further issue in dispute 
between the parties.

[1192] ABI submits that, in the interests of fairness, the ASU should not be permitted to 
pursue a new proposal that materially departs from their original proposal and which expands 
upon the issues in dispute between the parties. 

[1193] ABI also notes that the evidence relied upon in support of the ASU’s new claim is the 
evidence of witnesses heard during the Tranche 1 hearing in April 2019 and submits that 
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‘it is questionable whether that evidence can still be relied upon in support of the new variation, 
or whether the Commission may need to consider recalling the witnesses. This provides 
another reason why the Commission should not permit the ASU to pursue its new proposal’.

[1194] ABI opposes the amended ASU claim and continues to rely on its reply submissions of 
5 April 2019 in respect of the claimed introduction of a community language allowance,839 the 
oral submissions made during the Tranche 1 hearing, the further submission of 19 May 2019, 
and further reply submission of 3 June 2019. 

[1195] Turning to the specific terms of the new ASU proposal, ABI contends that the 
proposed clause is deficient in the following respects:

1. The entitlement to an allowance is triggered where an employee ‘uses’ a 
second language or sign language to provide services to particular individuals. 
ABI submits the trigger for an allowance of this type should be the employer 
‘requiring’ or ‘directing’ an employee to use their second language, rather than 
the employee simply deciding to use it.

2. The proposed variation does not include any requirement for employees to 
have their community language skill accredited by an appropriate body as a 
precondition of receiving the allowance. The removal of any requirement for 
accreditation has the consequence of there being no objective basis for an 
employee to be assessed as having the skill, and no capacity or process for the 
employer to determine whether the employee has the skill.

3. The accreditation issue gains even more importance under the ASU’s new 
proposal given that the wording about the employees not ‘replac[ing] or 
substitut[ing] for the role of a professional interpreter or translator’ has been 
removed. It now appears that the ASU intends for these employees to 
effectively replace professional translation services but without any 
accreditation requirement.

4. ABI submits there is no explanation as to how the ASU arrived at the quantum
of the allowance sought, nor sufficient evidence that would allow the 
Commission to make a proper assessment as to the value of the skill. It says 
the ASU has failed to articulate the rationale for the quantum of the allowance 
claimed and no submission has been made in respect of why the amount 
sought is an appropriate amount. 

[1196] AFEI opposes the amended claim and continues to rely on its written submissions 
filed on 8 April 2019 and 22 May 2019. In response to the amended claim, AFEI advances the 
following 7 points:840

1. Many of the concerns identified in its submissions841 in respect of the original 
claim continue to apply in respect of the amended claim, including:

                                               

839 See Part 8 of that reply submission, noting that certain aspects of that submission are no longer applicable to the new ASU 

claim.
840 AFEI Submission, 26 February 2020 at para 1.67.






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 the effect of the clause would mean that the payment of the allowance 
would apply irrespective of whether the employer has requested or 
required the employee to use a language other than English or use sign 
language, and in circumstances where the employer has no verification 
of the employee’s actual skill level

 the limited evidence relied upon by the ASU in support of this claim

 eligibility for the allowance would apply without the requirement for 
the employee to have a qualification and or proof of proficiency, and

 the allowance claimed is significantly higher than, and disproportionate 
to most interpreter/language/translator allowances in other modern 
awards and modern enterprise awards,

2. There are issues with proportionality regarding the quantum that is being 
sought. For example, a social and community services employee level 2 who 
uses a language other than English in the course of their normal duties (persons 
at this level can hold a diploma) would be earning more than a social and 
community services employee level 3 (persons at this level include graduates 
with a 3 or 4 year degree).

3. In respect of the lack of proof of formal qualifications or accreditation required 
from the employee prior to the applicability of the proposed allowance, the 
ASU submit that such an imposition would be unfair. However, verification of 
the utility of the skill is an important factor in establishing the value of the 
skill. Like the first aid allowance, at clause 20.4 of the award, the employee 
must hold a certificate as one of the prerequisites prior to the first aid 
allowance becoming applicable. A similar requirement should apply to 
proposed clause 20.10.

4. The amended claim could have far-reaching consequences and include an 
employee who speaks a language other than English only once or twice or a 
person who can recite a single phrase in a language other than English (for 
example “what is your name?”), in the course of the employee’s normal duties 
who would then be entitled to the allowance on a weekly basis. Such a 
consequence would be inconsistent with section 134(f) of the Act.

5. There are issues with how usage of the language would be monitored given 
that a significant number of employees under the SCHADS Award in the social 
and community and home care stream work one-to-one with clients.

6. This claim adds to the complexity of an already very complex award (for 
example, the resulting effect of this claim could be employers issuing 
directions to employees (who can speak a language other than English) to not 
speak in the other language to ensure that the allowance is only payable in 

                                                                                                                                                  

841 AFEI Submission, 8 April 2019 at paras 31 – 33; AFEI Submission, 22 May 2019 at paras 13 – 15, 18 – 19.






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circumstances where the second language is actually required by the employer. 
In addition, the extra formalities, obligations and administrative burden on 
employers are inconsistent with section 134(g) of the Act in regard to the need 
to ensure a simple, easy to understand, stable and sustainable modern award 
system.

7. The evidence does not establish that the proposed clause 20.10 is necessary to 
achieve the modern awards objective.

11.4 THE EVIDENCE

[1197] The ASU submits that the Commission should find that employers require the use of 
community language skills and that most employees who use those skills do not have 
accreditation.

[1198] The ASU submits that the evidence before the Commission demonstrates that the 
SACS sector has relied on the community language skills of its employees without requiring 
accreditation for a significant period of time and that it would be unfair to require 
accreditation as a condition for payment of the allowance, since employers have actively 
sought out accredited employees. Furthermore, it contends that any requirement for 
accreditation would add undue administrative burden on the employer.

[1199] The ASU relies on the following evidence in respect of the community language 
claim: 

 witness Statement and oral evidence of Dr Ruchita842

 witness Statement and oral evidence of Ms Nadia Saleh843

 witness statement and oral evidence of Lou Bacchiella,844 and

 witness statement and oral evidence of Natalie Lang.845

[1200] The evidence relied upon by the ASU is summarised below. 

Dr Ruchita846

[1201] Dr Ruchita is a Family Violence Case Manager at inTouch Multicultural Centre 
Against Family Violence (inTouch) who, in addition to English, speaks Hindi, Punjabi and 
Urdu. Dr Ruchita has worked in the family violence sector for almost 10 years.

                                               

842 Exhibit ASU11 – Witness Statement of Dr Ruchita, 14 February 2019; Transcript, 16 April 2019 at PN526-PN588.
843 Exhibit ASU12 – Witness Statement of Nadia Saleh, 14 February 2019; Transcript, 16 April 2019 at PN592-PN644.
844 Exhibit ASU14 – Witness Statement of Lou Bacchiella, 13 February 2019; Transcript, 16 April 2019 at PN709-PN792.
845 Exhibit ASU13 – Witness Statement of Natalie Lang, 18 February 2019; Transcript, 16 April 2019 at PN648-PN700.
846 For summary of Dr Ruchita’s evidence, see generally Background Paper, 4 yearly review of modern awards – Award 

stage – Group 4 – Social, Community, Home Care and Disability Services Industry Award 2010 – Substantive Claims, 4 

December 2019 at [11] – [17].  






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[1202] At [14] of her statement Dr Ruchita says: 

‘In my previous role as a Bilingual Facilitator, I liaised with many Indian communities in Hindi 
and Punjabi. Family violence is a highly sensitive and taboo topic in the Indian community. As 
such, establishing trust with these communities before we provide information about these 
topics is important. It is also important to understand the cultural dynamics of these 
communities. I felt that speaking to the communities in their languages enabled me to build 
connections and establish trust more readily. If you are talking to someone in their language, it 
is much easier for them to understand what you are saying. Even if they do not accept what I 
am saying, I can read the reasons for their reluctance more readily and engage with them in a 
meaningful way. It would not have been easy to build trust if someone who did not speak 
Hindi or Punjabi liaised with these communities. It would also not be feasible to engage an 
interpreter for this type of worker because it requires spontaneous conversation and would be 
too expensive.’ 

[1203] As to professional interpreters and translators, Dr Ruchita said that the work of 
interpreters was very important at inTouch, however there were also some disadvantages with 
using interpreters, namely:847

1. It is time consuming for inTouch to engage an interpreter each time they 
needed to speak with clients, especially given that a Family Violence Case 
Manager can provide phone and face-to-face support for up to 15-20 clients a 
day. Further, Dr Ruchita said that in using an interpreter, the meaning of the 
information exchanged could get lost in translation, oftentimes because the 
interpreter does not have the legal vocabulary to properly explain the process 
and/or concepts. As a result, Dr Ruchita said that she cannot be certain that her 
clients have been properly informed.

2. Dr Ruchita said that interpreters are not experts in family violence and that 
while they can interpret the language, they are unable to understand the client’s 
circumstances that would enable the client to be effectively supported. 
Furthermore, clients feel more comfortable and trusting of someone they know 
and regularly speak to.

3. Some clients are reluctant to engage with interpreters, particularly if their 
language is spoken by very few communities in Australia as the interpreter can 
be known to the client or be from their community.

4. The quality of interpreters can vary. Dr Ruchita described engaging 
interpreters who provided their opinion in addition to providing their 
interpreting services.

[1204] The fact that Dr Ruchita was multilingual was a core part of her role.848

Ms Nadia Saleh849

                                               

847 Exhibit ASU11, Witness Statement of Dr Ruchita, 14 February 2019 at paras 19 – 22.
848 Transcript, 16 April 2019, cross-examination of Dr Ruchita at PN567-PN577.






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[1205] Ms Nadia Saleh is a Manager of Child, Youth and Family Services at the Riverwood 
Community Centre; in addition to English, she speaks a number of Arabic languages. 

[1206] The Riverwood Community Centre is a non-government organisation which provides 
a range of services to residents in Riverwood, in south-west Sydney, and surrounding suburbs. 
At [17] of her statement Ms Saleh notes that more than half of the population of Riverwood 
were born outside of Australia: 62% of the population speak English, only about 30% spoke 
English at home.850

[1207] Ms Saleh said that she has been using her community language, Arabic, for her entire 
career and currently ‘nearly every day, but not all day’851 at work. She described Arabic as a 
common language for people from a wide range of countries including Algeria, Egypt, 
Morocco, Saudi Arabia, Sudan, Somalia, Syria, Jordan, Iraq, Lebanon and Yemen, all of 
which have communities living in the Riverwood and surrounding areas and who access 
services at the Riverwood Community Centre. As such, Ms Saleh said that Arabic is an 
integral or essential part of her job,852 and that she used it according to the needs of the 
community and the individual.853

[1208] Ms Saleh also said that she can be called upon by other services and government 
agencies to provide translating services. She said that while telephone interpreters are 
available for this work, staff members of these agencies prefer to refer clients to an Arabic-
speaking person the client is already familiar with. 

[1209] Ms Saleh said that she manages a team of 25-30 people who use their community 
language skills in the same way she does.854

[1210] As to interpreters, Ms Saleh said that while they played ‘an important and vital role’ in 
the centre’s service, government funding is very restricted and does not always cover the cost 
of interpreters:

‘We would not be able to meet the needs of our community, if we did not have a staff with 
diverse community language skills. But even this diversity does not meet our needs one 
hundred percent. We often rely on community language speakers from other services at the 
Riverwood Community Centre to help us. For instance, other services at the Riverwood 
Community Centre often ask me to help them by using my community language skills. For 
instance, it is common for the Aged Services team to ask for my help working with Arabic-
speaking clients who have trouble speaking English.

                                                                                                                                                  

849 For summary of Ms Saleh’s evidence, see generally Background Paper, 4 yearly review of modern awards – Award stage 
– Group 4 – Social, Community, Home Care and Disability Services Industry Award 2010 – Substantive Claims, 4 

December 2019 at [18] – [25].  
850 Also see Transcript, 16 April 2019, cross-examination of Nadia Saleh at PN623.
851 Transcript, 16 April 2019, cross-examination of Nadia Saleh at PN610.
852 Transcript, 16 April 2019, cross-examination of Nadia Saleh at PN613.
853 Transcript, 16 April 2019, cross-examination of Nadia Saleh at PN613, PN620, PN622.
854 Exhibit ASU12 – Witness Statement of Nadia Saleh, 14 February 2019 at para 30.






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There is a real need in my organisation for workers with practice skills and community 
languages. When we advertise new jobs, we specify that community language skills are 
desirable.’855

[1211] And further ‘the use of professional translation and interpretation services can make it 
more complicated for us to do our job due to cultural barriers and sensitive issues’.856

[1212] At [36] of her statement Ms Saleh says:

‘Being able to speak a community language also means I am able to engage with community 
members who would otherwise be hard to reach. These are vulnerable people who often have 
multiple barriers affecting their ability to seek assistance. As a bilingual support worker I can 
gain access that would otherwise be unavailable, especially with those very critical and 
sensitive cases involving domestic and family violence. I am able to raise and address these 
issues with vulnerable community members in a way that would not be possible for someone 
without knowledge of the language and culture’. 

Ms Natalie Lang857

[1213] Ms Natalie Lang is the Branch Secretary of the ASU in its NSW and ACT Branch. 

[1214] At [10] of her statement Ms Lang says: 

‘Not-for-profit community organisations employ highly skilled staff to deliver their 
programmes. In many instances the individuals, families and communities to which those 
services are being delivered include people who do not speak, read or write in English and/or 
may have other communication issues which means that their access to essential services is 
seriously compromised or impossible. This skill is often enhanced by a deep understanding of 
cultural issues associated with the language(s) in which the employee is proficient. Because of 
the nature of the work that is done by employees in the community sector, it is therefore very 
common for organisations to seek to employ people who are bilingual, even if the advertised 
position description to be filled does not specify a requirement for this skill.’

[1215] We note here that the above statement is not much more than generalised assertion. It 
lacks particularity and fails to provide a proper basis for the assertions made.

[1216] Ms Lang then refers to ‘some examples of the use of community languages’ amongst 
the ASU’s membership by reference to the circumstances of 3 individuals: ‘Collin’, ‘Emilie’ 
and ‘Karim’.858 The individuals referred to in Ms Lang’s statement did not give evidence in 
the proceedings. Ms Lang’s description of the work undertaken by these individuals and the 
comments attributed to them is hearsay. We propose to give this part of Ms Lang’s evidence 
very little weight. 

                                               

855 Exhibit ASU12 – Witness Statement of Nadia Saleh, 14 February 2019 at paras 31 – 32.
856 Exhibit ASU12 – Witness Statement of Nadia Saleh, 14 February 2019 at para 37.
857 For summary of Ms Lang’s evidence, see generally Background Paper, 4 yearly review of modern awards – Award stage 

– Group 4 – Social, Community, Home Care and Disability Services Industry Award 2010 – Substantive Claims, 4 

December 2019 at [33] – [36].  
858 Exhibit HSU13 – Witness Statement of Natalie Lang, 18 February 2019 at paras 12 – 14. 






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Mr Lou Bacchiella859

[1217] Mr Lou Bacchiella is the CEO of Metro Assist, formerly the Migrant Resource Centre, 
in the inner-west suburbs of Sydney. The Centre services culturally and linguistically diverse 
(CALD) communities with services and programs in migrant and refugee settlement, family 
services, financial inclusion, employment support and health awareness. 

[1218] The centre employs 71 staff who speak around 24-25 languages,860 with the 3 most 
common being Chinese, Hindi and Arabic. At [12] of his statement Mr Bacchiella says: 

‘Clients accessing our services often have complex needs. Our support for the client is greatly 
enhanced when we are able to engage with the client in their own language. The complex case 
work that is involved in migrant settlement and family services requires community language 
speakers and we engage with clients in their language to try and build rapport and trust. This is 
part of the fundamentals of case work. Our clients have experienced trauma such as being 
evicted or being separated from family and the fact that we can jump in and help them straight 
away is hugely satisfying for clients. Clients often have to divulge deeply private and personal 
information and doing so in their own language makes this process much less confronting.’861

[1219] He described the use of community languages as being an essential and integral part of 
the job862 as support for the client is greatly enhanced when workers can engage with the 
client in their own language.

[1220] At [18] – [22] of his statement Mr Bacchiella deals with interpreters:

‘We engage interpreters where necessary, but they are costly and not suitable in all situations. 

There are a number of interpreting services available, but we need to pay to use them. Our 
latest funding contracts stipulates that interpreter services need to come out of our 
organisational budget. This means that using an interpreter is a burden to the organisation. 
Some matters are too simple for an interpreter to be practical. For instance, an in-house 
language speaker can assist a client to fill in a form or help with documentation immediately. 
We can solve these problems in minutes. Otherwise, we would need to send the 
documentation to an interpretive service. 

It is often unsuitable to use an interpreter while doing casework. For example, when 
performing case work in someone’s home, it is extremely difficult introducing a third party 
interpreter. You need to book the interpreter to turn up at the same time as the case worker. 
Usually, you cannot choose your interpreter. It is likely that the interpreter that shows up will 
not have a rapport with the client. Then, you must expect the client have their intimate details 
relayed through a third party. Building a rapport with a client is a fundamental of casework. It 
means your client can open up and get the support they need. 

Metro Assist do a lot of community education and engagement. We are going out and talking 
to different ethnic groups having the people with the right language skills is critical and is 

                                               

859 For summary of Mr Bacchiella’s evidence, see generally Background Paper, 4 yearly review of modern awards – Award 
stage – Group 4 – Social, Community, Home Care and Disability Services Industry Award 2010 – Substantive Claims, 4 

December 2019 at [26] – [32].  
860 Transcript, 16 April 2019, cross-examination of Mr Bacchiella at PN718.
861 Exhibit ASU14 – Witness Statement of Lou Bacchiella, 13 February 2019 at para 12.
862 Transcript, 16 April 2019, cross-examination of Lou Bacchiella at PN725.






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certainly not something we can afford to pay interpreters to do. Interpreters are not suited to 
community engagement work such as the health awareness programs. Interpreters are a clunky 
way to engage with groups. Often, using an interpreter places an onerous burden on the client 
because they have to wait for service. It is also certainly off putting for them to seek help and 
talk about very private matters with the interpreter present. If you have an in-house language 
speaker, you can assist your client more quickly and effectively, and they are more inclined to 
engage with the service. 

The biggest benefit of having bi-lingual workers is that client is more open to discussing their 
issues with a case worker directly in their language rather than having a third party interpreter 
in the room. Clients often refuse to have an interpreter in the room. This is particularly 
common with clients from smaller emerging communities concentrated in specific suburbs. 
These communities will have tight knit networks. Clients will feel uneasy with an interpreter, 
because they are worried about their privacy. Our caseworkers have the training to put these 
clients at ease and build rapport – but this is most effective if they speak the client’s language. 
Caseworkers are always conscious of privacy and confidentiality requirements.’ 

[1221] Mr Bacchiella addresses the benefits of a community language allowance in the award 
at [23] – [28] of his statement:863

‘The nature of the community sector means that we are underpaid and under-resourced. 

I am only able to offer my employees the Award rates of pay and conditions due to funding 
restraints. This is because our funding only covers the SCHDS Award pay and conditions. 
This means that Metro Assist does not currently offer any financial reward to employees for 
using or attaining community language skills. However, if the Award changed, our funders 
would be obliged to increase funding to reflect the Award to cover the cost. 

I find that it difficult to recruit and retain experienced and qualified staff with the appropriate 
language skills at the at the Award rate of pay. We are always competing with government, 
particular FACS, for employees and people will leave the community sector for a better
paying job at FACS. I understand that the Commonwealth and New South Wales governments 
pay an allowance where bilingual staff use their skills at work. 

I am concerned that I am not able to provide the necessary services as client cases, especially 
become more complex. We are also precluded from tendering for some programs because 
those programs require an employee with a relevant master’s degree. It is hard to attract 
someone with those qualifications at the rates of pay I can offer. It is nearly impossible to find 
someone with the appropriate qualifications and a community language skill. 

We need to increase pay and conditions to attract staff to our sector. If we can acknowledge 
the cultural and language skills through an allowance, this will benefit the sector as an 
enticement to come into these roles. The allowance would help me recruit and retain skilled 
and qualified staff. I also believe it would make the Social and Community Sector more 
attractive to students looking to work in community services. The benefit to my organisation 
of having a community languages paid an allowance under the Award would far outweigh the 
cost. 

I have been shown a copy of the draft variation proposed by the Australian Services Union. I 
support the Fair Work Commission making the proposed variation to the Award.’ 

                                               

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[1222] We note here that much of this aspect of Mr Bacchiella’s evidence is really in the 
nature of a submission, rather than evidence.

[1223] The ASU did not identify the particular findings it sought based on the evidence. It 
appears from the ASU’s submission that the following findings are advanced:

1. The ability to communicate in more than one language is a skill that is highly 
sought after in potential employees in the social and community sector. It is 
very common for organisations to seek to employ people who are bilingual, 
even if the advertised position description to be filled does not specify a 
requirement for this skill.864

2. Employers in the social and community sector actively seek out bilingual 
workers to ensure that they can service their diverse communities. Engaging 
bilingual workers is more efficient and cost-effective than using translation 
services or fee-for-service interpreters.

3. The value of bilingual workers in the community sector is recognised as 
providing a superior professional service to clients and the community, 
particularly where a community organisation works with complex and 
traumatised clients and communities.865

4. Community organisations make extensive use of professional interpreters and 
translators to assist people who find themselves unable to communicate 
effectively with essential community services. Most community organisation 
access interpreters through external interpreting services or by engaging 
individual interpreters on a fee for service or casual basis.866

5. While there are times where professional interpreters and translators must be 
used, it is a far more efficient for social and community sector organisations to 
utilise bilingual staff for much of their work. Interpreters are expensive. It is 
often time consuming, or even impossible, to arrange a professional interpreter 
for a meeting or appointment.867

6. In many circumstances it is undesirable to use an interpreter, because they are 
not usually specially trained social and community workers.868

7. It is common for family and other community members to be asked to assist 
clients. Sometimes, unqualified employees who speak a required language, 
such as administrative staff, are asked to interpret.869

                                               

864 ASU Submission, 18 February 2019 at para 39.
865 Ibid at para 42.
866 Ibid at para 43.
867 Ibid at para 45.
868 Ibid at para 46.
869 Ibid at para 50.






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8. Employers in the social and community sector report difficult finding 
adequately skilled staff.870

[1224] The evidence relied upon in support of these proposed findings was limited to:

 2 employees who work in multicultural-focussed businesses871

 1 employer from a similar organisation (Metro Assist, formerly known as Metro
Migrant Resource Centre),872 and

 Ms Lang, an ASU official.873

[1225] In relation to Ms Lang’s evidence, much of it was either hearsay or in the nature of a 
general, unparticularised assertion. 

[1226] In our view the evidence relied upon cannot properly be said to be representative of 
the industry covered by the SCHADS Award. Nor does it provide a sufficient basis to make 
good the findings advanced by the ASU in support of the claim. 

[1227] We accept that instances may arise where some employees use their knowledge of 
languages other than English in the course of their duties, but the evidence advanced does not 
enable a proper assessment of the extent to which such skills are utilised across the industry, 
much less establish that the skills are vital to the social and community sector generally.

[1228] While certain employers may value the ability of an employee or prospective 
employee to speak a community language other than English, the evidence does not provide a 
basis for finding that the use of a community language is an issue that arises across the social 
and community sector or even a substantial part of the sector.

11.5 CONSIDERATION

[1229] As we have mentioned, variations to modern awards must be justified on their merits. 
Significant changes where merit is reasonably contestable should be supported by an analysis 
of the relevant legislative provisions and, where feasible, probative evidence. The ASU case 
has comprehensively failed to meet these requirements. There is scant analysis of the relevant 
legislative provisions and the evidentiary case falls well short of what is required. 

[1230] The variation proposed is not one which is obvious as a matter of industrial merit such 
that it is unnecessary to advance probative evidence in support. Allowances payable to 
employees who are required in the course of their work to speak a language other than 
English are not a common feature of the modern awards system. Only 6 modern awards 
contain a language allowance. On that basis, there should be a more compelling reason for 
including such a term in a modern award.

                                               

870 Ibid at para 52.
871 Dr Ruchita and Ms Nadia Saleh.
872 Mr Lou Bacchiella.
873 Ms Natalie Lang.








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[1231] The ASU has failed to advance a sufficient merit case for the variation proposed. In 
addition we note that:

 there is no explanation as to how the ASU arrived at the quantum of the allowance 
sought, nor sufficient evidence that would allow the Commission to make a proper 
assessment as to the value of the skill, and

 the proposed variation does not include any requirement for employees to have their 
community language skill accredited by an appropriate body as a precondition of 
receiving the allowance. The absence of any requirement for accreditation has the 
consequence that there is no objective basis for an employee to be assessed as 
having the skill, and no capacity or process for the employer to determine whether 
the employee has the skill.

[1232] Further, the entitlement to the proposed allowance is triggered where an employee 
‘uses’ a second language or sign language to provide services to particular individuals. ABI 
submits the trigger for an allowance of this type should be the employer ‘requiring’ or 
‘directing’ an employee to use their second language, rather than the employee simply 
deciding to use it. We agree with ABI.

[1233] We dismiss the ASU’s claim.

[1234] For completeness we note that the extent to which the current classification structure 
already contemplates the use of language skills was contested in the proceedings. Given the 
view we have taken of the evidence and merits it has been unnecessary to resolve that 
controversy. If this claim is reagitated that matter should be determined as a threshold issue.

12 EQUAL REMUNERATION ORDER ISSUE

12.1 BACKGROUND

[1235] On 26 November 2020, we issued a Statement874 (the November 2020 statement) in 
AM2020/100 relating to the equal remuneration order (ERO) issued on 22 June 2012 under 
Part 2-7 of the Act in the social, community and disability services industry throughout 
Australia.

[1236] The existence of the ERO is noted in the SCHADS Award at clause 15:

‘NOTE: 1. A transitional pay equity order taken to have been made pursuant to item 30A of 
Schedule 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 
2009 (Cth) has effect in accordance with that item. Transitional pay equity orders operate in 
Queensland as provided for in items 30A (6) and (7).

2. An equal remuneration order [PR525485] also applies to employees in the classifications in 
Schedule B and Schedule C of this modern award.’

[1237] From 1 December 2020, the final instalment from the ERO (modern award rate plus 
the final equal remuneration payment) applies for Social and Community Services and Crisis 
                                               

874 [2020] FWCFB 6333.






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Accommodation classifications, which are found in Schedules B and C of the SCHADS 
Award.

[1238] In the November 2020 statement we expressed the provisional view that the final rates 
of pay from the ERO should be incorporated into Schedules B and C of the SCHADS Award. 
Interested parties were given an opportunity to make submissions in relation to the 
provisional view. Submissions were received from:

 AFEI on 21 December 2020

 Ai Group on 21 December 2020 and 20 January 2021

 ASU on 15 January 2021

 HSU on 21 December 2020 and 19 February 2021

 NDS on 21 December 2020.

[1239] NDS agrees with the provisional view but submits that the draft determination does 
not provide for any cross referencing between clause 15 and the proposed insertions at 
Schedules B and C. It submits that this creates a problem because the final rates, which 
constitute part of the ordinary rates of pay, are not readily visible for a reader of the SCHADS 
Award without prior knowledge of the ERO. NDS submit that this could be resolved by 
replacing the tables showing minimum weekly wages at clause 15 with the draft tables 
proposed as the new Schedules B.9 and C.5. In the alternative they submit that the current 
note could be amended to read as follows:

‘An equal remuneration order [PR525485] also applies to employees in the classifications in 
Schedule B and Schedule C of this modern award, and the final rates of pay which form an 
employee’s ordinary rate of pay are set out in Schedules B.9 and C.5.’875

[1240] The HSU and ASU both support the provisional view. 

[1241] However, the ASU submits that the rates set out in the draft determination should be 
amended to include the wage rates that apply to employees covered by the Transitional Pay 
Equity Order (TPEO). These are special pay rates for some SACS and crisis accommodation 
employees in Queensland who are employed by non-constitutional corporations that existed 
immediately before 1 January 2010:

‘Employers covered by the TPEO are also covered by the Equal Remuneration Order if they're 
in the social and community services or crisis accommodation streams of the Social and 
Community Services Award. The higher of the two rates applies. The consequence of this is 
that the wage schedules proposed by the Commission do not apply to all employees covered by 
Schedules B and Schedule C. Some employees will be entitled to a higher rate of pay that 
applies due to the operation of the TPEO.

This should be reflected in the table of pay rates published by the Fair Work Commission.’876

                                               

875 NDS Submission, 21 December 2020 at para 11.
876 ASU Submission, 15 January 2021 at paras 7 – 8.






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https://www.fwc.gov.au/documents/awardmod/variations/2020/am2020100-sub-hsu-220221.pdf
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[1242] We do not propose to include the TPEO rates as suggested by the ASU. We will retain 
note 1 to clause 15 which draws attention to the TPEO for those employees who may still be 
covered by it.

[1243] The ASU also agree with the submission of the NDS that the current note in clause 15 
should be amended. The wording suggested by the ASU is:

‘An equal remuneration order [PR525485] and a transitional pay equity order also apply to 
employees in the classifications in Schedule B and Schedule C of this modern award, and the 
final rates of pay which form an employee’s ordinary rate of pay are set out in Schedules B.9 
and C.5.’877

[1244] AFEI and Ai Group both oppose the provisional view. 

[1245] AFEI advances 4 reasons for their objection as follows:878

1. Schedules B and C of the SCHADS Award are operative terms of the Award. 
Incorporating the equal remuneration order rates into Schedules B and C 
would therefore result in the equal remuneration order rates becoming 
operative terms of the Award. That outcome would be inconsistent with the 
conclusion reached by the five-member Full Bench that the order should stand 
alone.

2. In reaching its conclusion that the order should stand alone, the Full Bench in 
its February 2012 Decision considered the positions of the parties. The five 
member Full Bench’s conclusion that the order should stand alone was not 
expressed as being solely due to the equal remuneration order containing 
transitional provisions. The fact that the transitional provisions have come to 
an end are not a sufficient basis to alter the conclusion reached by the Full 
Bench in its February 2012 Decision.

3. The draft determination does not include all terms of the order which continue 
in effect from 1 December 2020. The proposed variation could therefore give 
rise to claims in relation to the independent operation of the modern award 
terms. Even if the award contained the full terms of the equal remuneration 
order, this would result in unnecessary overlapping entitlements.

4. The equal remuneration order was made under s302 of the Act, being separate 
statutory powers to those for making or varying a modern award. It is therefore 
appropriate that the entitlement to the equal remuneration rates arises solely 
from that order.

[1246] AFEI submit that the note at clause 15 could be amended to draw the reader’s 
attention to clause 6 of the ERO:

                                               

877 ASU Submission, 15 January 2021 at para 9.
878 AFEI Submission, 21 December 2020 at para 4.






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‘An equal remuneration order [PR525485] also applies to employees (other than SACS Level 1) 
in the classifications at Schedule B and C. From 1 December 2020, Clause 6 of the equal 
remuneration order requires a specified percentage amount to be paid in addition to the rates in 
Clause 15 of the Award.’879

[1247] In their submission of 21 December 2020, Ai Group opposed the provisional view. 
The reasons for Ai Group’s objection are set out in a further submission dated 20 January 
2021. Ai Group’s primary concern appears to be that the proposed variation would alter the 
legal obligations imposed upon employers to whom the Award applies and to employers who 
are covered by the Award but subject to an enterprise agreement, they submit: 

‘The extent of such concerns, however, depend in part upon whether the amendments to 
Schedule B and C to the SCHCDS Award will create award derived entitlements to be paid the 
relevant rates, or whether they will merely provide an articulation of the rates that are required 
to be paid pursuant to the combined operation of the Award and the ERO. It appears to us that 
the proposed award provisions would require the payment of the new rates. That is, the clause 
would not merely serve to make parties aware of the rates that are payable pursuant to the 
ERO.

The basis for our opposition to the proposed course of action can be characterised as arising 
firstly from a concern that the Full Bench does not have power to make the specific variations 
proposed and secondly, from a contention that the Full Bench should not be satisfied that the 
variation is necessary to meet the modern awards objective or, to the extent that it may be 
relevant, the minimum wages objective.’880

[1248] In support of their contention that we should not be satisfied that the variation is 
necessary to meet the modern awards objective or, to the extent that it may be relevant, the 
minimum wages objective, Ai Group advances the following considerations:881

 there are difficulties that will flow from the interaction between the current terms of 
the SCHADS Award and the proposed variations

 the absence of any provision enabling employers to absorb over-award payments 
into the proposed rates, in a manner comparable to what is currently provided for 
under the ERO

 the potentially detrimental, and arguably unfair, effect on employers covered by 
enterprise agreements of increasing award derived rates flowing from s.206 of the
Act and the potential for the variation to discourage employers from engaging in 
collective bargaining, and

 the absence of any articulated justification for why the proposed variation is 
necessary to ensure that the meets the Award modern awards objective and the lack 
of any evidentiary material that would enable a proper consideration of factual 
matters relevant to the matters identified in s.134. This point is pertinent given the 
merits of the proposal are, for reasons we identify in this submission, contestable

                                               

879 AFEI Submission, 21 December 2020 at para 5.
880 Ai Group Submission, 20 January 2021 at paras 5 – 6.
881 Ai Group Submission, 20 January 2021 at para 8.






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and because the proceedings leading to making of the ERO did not necessitate or 
otherwise involve the Commission taking into account whether the rates prescribed 
in the ERO are necessary to ensure that the Award achieves the modern awards 
objective.

[1249] Ai Group advances an alternative approach, as follows:

‘Despite Ai Group’s articulated concerns about the proposed amendment of the Award to 
require payment of rates higher than those specified in clauses 15 – 17, we recognise that there 
is merit in further assisting parties to identify the rates of pay that are required to be paid as a 
consequence of the combined operation of the instrument and the ERO.

To this end, we suggest that a less contentious course of action may be to include a provision 
in the nature of a ‘note’ in the Award that both refers the reader to the ERO and potentially 
contains a link to a document prepared and update by the Commission setting out the rates that 
are required to be paid as a product of the operation of ERO. The crucial point is that any such 
note should be framed in a manner that makes it clear that the payment of these amounts is not 
an award derived obligation. 

Such a provision would, in our view, be permissible under s. s.142, given that in practice a 
party applying the Award would need to be aware of such rates in order to apply various 
provisions of the Award in a manner that conforms with the requirements of the ERO. 

This approach would be somewhat analogous to the inclusion of various notes now included in 
awards referencing or otherwise alerting a reader to provision of the Act that are in some way 
relevant to matters dealt with under awards. Alternatively, we propose that the proposed 
variations should not be made at this stage and that such matters potentially be given further 
consideration in the context of the foreshadowed proceedings relating to the redrafting of the 
instrument in plain language.’882

[1250] In their reply submission dated 19 February 2021, the HSU opposes the alternate 
approach proposed by Ai Group and submit that ‘such an approach is no substitute for a clear, 
easily understandable award setting out of the rates applicable to employees covered by 
Schedules B and C of the SCHCDSI Award.’

12.2 CONSIDERATION

[1251] We have decided to depart from our provisional view. It seems to us that there is a 
reason to doubt our power to include the ERO rates in a way that creates an award derived 
entitlement to be paid the relevant rates.

[1252] We turn first to the submissions of Ai Group and AFEI in relation to the 
Commission’s power to vary the award to include the rates at Schedules B and C. 

[1253] AFEI notes that when the ERO was made the Full Bench decided that the order should 
‘stand alone’ from the SCHADS Award and our provisional view would be inconsistent with 
that conclusion. Ai Group submits that ‘s 139 of the Act may not permit an award to include 
terms that are essentially about rates that are a product of an ERO’. 

                                               

882 Ai Group Submission, 20 January 2021 at paras 45 – 48. 






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[1254] As mentioned by AFEI the 1 February 2012 decision of the Full Bench in the Equal 
Remuneration Case – 2010- 2012 addressed this issue:

‘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.’883

[1255] The interaction between Part 2-7 (dealing with EROs) and Parts 2-3 and 2-6 (dealing 
with modern awards and modern award minimum wages) was considered by the Full Bench 
in the Equal Remuneration Decision 2015:884

‘The third limitation concerns the power to vary a modern award.

Ai Group and ACCI and others contend that while the power to make an equal remuneration 
order is expressed in broad terms (i.e. ‘make any order it considers appropriate’) this should 
not be interpreted as extending to the making of an order varying a modern award. As Ai 
Group put it:

‘Put simply, Ai Group contends that an ERO and modern awards are intended by the 
FW Act to constitute different forms of industrial regulation which are aimed at 
achieving different and discrete purposes’.

We agree. As we observed earlier (at [42]), the relevant legislative context may operate to 
limit an expression of wide possible connotation. In the context of the FW Act Part 2–3 (and 
Part 2–6 to the extent it deals with modern award minimum wages) constitutes a code for the 
making and variation of modern awards. It is clear from the legislative context that the making 
of equal remuneration orders under Part 2–7 is intended to be quite separate from modern 
awards, which form part of the safety net of minimum terms and conditions under the FW Act.

As a general proposition where a particular procedure is designated to achieve something 
other procedures are impliedly excluded, reflected in the maxim expressum facit cessare 
tacitum.

In Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of 
Australia Gavan Duffy CJ and Dixon J said:

‘When the Legislature explicitly gives a power by a particular provision which 
prescribes the mode in which it shall be exercised and the conditions and restrictions 
which must be observed, it excludes the operation of general expressions in the same 
instrument which might otherwise have been relied upon for the same power.’

Similarly, in R v Wallis; Ex parte Employers Association of Wool Selling Brokers Dixon J 
said:

‘[A]n enactment in affirmative words appointing a course to be followed usually may 
be understood as importing a negative, namely, that the same matter is not to be done 
according to some other course.’

                                               

883 [2012] FWAFB 1000 at [78].
884 [2015] FWCFB 8200.






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In that case the Court held that a section of an Act that indicated the manner in which an 
arbitrator was to deal with a particular issue precluded the arbitrator dealing with that matter in 
accordance with more general procedures provided for in that Act.’885 (footnotes omitted)

[1256] Taking into consideration these decisions, we have decided that the more appropriate 
course is to include the ERO rates as a note to clause 15. This will provide an appropriate 
balance between giving employees easy access to their rates and the concerns raised by Ai 
Group and AFEI. 

[1257] In adopting this course we note that it is common ground that there is merit in assisting 
SCHADS employers and employees to identify the rates of pay that are required to be paid as 
a consequence of the combined operation of the SCHADS Award and the ERO. 

[1258] Consistent with ss.46 and s.13(3) of the Acts Interpretation Act 1901886 it is our 
intention that the information included in the new note will not be taken to be a part of the 
Award, it will however direct those covered by the award to the existence of the ERO. 

[1259] It is our provisional view that notes 1 and 2 be moved to the end of clause 15 and that 
note 2 be amended as follows:

Note 2: An equal remuneration order [PR525485] also applies to employees in the 
classifications in Schedule B—Classification Definitions—Social and Community Services 
Employees and Schedule C—Classification Definitions—Crisis Accommodation Employees
of this modern award. The final rates of pay resulting from the equal remuneration order are 
set out below. The ‘current hourly wage’ in the tables below form employees’ ordinary rates 
of pay for all purposes.

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 957.60 126 1206.58 31.75

                                               

885 Equal Remuneration Decision 2015 [2015] FWCFB 8200 at [231] – [237].
886 The Acts Interpretation Act 1901 applies as at 25 June 2009 in accordance with s.40A of the Act.






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Clause
Minimum 

weekly rate
Final Rate 
Percentage

Final 
weekly 
wage

Final 
hourly 
wage

diploma/advanced certificate)

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

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

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








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Clause
Minimum 

weekly rate
Final Rate 
Percentage

Final 
weekly 
wage

Final 
hourly 
wage

Classification $ % $ $

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

[1260] These proposed amendments will be included in the draft variation determination 
arising from this decision. Interested parties will be given an opportunity to comment on that 
draft variation determination and on our provisional view. 

13 NEXT STEPS

[1261] In this section we set out the next steps regarding the finalisation of the Tranche 2 
claims. 

[1262] At the outset we note that we have rejected the following claims:

1. UWU’s claim to vary clause 25.5(d) – change in roster (see [613] – [616])

2. ABI’s claim to vary clause 25.5(d)(ii) – change in roster (see [640] – [642])

3. UWU’s claim to insert a new clause 20.3(b) – clothing and equipment (see 
[903][903])








[2021] FWCFB 2383

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4. HSU’s claim to vary clauses 28.1(b)(ii) – (iii) – Overtime for part-time and 
casual employees (see [959] – [973])

5. UWU’s claim to vary clause 20.6 - Mobile phone allowance (see [1154] –
[1156])

6. ASU’s claim to insert a new clause 20.10 - Community language allowance
(see [1229] – [1233]), and

7. HSU claim that there be no client cancellation clause in the SCHADS Award
(see [792]– [794]). 

[1263] We have decided to make the following variations to the SCHADS Award:

Broken shifts and minimum engagements

[1264] In relation to broken shifts and minimum payment periods, at [368] – [377], [488] –
[491], we decided to:

1. Introduce a minimum engagement for part-time employees by deleting clause 
10.4(c) and inserting a new clause 10.5 to provide the following minimum 
payment for part-time and casual employees:

 social and community service employees (except when undertaking 
disability work) – 3 hours’ pay, and

 all other employees – 2 hours’ pay.

2. Vary clause 25.6 to:

 define a broken shift as a shift consisting of 2 separate periods of work 
with a single unpaid ‘break’ (other than a meal break) 

 clarify how this interacts with the new minimum payment clause, and

 to accommodate the occasional need for a broken shift to involve more
than 1 break subject to:

 a maximum of 2 unpaid ‘breaks’ in the shift

 the agreement of the employee, and 

 an additional payment.

[1265] A draft determination giving effect to these decisions is set out at Attachment P.

[1266] For the reasons set out in section 5.3 (see [547] – [556]), we have expressed the 
following provisional views:








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1. The additional remuneration for working a broken shift under clause 25.6 of 
the SCHADS Award should be an allowance calculated as a percentage of the 
standard weekly rate.

2. An employee working a ‘1 break’ broken shift under clause 25.6 should 
receive a broken shift allowance of 1.7% of the standard rate, per broken shift 
($17.10 per broken shift).

3. The broken shift allowance payable for a 2 break broken shift should be set at 
2.5% of the standard rate ($25.15 per broken shift).

4. An employee who is a day worker performing work outside of the ordinary 
span of hours (including as part of a period of work in a broken shift) is 
entitled to overtime for such work.

[1267] The draft determination at Attachment P also incorporates the above provisional 
views.

[1268] As to the UWU’s claim that the SCHADS Award be varied to specify that the ‘break’ 
in the broken shift ‘must exceed one hour’ we concluded that a cogent merit basis for the 
claim has not been made out. We also concluded that the variations we have determined in 
respect of limiting the number of breaks in a broken shift and in the minimum payment clause 
will change rostering practices, including the duration of a ‘break’ in a broken shift. In these 
circumstances we decided that any prescription as to the duration of the break is premature. 
The issue can be revisited after the changes we will make have been in operation for at least 
12 months.

[1269] As set out at [376] above, we also proposed to provide ABI (and any other interested 
party) an opportunity to present further arguments and evidence in support of its proposal for 
a one hour minimum engagement for staff meetings and training / professional development. 

Travel Time

[1270] A conference will be convened to seek the views of interested parties in relation to the 
issues raised at [587] – [589].

Roster changes

[1271] At [643] we expressed the view that there is merit in varying clause 25.5(d) to permit 
the variation of a roster by mutual agreement in circumstances where the variation is proposed 
by an employee to accommodate an agreed shift swap with another employee. It is our 
provisional view that clause 25.5(d)(ii) be varied as follows:

(ii) However, a roster may be changed at any time:

(A) if the change is proposed by an employee to accommodate an agreed 
shift swap with another employee; or

(B) to enable the service of the organisation to be carried on where another 
employee is absent from duty on account of illness, or in an emergency.








[2021] FWCFB 2383

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Remote response/recall to work

[1272] At [722] we concluded that it is necessary to introduce an award term dealing with 
remote response work and made the following general observations about such a term:

1 A shorter minimum payment should apply in circumstances where the 
employee is being paid an ‘on call’ allowance.

2. There is merit in ensuring that each discrete activity (such as a phone call) does 
not automatically trigger a separate minimum payment.

3. A definition of ‘remote response work’ or ‘remote response duties’ should be 
inserted into the Award. We note that ABI proposes the following definition:

‘In this award, remote response duties means the performance of the following 
activities: 

(a) Responding to phone calls, messages or emails; 

(b) Providing advice (“phone fixes”); 

(c) Arranging call out/rosters of other employees; and

(d) Remotely monitoring and/or addressing issues by remote telephone and/or 
computer access.’887

4. The clause should include a mechanism for ensuring that the time spent by an 
employee working remotely is recorded and communicated to their employer.

[1273] Our provisional view is that the minimum payment for remote response work 
performed between 6.00am and 10.00pm should be 30 minutes and the minimum payment 
between 10.00pm and 6.00am should be 1 hour. However, we note that there is an inter-
relationship between the minimum payment period and the rate of payment.

[1274] The rate of pay applicable to remote response work (as opposed to the minimum 
payment) is problematic. A conference will be convened to discuss the issues raised at [734] –
[738]).

Client cancellation

[1275] The ABI proposal is that clause 25.5(f) be replaced with the following provision:888

‘(f) Client cancellation

                                               

887 ABI Submission, 10 February 2020, p 58.
888 ABI Submission, 10 February 2020, p 70.






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100220.pdf


[2021] FWCFB 2383

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(i) Clause 25.5(f) applies where a client cancels or changes a scheduled home care or 
disability service, within seven days of the scheduled service, which a full-time or 
part-time employee was rostered to provide.

(ii) Where a service is cancelled by a client under clause 25.5(f)(i), the employer may 
either:

A. direct the employee to perform other work during those hours in which they 
were rostered; or

B. cancel the rostered shift.

(iii) Where clause 25.5(f)(ii)(A) applies, the employee will be paid the amount payable had 
the employee performed the cancelled service or the amount payable in respect of the 
work actually performed, whichever is the greater.

(iv) Where clause 25.5(f)(ii)(B) applies, the employer must either:

A. pay the employee the amount they would have received had the shift not been 
cancelled; or

B. subject to clause 25.5(f)(v) and (vi), provide the employee with make up time 
in accordance with clause 25.5(f)(vi).

(v) The make up time arrangement cannot be utilised where the employee was notified of 
the cancelled shift after arriving at the relevant place of work to perform the shift. In 
these cases, clause 25.5(f)(iv)(A) applies.

(vi) The make up time arrangement cannot be utilised where the employer is permitted to 
charge the client in respect of the cancelled service. In these cases, clause 
25.5(f)(iv)(A) applies.

(vii) Where the employer elects to provide make up time:

A. the make up time must be rostered in accordance with clause 25.5(a);

B. the make up time must be rostered to be performed within 3 months of the 
date of the cancelled shift;

C. the employer must consult with the employee in accordance with clause 8A 
regarding when the make up time is to be worked prior to rostering the make 
up time; and

D. the make up shift can include work with other clients or in other areas of the 
employer’s business provided the employee has the skill and competence to 
perform the work.

(viii) Clause 25.5(f) is intended to operate in conjunction with clause 25.5(d) and does not 
prevent an employer from changing a roster under clause 25.5(d)(i) or (ii).’

[1276] We have decided to vary the SCHADS Award in the manner proposed by ABI subject 
to 2 amendments:








[2021] FWCFB 2383

301

1. First, it is our provisional view that proposed clause 25.5(f)(v) be amended as 
follows:

(v) The make up time arrangement can only be used where the employee 
was notified of the cancelled shift at least after arriving at the relevant 
place of work to perform12 hours prior to the scheduled 
commencement of the shift. In these cases, clause 25.5(f)(iv)(A) 
applies.

2. Secondly, amending clause 25.5(f)(vii)(B) to delete ‘3 months’ and insert ‘6 
weeks’.

[1277] The use of the word ‘shift’ in this context may require further consideration. A shift 
suggests all of the work performed on a particular day, which may consist of a number of 
client engagements. 

[1278] We also note that ABI is to give further consideration to the ‘double dipping’ point 
(see [825] – [827] above). 

Clothing and equipment

[1279] At [882] we expressed the view that an Award variation is warranted to provide for the 
reimbursement of reasonable costs associated with the cleaning or replacement of personal 
clothing which has been soiled or damaged in the course of employment. 

[1280] We direct that the parties confer about the form of a suitable variation, reflecting the 
views expressed above. The Commission will convene a conference to facilitate those 
discussions.

Overtime for part-time workers 

[1281] Having reviewed the part-time employment terms in the SCHADS Award and having 
regard to the evidence and submissions, it is our provisional view that the Award be varied in 
2 respects:

 to make it clear that working additional hours is voluntary, and

 to introduce a mechanism whereby a part-time employee who regularly works 
additional hours may request that their guaranteed hours be reviewed and increased, 
and their employer cannot unreasonably refuse such a request.

[1282] A term giving effect to our provisional view has been included in the draft variation 
determination set out at Attachment P.

24-hour-care clause 

[1283] In the September 2019 Decision we found that 24-hour-care shifts are used in the 
industry and, while only a minority of employers used the 24-hour-care clause, those who do 
utilise the clause do so regularly.  We have not been persuaded to part from our provisional 
view and confirm our provisional view that a 24-hour-care provision be retained, but that the 








[2021] FWCFB 2383

302

existing clauses require amendment. We have decided to vary clauses 25.8 and 31.2 as 
follows:

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 8 hours of care during this period.

(b) An employer may only require an employee to work a 24-hour care shift by
agreement.

(c) The employee will be afforded the opportunity to sleep for a continuous period 
of 8 hours during a 24-hour care shift and employees will be provided with a 
separate room with a bed and clean linen, the use of appropriate facilities 
(including access to food preparation facilities and staff facilities where these 
exist) and free board and lodging for each night when the employee sleeps 
over.

(d) The employee will be paid 8 hours’ work at 155% of their appropriate rate for 
each 24-hour period.

(e) If the employee is required to perform more than 8 hours’ work during a 24-
hour care shift, that work shall be treated as overtime and paid at the rate of 
time and a half for the first 2 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. An employer and 
employee may utilise the TOIL arrangement in accordance with clause 28.2.

(f) An employee may refuse to work more than 8 hours’ work during a 24-hour 
care shift in circumstances where the requirement to work those additional 
hours is unreasonable.

31.2 Quantum of leave

For the purpose of the NES, a shiftworker is:

(a) an employee who works for more than 4 ordinary hours on 10 or more 
weekends during the yearly period in respect of which their annual leave 
accrues; or

(b) an employee who works at least eight 24-hour care shifts in accordance with 
clause 25.8; 

and is entitled to an additional week’s annual leave on the same terms and conditions.’

[1284] This variation has been included in the draft determination set out at Attachment P.








[2021] FWCFB 2383

303

Sleepover

[1285] We have decided to vary clause 25.7(c) – Sleepovers as follows:

(c) The span for a sleepover will be a continuous period of 8 hours. Employees 
will be provided with a separate room with a bed and clean linen, the use of 
appropriate facilities (including access to food preparation facilities and staff 
facilities where these exist) and free board and lodging for each night when the 
employee sleeps over.

[1286] This variation has been included in the draft variation determination set out at 
Attachment P.

Equal Remuneration Order issue 

[1287] We have decided to depart from our provisional view. The ERO rates will be set out 
as a note to clause 15. This will be included in the draft determination set out at 
Attachment P.

Further submissions

[1288] Interested parties are to file any submissions and evidence in respect of the draft 
variation determination at Attachment P and our provisional views referred to above by 
4.00pm (AEST) Tuesday, 22 June 2021.

[1289] Such submissions should also address the operative date of the proposed variations. 
Our provisional view is that an operative date of 1 October 2021 is appropriate.

[1290] All submissions must be sent by email in both PDF and word formats to 
amod@fwc.gov.au. 

[1291] A Conference will be convened on Thursday, 27 May 2021 at 10:30am (AEST) to 
discuss each of: 

 the travel time claim  

 remote response/recall to work, and 

 clothing and equipment claims. 

[1292] A Hearing will be listed on Wednesday, 30 June 2021. At this Hearing, interested 
parties will be provided with an opportunity to make oral submissions in response to the 
submissions and evidence received relating to the draft determination and the provisional
views referred to above. 

[1293] Notices of Listing for the Conferences and Hearings will be issued shortly. 






mailto:amod@fwc.gov.au


[2021] FWCFB 2383

304

PRESIDENT

Appearances:

S Bull for United Workers’ Union with N Dabarera.
L Doust for the Health Services Union with R Liebhaber.
B Ferguson for the Australian Industry Group with R Bhatt.
S Lo for the Australian Federation of Employers and Industries.
G Miller for the Australian Manufacturing Workers' Union.
M Pegg for National Disability Services.
M Robson for the Australian Services Union with J Nucifora and M Rizzo.
K Scott for Australian Business Industrial and the New South Wales Business Chamber; Aged 
and Community Services Australia and Leading Age Services Australia with M Tiedeman.

Hearing details:

2019.
Sydney, Melbourne:
October,11, 14–18;
December 5.

2020.
Sydney, Melbourne:
March 11;
July 9.

Printed by authority of the Commonwealth Government Printer

PR729073








[2021] FWCFB 2383

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ATTACHMENT A – EXHIBIT LIST

Set out below is the final and complete list of exhibits tendered at the Tranche 2 Full Bench 
hearings.889

EXHIBIT 
NO.

DATE 
TENDERED

TENDERED 
BY

DESCRIPTION
TRANSCRIPT 
REFERENCE

ABI & NSWBC

ABI1 16 Oct 2019 ABI
Hammondcare Residential Care 
and Hammondcare at Home 
enterprise agreement 2018

PN1378

ABI2 18 Oct 2019 ABI
Statement of Darren Mathewson 
12 July 2019

PN3392

ABI3 18 Oct 2019 ABI
Statement of Jeffrey Wright 12 
July 2019

PN3392

ABI4 18 Oct 2019 ABI

Schedule of ABI evidence not 
read in relation to Graham 
Shanahan, Deb Ryan, Scott 
Harvey, Wendy Mason and Joyce 
Wang

PN3393

ABI5 18 Oct 2019 ABI
Statement of Graham Shanahan 
28 June 2019

PN3392

ABI6 18 Oct 2019 ABI
Statement of Deb Ryan 12 July 
2019

PN3392

ABI7 18 Oct 2019 ABI
Statement of Scott Harvey 2 July 
2019

PN3392

ABI8 18 Oct 2019 ABI
Statement of Wendy Mason 17 
July 2019

PN3392

ABI9 18 Oct 2019 ABI
Statement of Joyce Wang 12 July 
2019

PN3392

ABI10 18 Oct 2019 ABI
Transcript of Cross-examination 
of Olav Muurlink 

PN3388

                                               

889 This list has been revised to accommodate any inconsistent referencing throughout the course of the proceedings. For 
completeness, this list also includes materials relevant to the community language allowance claim that were tendered 

during the Tranche 1 hearings.  








[2021] FWCFB 2383

306

ABI11 18 Oct 2019 ABI
Transcript of cross-examination 
of Scott Quinn

PN3389

ABI12 18 Oct 2019 ABI NDIA Support Catalogue PN3390

ABI13 18 Oct 2019 ABI
NDIA Efficient Cost Model 
Spreadsheet

PN3391

ABI14 11 Mar 2020 ABI
ABI Supplementary Submission 
and Questions of 11/03/2020

PN101

EXHIBIT 
NO.

DATE 
TENDERED

TENDERED 
BY

DESCRIPTION
TRANSCRIPT 
REFERENCE

Australian Federation of Employers & Industries

AFEI1 11 Mar 2020 AFEI AFEI Submissions and Questions PN107

EXHIBIT 
NO.

DATE 
TENDERED

TENDERED 
BY

DESCRIPTION
TRANSCRIPT 
REFERENCE

Ai Group

AIG1 15 Oct 2019 AIG
Rosters – subject to 
confidentiality order

PN515

AIG2 11 Mar 2020 AIG
Ai Group Supplementary 
Submissions and Questions, 
Background Paper 2

PN102

AIG3 11 Mar 2020 AIG Ai Group Background Paper 3 PN105

AIG4 16 Apr 2019 AIG
Handbook from Multicultural 
New South Wales Website

PN685

EXHIBIT 
NO.

DATE 
TENDERED

TENDERED 
BY

DESCRIPTION
TRANSCRIPT 
REFERENCE

Australian Services Union

ASU1 15 Oct 2019 ASU
Statement of Deborah Anderson 
dated 2 September 2019

PN980

ASU2 16 Oct 2019 ASU
Statement of Robert Steiner dated 
15 October 2019 

PN1549

ASU3 17 Oct 2019 ASU Endeavour Foundation Annual PN2026








[2021] FWCFB 2383

307

Report 2017-18

ASU4 17 Oct 2019 ASU Stanford Report PN2220

ASU5 18 Oct 2019 ASU
Schedule of employer objections 
to statements of Emily Flett and 
Augustino Encabo

PN3380

ASU6 18 Oct 2019 ASU
Statement of Judith Wright dated 
12 September 2019

ASU7 18 Oct 2019 ASU
Statement of Tracy Kinchin dated 
24 June 2019

ASU8 18 Oct 2019 ASU
Statement of Emily Flett dated 22 
September 2019

ASU9 18 Oct 2019 ASU
Statement of Richard Rathbone 
dated 13 February 2019

ASU10 18 Oct 2019 ASU
Statement of Augustino Encabo 
dated 13 February 2019

ASU11 16 Apr 2019 ASU
Statement of Dr Ruchita 14 
February 2019

PN539

ASU12 16 Apr 2019 ASU
Statement of Nadia Saleh 14 
February 2019

PN597

ASU13 16 Apr 2019 ASU
Statement of Natalie Lang 18 
February 2019

PN652

ASU14 16 Apr 2019 ASU
Statement of Lou Bacchiella 13 
February 2019

PN714

EXHIBIT 
NO.

DATE 
TENDERED

TENDERED 
BY

DESCRIPTION
TRANSCRIPT 
REFERENCE

Health Services Union

HSU1 15 Oct 2019 HSU
Statement of Mark Farthing dated 
15 February 2019

PN822

HSU2 15 Oct 2019 HSU
Further Statement of Mark 
Farthing dated 16 September 
2019

PN826

HSU3 15 Oct 2019 HSU
Statement of William Darren 
Elrick dated 15 February 2019

PN1068








[2021] FWCFB 2383

308

HSU4 16 Oct 2019 HSU
Statement of Heather Waddell 
dated 15 February 2019

PN1362

HSU5 16 Oct 2019 HSU
Statement of Christopher Friend 
dated 15 February 2019

PN1500

HSU6 16 Oct 2019 HSU
Parts of Christopher Friend’s 
statement not read

PN1844

HSU7 17 Oct 2019 HSU
Schedule of Fees For Home Care 
Services At Hammondcare

PN2570

HSU8 17 Oct 2019 HSU
Contract of Employment for 
Hammondcare Home Care At 
Home Employees

PN2591

HSU9 17 Oct 2019 HSU
Extract from Annual Financial 
Report 2017-2018 Report Of 
Hammondcare

PN2682

HSU10 17 Oct 2019 HSU
Extracts from the HammondCare 
Consolidated Financial Report for 
the year ended 30 June 2015

PN2701

HSU11 18 Oct 2019 HSU HSS Part time contract PN2864

HSU12 18 Oct 2019 HSU NSW HSS Fees PN2925

HSU13 18 Oct 2019 HSU
Full-time staff trial – Table of 
hours worked

PN2980

HSU14 18 Oct 2019 HSU CCO Schedule of rates PN3012

HSU15 18 Oct 2019 HSU
Same Day Cancellation Log –
subject to confidentiality order

PN3040

HSU16 18 Oct 2019 HSU

Community Care Options Home 
Care Agreement Template (the 
instruction sheet is only the first 
page)

PN3079

HSU17 18 Oct 2019 HSU Pro forma contract template PN3194

HSU18 18 Oct 2019 HSU
Baptist Care Agreement NSW & 
ACT Aged Care Enterprise 
Agreement 2017

PN3219

HSU19 18 Oct 2019 HSU

Baptist Care Commonwealth 
Home Support Programme 
(CHSP) pro-forma Service 
Agreement

PN3225

HSU20 18 Oct 2019 HSU Baptist Care Home Care PN3248








[2021] FWCFB 2383

309

Agreement (Level 1)

HSU21 18 Oct 2019 HSU
Baptist Care at Home Price Guide 
2019

PN3291

HSU22 18 Oct 2019 HSU
Baptist Care Annual Financial 
Report 

PN3301

HSU23 18 Oct 2019 HSU
CASS Financial Report 30 June 
2018

PN3455

HSU24 18 Oct 2019 HSU CASS Directors Report 

HSU25 18 Oct 2019 HSU
Statement of Fiona Macdonald 
dated 15 February 2019

HSU26 17 April 2019 HSU
Statement of Robert Sheehy dated 
15 February 2019

PN1669

HSU27 17 April 2019 HSU
Statement of Pamela Wilcock 
dated 15 February 2019

HSU28 17 April 2019 HSU
Statement of Thelma Thames 
dated 15 February 2019

PN1443

HSU29 17 April 2019 HSU
Statement of Bernie Lobert dated 
15 February 2019

PN1444

HSU30 17 April 2019 HSU
Statement of James Eddington 
dated 15 February 2019

PN1669

HSU31 18 Oct 2019 HSU
Statement of Scott Quinn dated 16 
December 2015

HSU32 18 Oct 2019 HSU
Supplementary Statement of Scott 
Quinn dated 3 October 2019

HSU33 11 Mar 2020 HSU
HSU Supplementary Submission 
and Questions

PN288

EXHIBIT 
NO.

DATE 
TENDERED

TENDERED 
BY

DESCRIPTION
TRANSCRIPT 
REFERENCE

National Disability Services

NDS1 17 Oct 2019 NDS
Witness statement of David 
Moody dated 12 July 2019

NDS2 17 Oct 2019 NDS
Statement of Steven Miller dated 
28 June 2019

PN1988

NDS3 17 Oct 2019 NDS Parts of David Moody’s statement PN1914








[2021] FWCFB 2383

310

not read

NDS4 11 Mar 2020 NDS
NDS Submissions re Background 
Papers 2 and 3

PN106

EXHIBIT 
NO.

DATE 
TENDERED

TENDERED 
BY

DESCRIPTION
TRANSCRIPT 
REFERENCE

United Voice

UV1 15 Oct 2019 UV
Statement of Trish Stewart dated 
17 January 2019

PN433

UV2 15 Oct 2019 UV
Supplementary statement of 
Trish Stewart dated 1 April 
2019

PN433

UV3 15 Oct 2019 UV
Further Statement of Trish 
Stewart 1 October 2019

PN433

UV4 15 Oct 2019 UV
Statement of Deon Fleming 
dated 16 January 2019

PN498

UV5 15 Oct 2019 UV
Supplementary Statement of 
Deon Fleming dated 28 March 
2019

PN498

UV6 15 Oct 2019 UV
Statement of Belinda Sinclair 
dated 16 January 2019

PN592

UV7 17 Oct 2019 UV
Statement of Melissa Coad 
dated 16 September 2019

PN1930

UV8 17 Oct 2019 UV
Statement of Jared Marks dated 
3 October 2019

PN1933

UV9 18 Oct 2019 UV

Bundle of Home Care Price 
Guide materials:

- Documents from the 
Commonwealth 
Government’s 
myagedcare.gov.au website

- Provider witness price guides 
displayed on myagedcare

- Provider witness general price 
information displayed on 
myagedcare

PN3421








[2021] FWCFB 2383

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ATTACHMENT B – LIST OF SUBMISSIONS

Party Submission Date

Australian Business Industrial and others

ABI Draft Determination 2 April 2019

ABI Submission 5 April 2019

ABI Submission 19 May 2019

ABI Submission 3 June 2019

ABI Submissions 2 July 2019

ABI Submissions 12 July 2019

ABI Submission in reply 13 September 2019

ABI Submission in reply 12 October 2019

ABI Amended Draft Determination 15 October 2019

ABI Submission in reply 13 September 2019

ABI Submission 20 September 2019

ABI Closing submissions 19 November 2019

ABI Final Submission 10 February 2020

ABI Final reply submission 26 February 2020

ABI Submission: Supplementary questions 11 March 2020

ABI Submission - Background Paper 3 17 March 2020

ABI Submission in reply 10 August 2020

Australian Federation of Employers and Industry

AFEI Submissions 22 May 2019

AFEI Submissions 8 April 2019

AFEI Submissions 3 July 2019

AFEI Submissions in reply 23 July 2019

AFEI Submissions 17 September 2019

AFEI Submissions 23 September 2019

AFEI Submissions 19 November 2019

AFEI Submissions in reply 19 November 2019

AFEI Final submissions 11 February 2020

AFEI Final submissions in reply 26 February 2020

AFEI Submissions – Background Papers 2 & 
3

11 March 2020

AFEI Submission – Background Paper 3 17 March 2020

AFEI Submissions 10 August 2020

The Australian Industry Group

Ai Group Submission 8 April 2019

Ai Group Further submission 2 May 2019






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-020519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-080419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-100820pdf.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-corrections-afei-170320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-findings-afei-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-230919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-170919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-afei-230719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-030719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-080419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-220519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100820.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-abiandors-170320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-q-abiandors-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-andors-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-abinswbc-ors-200919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswbc-ors-130919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-draft-det-abinswbc-151019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-abiandors-121019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswbc-ors-130919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-corr-abinswbc-120719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-ws-abi-anors-020719.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-abinswbc-ors-190519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswbc-050419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-draftdet-abi-nswbc-020419.pdf


[2021] FWCFB 2383

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Ai Group Reply submission 13 July 2019

Ai Group Reply submission 16 September 2019

Ai Group Reply submission – Employer claims 26 September 2019

Ai Group Submission 18 November 2019

Ai Group Further final submission 10 February 2020

Ai Group Final reply submission 26 February 2020

Ai Group Submission – Background Paper 2 11 March 2020

Ai Group Submission – Background Paper 3 11 March 2020

Ai Group Submission – Background Paper 3 20 March 2020

Ai Group Reply submission 13 August 2020

Australian Municipal, Administrative, Clerical and Services Union

ASU Draft Determination 7 November 2018

ASU Submission 18 February 2019

ASU Draft Determination – Community 
Language Allowance

15 April 2019

ASU Submission 17 May 2019

ASU Submission 4 June 2019

ASU Submission 2 July 2019

ASU Submission in reply 16 September 2019

ASU Submission 23 September 2019

ASU Submission in reply 2 October 2019

ASU Submission 19 November 2019

ASU Submission 7 February 2020

ASU Submission890 10 February 2020

ASU Reply submissions891 26 February 2020

ASU Submission – Background Papers 2 & 
3892

10 March 2020

ASU Submission – Background Paper 3 23 March 2020

ASU Submission893 20 July 2020

Business SA

BSA Submissions in reply 12 July 2019

Health Services Union of Australia

HSU Draft Determination 9 November 2018

HSU Submissions 15 February 2019

                                               

890 This was a joint submission between the ASU, HSU and UWU.
891 This was a joint submission between the ASU, HSU and UWU. 
892 This was a joint submission between the ASU, HSU and UWU.
893 This was a joint submission between the ASU, HSU and UWU. 






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-ws-reports-hsu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014285-draftdet-hsu-091118.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-bussa-150719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-corr-hsu-andors-200720.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-q1-asu-230320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201816-sub-hsu-andors-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201816-sub-hsu-andors-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-unions-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asuandors-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-subs-draft-asu-070220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-021019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-230919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-160919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-020719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-040619.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-170519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-draft-det-asu-150419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-draft-det-asu-150419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-180219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014285-draft-det-asu-071118.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-aig-130820.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-q1-aig-200320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-background-paper-3-aig-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-background-paper-2-aig-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-260919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-160919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-130719.pdf


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HSU Submission in reply 16 September 2019

HSU Supplementary submission in reply 2 October 2019

HSU Supplementary submission in reply 3 October 2019

HSU Submission 4 October 2019

HSU Submission894 13 November 2019

HSU Submission 18 November 2019

HSU Submission895 10 February 2020

HSU Reply submissions896 26 February 2020

HSU Submission – Background Papers 2 & 
3897

10 March 2020

HSU Submission – Background Paper 3 17 March 2020

HSU Submission898 20 July 2020

People with Disability Australia and Disabled Peoples Organisations Australia

Submission 17 September 2019

JOBS AUSTRALIA
JA Submission 15 October 2018

JA Draft determination899 7 November 2018

JA Submission in reply 5 April 2019

National Disability Services

NDS Submission 8 April 2019

NDS Submission900 16 May 2019

NDS Submission 17 March 2019

NDS Submission 2 July 2019

NDS Submission 16 July 2019

NDS Submission 16 September 2019

NDS Submission 19 November 2019

NDS Submission 7 February 2020

NDS Submission 26 February 2020

NDS Submission – Background Papers 2 & 3 10 March 2020

NDS Submission in reply 10 August 2020

United Workers’ Union

                                               

894 This was a joint submission with the UWU.
895 This was a joint submission between the ASU, HSU and UWU. 
896 This was a joint submission between the ASU, HSU and UWU. 
897 This was a joint submission between the ASU, HSU and UWU.
898 This was a joint submission between the ASU, HSU and UWU. 
899 Jobs Australia subsequently confirmed its support for submissions in reply to made by NDS. See Jobs Australia 

Submission, 5 April 2019.
900 This was an agreed submission from AFEI, ASU and NDS.






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-ja-050419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-ja-050419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-corr-nds-100820.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-subs-tranche2-nds-070220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-160919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-nds-160719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-020719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-170519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-courtbook-uv-041019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-080419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-ja-151018.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014285-draft-det-ja-071118.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-ja-151018.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-ws-pwda-smith-170919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-corr-hsu-andors-200720.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-hsu-170320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201816-sub-hsu-andors-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201816-sub-hsu-andors-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-unions-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asuandors-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-draftdet-uwu-andanor-131119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-hsu-041019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-031019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-hsu-021019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-160919.pdf


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UWU Draft Determination 7 November 2018

UWU Submission 15 February 2019

UWU Supplementary submission 1 April 2019

UWU Submission on NDIS 17 May 2019

UWU Submission 3 July 2019

UWU Submission in reply 13 September 2019

UWU Further submission in reply 3 October 2019

UWU Court book 4 October 2019

UWU Submission901 13 November 2019

UWU Submission on findings sought 18 November 2019

UWU Submission902 10 February 2020

UWU Reply submissions903 26 February 2020

UWU Submission – Background Papers 2 & 
3904

10 March 2020

UWU Submission – Background Paper 3 18 March 2020

UWU Submission905 20 July 2020

AM2020/100 – Equal Remuneration Case

Party Submission Date
AFEI Submissions 21 December 2020

NDS Submission 21 December 2020

Ai Group Submission 21 December 2020

HSU Submission 21 December 2020

ASU Submission 15 January 2021

Hsu Reply submission 19 February 2021

Ai Group Submission 20 January 2021

                                               

901 This was a joint submission with the HSU.
902 This was a joint submission between the ASU, HSU and UWU. 
903 This was a joint submission between the ASU, HSU and UWU. 
904 This was a joint submission between the ASU, HSU and UWU.
905 This was a joint submission between the ASU, HSU and UWU. 






https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020100-sub-aig-200121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020100-sub-hsu-220221.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020100-sub-asu-150121.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020100-sub-hsu-211220.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020100-sub-aig-211220.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020100-sub-nds-211220.pdf
https://www.fwc.gov.au/documents/documents/awardmod/variations/2020/am2020100-sub-afei-211220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-corr-hsu-andors-200720.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-uwu-180320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201816-sub-hsu-andors-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201816-sub-hsu-andors-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-unions-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asuandors-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uwu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-draftdet-uwu-andanor-131119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-courtbook-uv-041019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-draftdet-uv-031019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uv-130919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826--sub-uv-030719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uv-170519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uv-010419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2018-26-sub-uv-ws-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-draft-det-uv-071118.pdf


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ATTACHMENT C – SUBMISSIONS AND EVIDENCE – MINIMUM ENGAGEMENT 
CLAIM

Part A - Index of evidence relied upon by parties 

Documents

# EXHIBIT NO. DOCUMENT

1 ABI2 Witness Statement of Darren Mathewson

- ABI - whole

2 ABI3 Witness Statement of Jeffrey Wright

- ABI - paras 38-42
- AFEI - paras 37-43
- NDS - paras 44-46

3 ABI5 Witness Statement of Graham Shanahan

- ABI - paras 34-39

- NDS - paras 33-40

4 ABI6 Witness Statement of Deb Ryan

- ABI - paras 61-67, 72

5 ABI7 Witness Statement of Scott Harvey

- ABI - paras 57-60

- NDS - paras 53-60

6 ABI8 Witness Statement of Wendy Mason 

- ABI - paras 57-63, 71 

- NDS - paras 55-72

7 ABI9 Witness Statement of Joyce Wang

- ABI - para 56

- NDS - paras 65-67

8 AIG1 Staff Roster 

- Ai Group - Whole

9 ASU2 Witness Statement of Robert Steiner

- Ai Group - paras 14-15

- HSU - paras 15-16, CB1223

- NDS - paras 15-16

10 ASU4 Stanford Report

- ABI - para 11
- HSU - CB1459-1471








[2021] FWCFB 2383

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# EXHIBIT NO. DOCUMENT

11 ASU9 Witness Statement of Richard Rathbone

- ABI - paras 10-12
- Ai Group - Attachment

12 ASU10 Witness Statement of Augustino Encabo

- ABI - paras 13, 15

13 HSU1 Witness Statement of Mark Farthing

- HSU - CB2926-2932

14 HSU3 Witness Statement of William Elrick

- HSU - para 19; CB2935

- ABI - para 19
- Ai Group - paras 19-23; CB2935-2936 

15 HSU4 Witness Statement of Heather Waddell

- ABI – para 4 
- AFEI - para 22 
- Ai Group - paras 21-22; CB2958
- HSU - paras 11-12; CB2956-2960

- NDS - paras 21-25

16 HSU5 Witness Statement of Christopher Friend

- Ai Group - paras 47-49, 57
- HSU - paras 46-55; CB 2945-2951

17 HSU25 Witness Statement of Fiona Macdonald

- Ai Group - FM-2; CB2917, CB2916-2917
- HSU - CB2910-2915

18 HSU26 Witness Statement of Robert Sheehy

- Ai Group - paras 7-8; CN2941-2942
- HSU - paras 7-8; CB 2941-2944

19 HSU27 Witness Statement of Pamela Wilcock

- ABI - para. 9
- HSU - CB2952-2955

20 HSU28 Witness Statement of Thelma Thames

- ABI - paras 5, 12
- Ai Group - para 12; CB2962
- HSU - paras 12-13; CB 2961-2964 








[2021] FWCFB 2383

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# EXHIBIT NO. DOCUMENT

21 HSU29 Witness Statement of Bernie Lobert

- AFEI - para 11
- Ai Group - para 22
- HSU - paras 12-13; CB2965-2968

22 HSU30 Witness Statement of James Eddington

- Ai Group - para 23; CB2973
- HSU - para 22; CB 2973

23 HSU31 Witness Statement of Scott Quinn

- Ai Group - paras 20-27; CB2989
- HSU - para 20; CB 2988-3050

24 HSU32 Supplementary Witness Statement of Scott Quinn

- AI Group - paras 10, 34; CB3053

- HSU - paras 10-24; CB3051-3079 

25 NDS1 Witness Statement of David Moody

- HSU - paras 53-58; CB4405-4406906

26 NDS2 Witness Statement of Steven Miller

- HSU - paras 23-26; CB4410-4411
- NDS - paras 40-50 

27 UV1 Witness Statement of Trish Stewart

- NDS - para 12
- Ai Group - paras 12-13, 15; CB4603-4604, Annexure B, CB4613-

4634

28 UV4 Witness Statement of Deon Fleming

- NDS - paras 19-21
- Ai Group - paras 19-21; CB4482

29 CB2835 Draft determination

- HSU - CB2835-2836

30 NDIA Efficient Cost Model for Disability Support Workers

- ABI - CB489, CB500. 

                                               

906 Note that paragraphs 54, 56 and 58 of NDS1 – Witness Statement of David Moody were withdrawn during the course of 
the proceedings. 








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# EXHIBIT NO. DOCUMENT

31 Stewart and Brown – Aged and Financial Performance Survey – Sector 
Report – Financial Year 2018*

- ABI - CB503. 

* ABI filed updated versions of the Stewart & Brown reports on 10 August 2020.

Oral evidence

# TRANSCRIPT WITNESS

32 Transcript, 15 
October 2019

Oral evidence of Belinda Sinclair 

- AFEI - PN739

33 Transcript, 18 
October 2019

Oral evidence of Deborah Gaye Ryan

- ABI - PN3050
- Ai Group - PN3047-PN3048, PN3052

34 Transcript, 15 
October 2019

Oral evidence of Deon Fleming 

- AFEI - PN518, PN525, PN527

35 Transcript, 17 
October 2019

Oral evidence of Dr James Stanford

- HSU - PN2272-PN2277

36 Transcript, 18 
October 2019

Oral evidence of Graham Shanahan 

- AFEI - PN2885

37 Transcript, 16 
October 2019

Oral evidence of Heather Waddell 

- AFEI - PN1453-PN1455
- Ai Group - PN1456

38 Transcript, 16 
October 2019

Oral evidence of Robert Steiner

- AFEI - PN1562, PN1566, PN1568, PN1555-1556, PN1558-1559
- Ai Group - PN1562-PN1568

- NDS - PN1552-PN1569

39 Transcript, 17 
October 2019

Oral evidence of Steven Miller 

- AFEI - PN2050
- NDS - PN2033-2039, PN2049-2053

40 Transcript, 15 
October 2019

Oral evidence of Trish Stewart

- AFEI - PN461, PN464, PN468, PN469

41 Transcript, 18 
October 2019

Oral evidence of Wendy Mason

- AFEI - PN3315

- NDS - PN3314-3315 






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100820.pdf


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Part B - Index of party submissions

# DATE PARTY DOCUMENT

1
15 February 2019 UWU Submission

2
15 February 2019 HSU Submission and amended draft determination

3
12 July 2019 ABI Submission in reply – union claims – Attachment C

4
12 July 2019 BusinessSA Submission in reply – union claims – Attachment C

5
13 July 2019 Ai Group Submission in reply

6
16 July 2019 NDS Submission in reply – union claims – Attachment C

7
23 July 2019 AFEI Submission in reply – union claims – Attachment C

8
3 October 2019 HSU Submission in reply – employer response

9
18 November 2019 HSU Submission – claims pressed, findings and evidence

10
18 November 2019 Ai Group Submission – claims pressed, findings and evidence

11
19 November 2019 ABI Submissions

12
19 November 2019 NDS Submission

13
19 November 2019 AFEI Submission

14
7 February 2020 NDS Submission – response to background paper 2

15
10 February 2020 Ai Group Submission – response to background paper 2

16
10 February 2020 Unions Submission – response to background paper 2

17
10 February 2020 ABI Submission – response to background paper 2

18
11 February 2020 AFEI Submission – response to background paper 2

19
26 February 2020 Ai Group Submission in reply

20
26 February 2020 AFEI Submission in reply

21
26 February 2020 ABI Submissions in reply

22
26 February 2020 NDS Submissions in reply

23
26 February 2020 Unions Submissions in reply

24
10 March 2020 Unions Joint Submissions – Response to Background Papers 2 

and 3

25
10 March 2020 NDS Submissions – NDS Response to Questions in 






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201816-sub-hsu-andors-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201816-sub-hsu-andors-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-unions-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-andors-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asuandors-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-subs-tranche2-nds-070220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-findings-afei-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-031019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-afei-230719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-nds-160719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-130719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-bussa-150719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswc-120719.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-ws-reports-hsu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2018-26-sub-uv-ws-150219.pdf


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# DATE PARTY DOCUMENT

Background Paper 3

26
11 March 2020 AFEI Submissions – Response to Questions in Background 

Paper 3

27
11 March 2020 ABI Submissions – Supplementary Questions

28
11 March 2020 Ai Group Submissions – Ai Group Response to Questions in 

Background Paper 3

29
20 July 2020 Unions Joint submissions

30
10 August 2020 ABI Reply Submission

31
13 August 2020 Ai Group Reply Submission






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-aig-130820.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100820.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-corr-hsu-andors-200720.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-background-paper-3-aig-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-background-paper-3-aig-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-q-abiandors-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-100320.pdf


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ATTACHMENT D – SUBMISSIONS AND EVIDENCE – BROKEN SHIFTS CLAIMS

Part A – Index of evidence relied upon by parties

Documents

# EXHIBIT NO. DOCUMENT

1 ABI2 Witness statement of Darren Matthewson
- ABI - CB211
- AFEI - para 48; CB211-469

2 ABI3 Witness statement of Jeffrey Wright
- ABI - paras 44-46; CB470
- AFEI - paras 18, 37, 42-43 
- NDS - paras 44-46
- UWU - paras 41, 45

3 ABI5 Witness statement of Graham Shanahan
- ABI - para 37
- AFEI - paras 33-34
- NDS - paras 33-40

4 ABI6 Witness statement of Deb Ryan
- ABI - paras 67, 70
- AFEI - paras 60, 62, 65 
- ASU - CB190
- HSU - para 64; CB198

5 ABI7 Witness statement of Scott Harvey
- AFEI - paras 53, 57-58 
- ASU - CB162
- NDS - paras 53-60
- UWU - paras 56-59

6 ABI8 Witness statement of Wendy Mason
- ABI - paras 57-59, 67, 72; CB477
- AFEI - paras 60-61, 71 
- NDS - paras 55-72
- UWU - paras 71-72

7 ABI9 Witness statement of Joyce Wang
- ABI - para 65-67; CB200
- AFEI - paras 51, 53
- NDS - paras 65-67

8 ABI13 NDIA Efficient Cost Model
- ABI - CB501

9 ASU2 Witness statement of Robert Steiner
- Ai Group - paras 14-15
- ASU - Whole
- HSU - CB1223
- NDS - paras 15-16








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- UWU - paras 15-20 

10 ASU4 Stanford Report
- ASU - Expert report
- HSU - para 8, 11, 29, 54(c); CB1459-1447

11 ASU7 Witness statement of Tracy Kinchin
- ASU - CB1190

12 ASU9 Witness statement of Richard Rathbone
- Ai Group - CB1178-1185 
- ASU - CB1171

13 ASU10 Witness statement of Augustino Encabo
- Ai Group - para 34; CB1140
- ASU - CB1137

14 HSU1 Witness statement of Mark Farthing
- HSU - CB2926-2932

15 HSU3 Witness statement of William Elrick
- AFEI - para 21 
- Ai Group - para 20, 21, 23; CB2936
- HSU - paras 18-23; CB2935-2936

16 HSU4 Witness statement of Heather Waddell
- ABI - para 23
- AFEI - para 22
- Ai Group - paras 5-7, 12; CB2956-2958 
- HSU - CB2956-2960 
- NDS - paras 21-25

17 HSU5 Witness statement of Christopher Friend
- ABI - para 49
- Ai Group - paras 47-49, 57; CB2949-2950
- HSU - CB2945-2951 

18 HSU25 Witness statement of Fiona Macdonald
- Ai Group - CB2916-2917
- ASU - Annexure FM-2; CB2772
- HSU - CB2910-2922 
- UWU - Annexure FM-2

19 HSU26 Witness statement of Robert Sheehy
- ABI - para 7
- Ai Group - para 7-8; CB2941
- HSU - CB2941-2944 

20 HSU27 Witness statement of Pamela Wilcock
- HSU - CB2952-2955 

21 HSU28 Witness statement of Thelma Thames
- Ai Group - para 15; CB2963
- HSU - CB2961-2964 








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22 HSU29 Witness statement of Bernie Lobert
- AFEI - para 21
- Ai Group - para 22; CB2973
- HSU - CB2965-2968 

23 HSU30 Witness statement of James Eddington
- ABI - para 23
- Ai Group - para 23; CB2973
- HSU - CB2973-2974

24 HSU31 Witness statement of Scott Quinn
- Ai Group - paras 20-29, 40; CB2990-2991
- HSU - CB2988-3050 

25 HSU32 Supplementary witness statement of Scott Quinn
- Ai Group - paras 10, 21, 27-28, 34; CB3053-3055 
- HSU - CB3051-3079  

26 NDS1 Witness statement of David Moody
- HSU - CB4405-4406

27 NDS2 Witness statement of Steven Miller
- HSU - CB4410-4411
- NDS - paras 40-50

28 UV1 Witness statement of Trish Stewart
- AFEI - paras 6, 7, 9
- Ai Group - paras 12-13, 15; CB4603-4604, CB4613-34
- NDS - para 12
- UWU - paras 13-19, Annexure B

29 UV2 Supplementary witness statement of Trish Stewart
- UWU - paras 7-8

30 UV3 Further Witness Statement of Trish Stewart
- AFEI - para 7
- UWU - paras 3-5, 7-17

31 UV4 Witness statement of Deon Fleming
- Ai Group – para 19-21, Annexure B; CB4482
- HSU - para 21; CB4482
- NDS - paras 19-21
- UWU - paras 18-24, Annexure B

32 UV5 Supplementary witness statement of Deon Fleming
- UWU - para 6

33 UV6 Witness statement of Belinda Sinclair
- AFEI - para 12
- HSU - paras 12-14; CB4571, CB4591-4601
- UWU - paras 12-14, Annexure B

34 UV7 Witness statement of Melissa Coad








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- AFEI - para 16; CB4713-4719
- UWU - paras 28-30

35 UV8 Witness statement of Jared Marks
- UWU - paras 1-23, 25, 27-35

36 CB1686 Dr Olav Muurlink – “Predictability and control in working schedules”
- ASU - CB1686

37 CB4416 Draft determination
- UWU - paras 5-6; CB4416

38 CB2835 Draft determination
- HSU - CB2835-2838

39 CB489 NDIA Efficient Cost Model for Disability Support Workers
- ABI - CB489

40 CB1884 NDIS Costs Productivity Commission
- ASU - CB1884

41 CB2796 NDIS Price Guide 2019-2020
- ASU - CB2796

42 CB1828 NDS – Australian Disability Workforce Report
- ASU - CB1828

43 CB181 Witness statement of Andrew Collins (not tendered)
- AFEI - paras 44-45

44 Supplementary witness statement of Steven Miller (not tendered)
- NDS - paras 3-7

45 Supplementary witness statement of Wendy Mason (not tendered)
- ABI - paras 8-18

46 Stewart & Brown – Aged and Financial Performance Survey – Sector 
Report Financial Year 2018*

- ABI - CB503

47 Stewart & Brown – Aged and Financial Performance Survey – Sector 
Report – December 2018*

- ABI - pp 5, 6, 27, 29; CB541

* ABI filed updated versions of the Stewart & Brown reports on 10 August 2020.

Oral evidence

# TRANSCRIPT WITNESS

48 Transcript, 15 
October 2019

Oral evidence of Belinda Sinclair
- AFEI - PN711, PN713, PN739 

49 Transcript, 18 Oral evidence of Deborah Gaye Ryan






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100820.pdf


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October 2019 - AI Group - PN3047-PN3048, PN3052, PN3086
- ASU - PN3050, PN3086-PN3092
- UWU - PN3050, PN3086-PN3092 

50 Transcript, 15 
October 2019

Oral evidence of Deon Fleming
- AFEI - PN518-PN525, PN527, PN529
- Ai Group - PN525, PN527

51 Transcript, 18 
October 2019

Oral evidence of Graham Shanahan
- AFEI - PN2885
- Ai Group - PN2881

52 Transcript, 16 
October 2019

Oral evidence of Heather Waddell
- AFEI - PN1453-PN1455
- Ai Group - PN1465 
- ASU - PN1342

53 Transcript, 17 
October 2019

Oral evidence of James Stanford
- ASU - PN2216-PN2289
- HSU - PN2215, PN2272-PN2277
- UWU - PN2274

54 Transcript, 17 
October 2019

Oral evidence of Jeffrey Wright
- AFEI - PN2623
- Ai Group - PN2623
- ASU - PN2543-PN2570, PN2619
- UWU - PN2543-2570, PN2619

55 Transcript, 18 
October 2019

Oral evidence of Joyce Wang
- Ai Group - PN3537

56 Transcript, 16 
October 2019

Oral evidence of Robert Steiner
- AFEI - PN1555-PN1556, PN1558-PN1559, PN1562, PN1566, 

PN1568 
- Ai Group - PN1562-PN1568, PN1570, PN1572
- ASU - PN1534-PN1613
- HSU - PN1533
- NDS - PN1552-PN1569

57 Transcript, 17 
October 2019

Oral evidence of Steven Miller
- AFEI - PN2050, PN2070 
- ASU - PN2034-PN2069
- NDS - PN2033-PN2039, PN2049-PN2053

58 Transcript, 15 
October 2019

Oral evidence of Trish Stewart
- AFEI - PN461, PN464, PN469-PN473
- Ai Group - PN461, PN464 

59 Transcript, 18 
October 2019

Oral evidence of Wendy Mason
- AFEI - PN3315
- Ai Group - PN3315
- NDS - PN3314-PN3315
- UWU - PN3231-PN3236








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Part B – Submissions

# DATE PARTY DOCUMENT

1
15 February 2019 UWU Submission

2
15 February 2019 HSU Submission and amended draft determination

3
18 February 2019 ASU Submission

4
1 April 2019 UWU Supplementary submission

5
8 April 2019 Ai Group Submission in reply

6
2 July 2019 ASU Submission

7
12 July 2019 ABI and ors

Submission in reply – union claims – Attachment 
C

8
12 July 2019 BusinessSA

Submission in reply – union claims – Attachment 
C

9
16 July 2019 NDS

Submission in reply – union claims – Attachment 
C

10
23 July 2019 AFEI

Submission in reply – union claims – Attachment 
C

11
13 September 2019 ABI and ors Submission in reply – union claims – travel time

12
16 September 2019 NDS Submission in reply – union claims – travel time

13
16 September 2019 Ai Group Submission in reply – union claims – travel time

14
17 September 2019 AFEI Submission in reply – union claims – travel time

15
2 October 2019 ASU Submission in reply – employer response

16
3 October 2019 HSU Submission in reply – employer response

17
3 October 2019 UWU

Submission in reply – employer response and 
amended draft determination

18
18 November 2019 UWU

Submission – claims pressed, findings and 
evidence

19
18 November 2019 HSU

Submission – claims pressed, findings and 
evidence

20
18 November 2019 Ai Group

Submission – claims pressed, findings and 
evidence

21
19 November 2019 ASU

Submission – claims pressed, findings and 
evidence






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uwu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-draftdet-uv-031019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-draftdet-uv-031019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-031019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-021019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-170919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-160919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-160919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswbc-ors-130919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-afei-230719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-afei-230719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-nds-160719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-nds-160719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-bussa-150719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-bussa-150719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswc-120719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswc-120719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-020719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-080419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uv-010419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-180219.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-ws-reports-hsu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2018-26-sub-uv-ws-150219.pdf


[2021] FWCFB 2383

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# DATE PARTY DOCUMENT

22
19 November 2019 ABI and ors

Submission – claims pressed, findings and 
evidence

23
19 November 2019 NDS

Submission – claims pressed, findings and 
evidence

24
19 November 2019 AFEI

Submission – claims pressed, findings and 
evidence

25
7 February 2020 NDS Submission – final

26
10 February 2020 Ai Group Submission – final

27
10 February 2020 ABI and ors Submission – final

28
10 February 2020 Unions (joint) Submission – final

29
11 February 2020 AFEI Submission – final

30
26 February 2020 Ai Group Submission in reply – final

31
26 February 2020 NDS Submission in reply – final

32
26 February 2020 AFEI Submission in reply – final

33
26 February 2020 ABI and ors Submission in reply – final

34
26 February 2020 Unions (joint) Submission in reply – final

35
10 March 2020 Unions (joint) Submission – background papers 2 & 3

36
10 March 2020 NDS Submission – background papers 2 & 3

37
11 March 2020 AFEI Submission – background papers 2 & 3

38
11 March 2020 ABI and ors Submission – background papers 2 & 3

39
17 March 2020 AFEI Submission – background paper 3 – Attachment 1

40
17 March 2020 ABI and ors Submission – background paper 3 – Attachment 1

41
18 March 2020 UWU Submission – background paper 3 – Attachment 1

42
20 March 2020 Ai Group Submission – background paper 3 – Attachment 1

43
23 March 2020 ASU Submission – background paper 3 – Attachment 1






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-q1-asu-230320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-q1-aig-200320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-uwu-180320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-abiandors-170320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-corrections-afei-170320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-q-abiandors-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201816-sub-hsu-andors-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-unions-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-andors-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asuandors-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-subs-tranche2-nds-070220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-findings-afei-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-findings-afei-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-191119.pdf


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ATTACHMENT E – SUBMISSIONS AND EVIDENCE – TRAVEL TIME CLAIMS

Part A – Index of evidence relied upon by parties

Documents

# EXHIBIT NO. DOCUMENT

1 ABI8 Witness Statement of Wendy Mason
- AFEI - para 71

2 ABI2 Witness Statement of Darren Mathewson
- ABI - CB211

3 ASU1 Witness Statement of Deborah Anderson
- ASU - CB1394

4 ASU2 Witness Statement of Robert Steiner
- AFEI - paras 11, 16
- Ai Group - para 14
- ASU - whole
- HSU - paras 11; CB1223 
- NDS - paras 15-16 
- UWU - paras 10-11, 15

5 ASU4 Stanford Report
- UWU - paras 26-30
- AFEI - CB1467
- ASU - whole

6 ASU7 Witness Statement of Tracey Kinchin
- Ai Group - para 16
- ASU - CB1190

7 ASU9 Witness Statement of Richard Rathbone
- Ai Group - para 17, 34
- ASU - CB1171

8 ASU10 Witness Statement of Augustino Encabo
- Ai Group - para 34
- ASU - CB1137

9 HSU1 Witness Statement of Mark Farthing
- HSU - CB2926-2932 

10 HSU2 Further Witness Statement of Mark Farthing
- HSU - para 10(d); CB2982
- UWU - para 21

11 HSU3 Witness Statement of William Elrick
- HSU - CB2933-2940 








[2021] FWCFB 2383

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# EXHIBIT NO. DOCUMENT

12 HSU4 Witness Statement of Heather Waddell
- Ai Group - para 13
- HSU - paras 10-14; CB2956-2960
- NDS - paras 10-14

13 HSU5 Witness Statement of Christopher Friend
- Ai Group - para 47
- HSU - paras 65-72; CB2946-2951

14 HSU25 Witness Statement of Fiona Macdonald
- Ai Group - CB2916; Annexure FM-2
- ASU - CB2772, Annexure FM-2
- HSU - CB2909-2923 
- NDS - CB2917-2920
- UWU - Annexure FM-2

15 HSU26 Witness Statement of Robert Sheehy
- HSU - para 9; CB2941-2944

16 HSU27 Witness Statement of Pamela Wilcock
- HSU - CB2952-2955

17 HSU28 Witness Statement of Thelma Thames
- Ai Group - paras 15-16 
- HSU - paras 14-19; CB2961-2964
- NDS - paras 13-16

18 HSU29 Witness Statement of Bernie Lobert
- Ai Group - para 15
- HSU - paras 5-6; CB2965-2968

19 HSU30 Witness Statement of James Eddington
- HSU - paras 20-21; CB2969-2980

20 HSU31 Witness Statement of Scott Quinn
- Ai Group - paras 28-29
- HSU - CB2988-3050 

21 HSU32 Supplementary Witness Statement of Scott Quinn
- Ai Group - paras 10, 18, 21, 25, 27-28
- HSU - paras 10, 27-30; CB3051-3079
- NDS - paras 14-29

22 UV1 Witness Statement of Trish Stewart
- Ai Group - paras 16, 20
- NDS - paras 3-8 
- UWU - paras 13-16; Annexures A & B








[2021] FWCFB 2383

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# EXHIBIT NO. DOCUMENT

23 UV2 Supplementary Witness Statement of Trish Stewart
- ABI - para 5
- Ai Group - para 6
- UWU - paras 3-8

24 UV3 Further Witness Statement of Trish Stewart
- UWU - paras 2-6, 13-17

25 UV4 Witness Statement of Deon Fleming
- Ai Group - para 22
- UWU - paras 9, 18-24; Annexures A & B

26 UV5 Supplementary Witness Statement of Deon Fleming
- ABI - para 5
- UWU - paras 5-8

27 UV6 Witness Statement of Belinda Sinclair
- AFEI - para 26
- UWU - paras 12-14; Annexure B

28 UV8 Witness Statement of Jared Marks
- Ai Group - CB4720-4723
- UWU - paras 1-23, 25, 27-35

29 UV9 Bundle of Home Care Price Guide materials
- HSU - whole
- UWU - pp 15, 34, 40, 42, 44, 45, 46

30 CB4416 Draft determination
- UWU - para 7; CB4416

31 CB2835 Draft determination
- HSU - CB2835-2838

32 CB1686 Muurlink Report
- ASU - CB1686

33 CB501 NDIA Efficient Cost Model
- ABI - CB501

34 CB489 NDIA Efficient Cost Model for Disability Support Workers
- ABI - CB489

35 CB1884 NDIS Costs Productivity Commission Paper
- ASU - CB1884

36 CB2796 NDIS Price Guide 2019-20
- AFEI - para 12; CB2796
- ASU - para 12; CB2796
- HSU - CB4321-4368
- UWU – p 12; CB2796








[2021] FWCFB 2383

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# EXHIBIT NO. DOCUMENT

36 CB1828 NDS - Australian Disability Workforce Report
- ASU - CB1828

38 Business Equipment Industry F17s
- ASU - whole 

39 Stewart and Brown – Aged and Financial Performance Survey – Sector 
Report – Financial Year 2018*

- ABI - CB503

40 Stewart and Brown – Aged and Financial Performance Survey – Sector 
Report – December 2018*

- ABI - CB541

* ABI filed updated versions of the Stewart & Brown reports on 10 August 2020.

Oral evidence

# TRANSCRIPT WITNESS

41 Transcript, 16 
October 2019

Oral evidence of Belinda Sinclair
- AFEI - PN678

42 Transcript, 16 
October 2019

Oral evidence of Christopher Friend
- Ai Group - PN1506, PN1514-PN1515

43 Transcript, 18 
October 2019

Oral evidence of Deborah Gaye Ryan
- ASU - PN3050-PN3059
- UWU - PN3050-PN3059

44 Transcript, 16 
October 2019

Oral evidence of Deon Fleming
- AFEI - PN525, PN527-PN532
- Ai Group - PN525, PN527, PN531
- UWU - PN525-PN532

45 Transcript, 18 
October 2019

Oral evidence of Graham Shanahan
- ABI - PN2855, PN2887, PN2890
- Ai Group - PN2879, PN2885, PN2890
- UWU - PN2865-PN2866, PN2887-PN2890

46 Transcript, 16 
October 2019

Oral evidence of Heather Waddell
- AFEI - PN1389, PN1391, PN1392, PN1395, PN1398, PN1402, 

PN1405, PN1407-1409
- NDS - PN1386-PN1414

47 Transcript, 17 
October 2019

Oral evidence of James Stanford
- ASU - PN2216-PN2289
- UWU - PN2229-PN2279






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100820.pdf


[2021] FWCFB 2383

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48 Transcript, 18 
October 2019

Oral evidence of Joyce Wang
- ABI - PN3505-PN3517, PN3557-PN3558
- Ai Group - PN3534, PN3536-PN3540
- ASU - PN3505-PN3517, PN3557-PN3558
- UWU - PN3505- PN3517, PN3557- PN3558

49 Transcript, 16 
October 2019

Oral evidence of Robert Steiner
- ABI - PN1569-PN1574
- AFEI - PN1572
- Ai Group - PN1570, PN1572-PN1574
- ASU - PN1534-PN1613
- NDS - PN1552-PN1569

50 Transcript, 18 
October 2019

Oral evidence of Scott Harvey
- Ai Group - PN3141-PN3142

51 Transcript, 17 
October 2019

Oral evidence of Steven Miller
- Ai Group - PN2039, PN2057-PN2059, PN2070

52 Transcript, 16 
October 2019

Oral evidence of Trish Stewart
- ABI - PN459-PN460; PN468
- AFEI - PN460, PN461, 464, 468.
- Ai Group - PN458-PN460, PN468
- UWU - PN459-PN468

53 Transcript, 18 
October 2019

Oral evidence of Wendy Mason
- UWU - PN3210-PN3213

Part B – Submissions

# DATE PARTY DOCUMENT

1
15 February 2019 UWU Submission

2
15 February 2019 HSU Submission and amended draft determination

3
1 April 2019 UWU

Supplementary submission and draft 
determination

4
2 July 2019 ASU Submission

5
13 September 2019 ABI & NSWBC Submission in reply – union claims

6
16 September 2019 NDS Submission in reply – union claims

7
16 September 2019 Ai Group Submission in reply – union claims

8
17 September 2019 AFEI Submission in reply – union claims

9
2 October 2019 ASU Submission in reply – employer response






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-021019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-170919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-160919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-160919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswbc-ors-130919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-020719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uv-010419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uv-010419.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-ws-reports-hsu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2018-26-sub-uv-ws-150219.pdf


[2021] FWCFB 2383

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10
3 October 2019 HSU Submission in reply – employer response

11
3 October 2019 UWU

Submission in reply – employer response and 
amended draft determination

12
18 November 2019 UWU

Submission – claims pressed, findings and 
evidence

13
18 November 2019 HSU

Submission – claims pressed, findings and 
evidence

14
18 November 2019 Ai Group

Submission – claims pressed, findings and 
evidence

15
19 November 2019 ABI & NSWBC

Submission – claims pressed, findings and 
evidence

16
19 November 2019 NDS

Submission – claims pressed, findings and 
evidence

17
19 November 2019 ASU

Submission – claims pressed, findings and 
evidence

18
19 November 2019 AFEI

Submission – claims pressed, findings and 
evidence

19
7 February 2020 NDS Submission – final

20
10 February 2020 Ai Group Submission – final

21
10 February 2020 ABI & NSWBC Submission – final

22
10 February 2020 Unions (joint) Submission – final

23
11 February 2020 AFEI Submission – final

24
26 February 2020 Ai Group Submission in reply – final

25
26 February 2020 NDS Submission in reply – final

26
26 February 2020 AFEI Submission in reply – final

27
26 February 2020 ABI & NSWBC Submission in reply – final

28
26 February 2020 Unions (joint) Submission in reply – final

29
10 March 2020 Unions (joint) Submission – background papers 2 & 3

30
11 March 2020 Ai Group Submissions

31
11 March 2020 AFEI Submission – background papers 2 & 3

32
17 March 2020 AFEI

Submission – background paper 3 –
Attachment 1






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-corrections-afei-170320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-corrections-afei-170320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-background-paper-3-aig-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201816-sub-hsu-andors-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-unions-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-andors-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asuandors-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-subs-tranche2-nds-070220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-findings-afei-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-findings-afei-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uwu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-draftdet-uv-031019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-draftdet-uv-031019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-031019.pdf


[2021] FWCFB 2383

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33
17 March 2020 ABI & NSWBC

Submission – background paper 3 –
Attachment 1

34
18 March 2020 UWU

Submission – background paper 3 –
Attachment 1

35
20 March 2020 Ai Group

Submission – background paper 3 –
Attachment 1

36
23 March 2020 ASU

Submission – background paper 3 –
Attachment 1






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-q1-asu-230320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-q1-asu-230320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-q1-aig-200320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-q1-aig-200320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-uwu-180320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-uwu-180320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-abiandors-170320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-abiandors-170320.pdf


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ATTACHMENT F – SUBMISSIONS AND EVIDENCE – VARIATIONS TO 
ROSTERS CLAIMS

Part A – Index of evidence relied upon by parties

Documents

# EXHIBIT NO. DOCUMENT

1 ABI2 Witness Statement of Darren Mathewson

- ABI - CB211

2 ABI6 Witness Statement of Deb Ryan

- ABI - paras 41, 62

3 ASU2 Witness Statement of Robert Steiner

- ASU - Whole

4 ASU4 Stanford Report

- ASU – Whole

5 ASU7 Witness Statement of Tracy Kinchin

- ASU - CB1190

6 ASU8 Witness Statement of Emily Flett

- ASU - paras 14, 19-20; CB1427

7 ASU9 Witness Statement of Richard Rathbone

- ASU - CB1171

8 ASU10 Witness Statement of Augustino Encabo

- ASU - paras 19-21; CB1137

9 HSU5 Witness Statement of Christopher Friend

- HSU - para 3; CB2947
- AIG - para 30; CB2947
- ABI - paras 11, 13, 36

10 HSU27 Witness Statement of Pamela Wilcock

- ABI - para 21
- AIG - para 11; CB2953
- HSU - para 11; CB2953

11 HSU28 Witness Statement of Thelma Thames

- ABI - para 11
- AIG - para 11; CB2962
- HSU - para 16; CB2962








[2021] FWCFB 2383

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# EXHIBIT NO. DOCUMENT

12 HSU32 Supplementary Witness Statement of Scott Quinn

- ABI - paras 16, 36

13 UV1 Witness Statement of Trish Stewart

- ABI - paras 10-11
- AFEI - para 10
- AIG - para 10; CB4603
- UWU - paras 9-12

14 UV4 Witness Statement of Deon Fleming

- ABI - para 15
- AFEI - para 15
- AIG - para 15-17; CB4481-CB4482
- UWU - paras 13-17

15 UV6 Witness Statement of Belinda Sinclair

- ABI - para 22-25
- AFEI - para 22
- AIG - para 22; CB4573
- UWU - paras 22-26

16 CB4416 Draft determination

- UWU - para 4; CB4416

17 CB501 NDIA Efficient Cost Model

- ABI - CB501

18 CB489 NDIA Efficient Cost Model for Disability Support Workers

- ABI - CB489

19 CB1686 Predictability and control in working schedules – Dr Olav Muurlink

- ASU - CB1686

20 Stewart and Brown – Aged and Financial Performance Survey – Sector 
Report – Financial Year 2018*

- ABI - CB503

21 Stewart and Brown – Aged and Financial Performance Survey – Sector 
Report – December 2018*

- ABI - CB541

* ABI filed updated versions of the Stewart & Brown reports on 10 August 2020.






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100820.pdf


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Oral evidence

# TRANSCRIPT EVIDENCE

22 Transcript, 15 
October 2019

Oral evidence of Belinda Sinclair

- AFEI - PN606, PN717-PN725
- UWU - PN599-PN616, PN745

23 Transcript, 17 
October 2019

Oral evidence of Dr James Stanford

- ASU - PN2216–PN2289

Part B - Index of party submissions

# DATE PARTY DOCUMENT

1
15 February 2019 UWU Submission

2
2 April 2019 ABI Draft determination

3
2 July 2019 ABI Submission

4
2 July 2019 NDS Submission

5
3 July 2019 AFEI Submission

6
12 July 2019 ABI Submission in reply

7
13 July 2019 Ai Group Submission in reply

8
16 July 2019 NDS Submission in reply

9
23 July 2019 AFEI Submission in reply

10
13 September 2019 UWU Submission in reply

11
16 September 2019 ASU Submission in reply – ABI claims

12
16 September 2019 HSU Submission in reply – ABI claims

13
26 September 2019 Ai Group Submission in reply – ABI claims

14
3 October 2019 UWU Submission in reply

15
15 October 2019 ABI Amended draft determination

16
18 November 2019 Ai Group Submission

17
18 November 2019 UWU Submission

18
19 November 2019 ASU Submission






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uwu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-draft-det-abinswbc-151019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-draftdet-uv-031019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-260919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-160919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-160919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uv-130919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-afei-230719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-nds-160719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-130719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswc-120719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-030719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-020719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-anors-020719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-draftdet-abi-nswbc-020419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2018-26-sub-uv-ws-150219.pdf


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# DATE PARTY DOCUMENT

19
19 November 2019 AFEI Submission

20
19 November 2019 NDS Submission

21
19 November 2019 ABI Submission

22
7 February 2020 NDS Submission – final – tranche 2

23
10 February 2020 Unions Submission - final

24
10 February 2020 ABI Submission – final – further amended draft 

determination

25
10 February 2020 Ai Group Submission - final

26
11 February 2020 AFEI Submission - final

27
26 February 2020 AFEI Submission in reply - final

28
26 February 2020 Ai Group Submission in reply - final

29
10 March 2020 Unions Submission – background papers 2 & 3

30
11 March 2020 ABI Submission – background papers 2 & 3

31
11 March 2020 AFEI Submission – background papers 2 & 3

32
17 March 2020 AFEI Submission – background paper 3

33
17 March 2020 ABI Submission – background paper 3

34
18 March 2020 UWU Submission – background paper 3

35
20 March 2020 AIG Submission – background paper 3

36
23 March 2020 ASU Submission – background paper 3

37
20 July 2020 Unions Submission – Report

38
10 August 2020 ABI Submission in reply

39
13 August 2020 Ai Group Submission in reply






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-aig-130820.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100820.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-corr-hsu-andors-200720.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-q1-asu-230320.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-q1-aig-200320.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-uwu-180320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-abiandors-170320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-corrections-afei-170320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-q-abiandors-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201816-sub-hsu-andors-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asuandors-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-subs-tranche2-nds-070220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-findings-afei-191119.pdf


[2021] FWCFB 2383

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ATTACHMENT G – SUBMISSIONS AND EVIDENCE – REMOTE 
RESPONSE/RECALL TO WORK CLAIMS

Part A – Index of evidence relied upon by parties

Documents

# EXHIBIT NO. DOCUMENT

1 ABI2 Witness Statement of Darren Mathewson
- ABI -CB211

2 ABI6 Witness Statement of Deb Ryan
- ABI - CB190
-

3 ABI7 Witness Statement of Scott Harvey
- ABI - CB162

4 ASU1 Witness Statement of Deborah Anderson
- ASU - CB1394
- Ai Group - paras 23-24; CB1396 

5 ASU4 Expert Report of Dr Jim Stanford
- ASU - whole

6 ASU8 Witness Statement of Emily Flett
- ASU - CB1427

7 CB489 NDIA Efficient Cost Model for Disability Support Workers
- ABI - CB489

8 CB501 NDIA Efficient Cost Model
- ABI - CB501

9 CB1124 Court Book – draft determination
- ASU - CB1124

10 CB1686 Predictability and control in working schedules by Dr Olav Muurlink
- ASU - pp 6, 11-12, 17; CB1686

11 Stewart and Brown – Aged and Financial Performance Survey – Sector 
Report – Financial Year 2018*

- ABI - CB503

12 Stewart and Brown – Aged and Financial Performance Survey – Sector 
Report – December 2018*

- ABI - CB541

* ABI filed updated versions of the Stewart & Brown reports on 10 August 2020.






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100820.pdf


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Oral evidence

# TRANSCRIPT WITNESS

13 Transcript Oral Evidence of Deborah Anderson
- ABI - PN1005-PN1007 
- Ai Group - PN991, PN1000-PN1004, PN1011-PN1013, PN1018 
- ASU - PN981-PN1030

14 Transcript Oral Evidence of Dr Jim Stanford
- ASU - PN2216-PN2289 

Part B - Index of party submissions

# DATE PARTY DOCUMENT

1
15 February 2019 HSU Submission

2
15 February 2019 HSU Amended draft determination

3
2 April 2019 ABI Draft determination

4
2 July 2019 NDS Submission

5
2 July 2019 ABI Submission

6
3 July 2019 AFEI Submission

7
12 July 2019 ABI Submission in reply

8
13 July 2019 Ai Group Submission in reply

9
16 July 2019 NDS Submission in reply

10
23 July 2019 AFEI Submission in reply

11
13 September 2019 UWU Submission in reply

12
16 September 2019 ASU Submission in reply - ABI and others claims

13
23 September 2019 ASU Submission in reply and draft determination

14
2 October 2019 HSU Submission in reply

15
15 October 2019 ABI Amended draft determination

16
18 November 2019 HSU Submission

17
18 November 2019 Ai Group Submission

18
18 November 2019 UWU Submission






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uwu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-draft-det-abinswbc-151019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-hsu-021019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-230919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-160919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uv-130919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-afei-230719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-nds-160719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-130719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswc-120719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-030719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-anors-020719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-020719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-draftdet-abi-nswbc-020419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/2-am201826-draft-det-asu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/1-am201826-sub-asu-150219.pdf


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# DATE PARTY DOCUMENT

19
19 November 2019 AFEI Submission - findings

20
19 November 2019 ASU Submission

21
19 November 2019 AFEI Submission in reply

22
19 November 2019 NDS Submission

23
19 November 2019 ABI Submission

242
7 February 2020 NDS Submission – final – tranche 2

5
10 February 2020 ABI Submission – final – further amended draft 

determination

26
10 February 2020 Ai Group Submission - final

27
10 February 2020 Unions Submission - final

28
11 February 2020 AFEI Submission - final

29
26 February 2020 Unions Submission in reply - final

30
26 February 2020 ABI Submission in reply - final

31
26 February 2020 Ai Group Submission in reply - final

32
11 March 2020 Ai Group Submission – background paper 3

33
17 March 2020 ABI Submission – background paper 3

34
20 March 2020 Ai Group Submission – background paper 3

35
23 March 2020 ASU Submission – background paper 3

36
20 July 2020 Unions Submission

37
10 August 2020 ABI Submission in reply

38
13 August 2020 Ai Group Submission in reply 






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-aig-130820.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100820.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-corr-hsu-andors-200720.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-q1-asu-230320.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-q1-aig-200320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-abiandors-170320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-background-paper-3-aig-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-andors-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-unions-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asuandors-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-subs-tranche2-nds-070220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-findings-afei-191119.pdf


[2021] FWCFB 2383

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ATTACHMENT H – REMOTE RESPONSE CLAUSES

Relevant extracts from the following awards

Yes [ ] No [ ]ocal Government Industry Award 2020

Clause 21.4(c)

(c) On-call, call-back and remote response

Clauses 21.4(a) and 21.4(b) will not apply where an employee works for less
than 3 hours on-call, call-back or remote response on any one day in
accordance with clauses 21.5 or 21.6.

Clause 21.6(d)

(d) Remote response

(i) An employee who is in receipt of an on-call allowance and available to
immediately:

•respond to phone calls or messages;

•provide advice (‘phone fixes’);

•arrange call out/rosters of other employees; and

•remotely monitor and/or address issues by remote telephone and/or
computer access,

will be paid the applicable overtime rate in clause 21 for the time actually
taken in dealing with each particular matter. 

(ii) An employee remotely responding will be required to maintain and
provide to the employer a time sheet of the length of time taken in
dealing with each matter remotely for each day starting from the first
remote response. The total overtime paid to an employee for all time
remotely responding in any day commencing from the first response 
will be rounded up to the nearest 15 minutes.

Local Government (State) Award 2020 (NSW)

Clause 20E

E. REMOTE RESPONSE 

(i) An employee who is in receipt of an on call allowance and available to 
immediately: 

(a) respond to phone calls or messages; 








[2021] FWCFB 2383

343

(b) provide advice (‘phone fixes’); 

(c) arrange call out/rosters of other employees; and 

(d) remotely monitor and/or address issues by remote telephone and/or 
computer access, 

will be paid the applicable overtime rate for the time actually taken in dealing 
with each particular matter, except where the employee is recalled to work 
(Note: subclause 20C(vi) applies where an on-call employee is recalled to 
work). 

(ii) An employee remotely responding will be required to maintain and provide to 
the employer a time sheet of the length of time taken in dealing with each matter 
remotely for each day commencing from the first remote response. The total overtime 
paid to an employee for all time remotely responding in any day commencing from the 
first response will be rounded up to the nearest 15 minutes. 

(iii) The employer may, by agreement, make an average payment equivalent to an 
agreed period of time per week where the employee is regularly required to remotely 
respond as defined in subclause (i) of this clause.

Water Industry Award 2020

Clause 20.4(d)

(d) Clause 20.4 will not apply where an employee works for less than 3 hours on-
call, call-back or remote response on any one day in accordance with clauses
20.5 or 20.6.

Clause 20.6(d)

(d) Remote response

An employee who is in receipt of an on-call allowance and available to 
immediately:

(i) respond to phone calls or messages;

(ii) provide advice (‘phone fixes’);

(iii) arrange call out/rosters of other employees; and

(iv) remotely monitor and/or address issues by remote telephone and/or 
computer access,

will be paid the applicable overtime rate for the time actually taken in dealing 
with each particular matter. 








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(e) An employee remotely responding may be required to maintain and provide to 
the employer a time sheet of the length of time taken in dealing with each 
matter remotely for each day commencing from the first remote response. The 
total overtime paid to an employee for all time remotely responding in any day 
commencing from the first response will be rounded up to the nearest 15 
minutes.

Business Equipment Award 2020

Clause 20.4(d)

(d) The provisions of clause 20.4 will not apply in circumstances where an 
employee provides technical service or technical support over the telephone or 
via remote access arrangements. Clause 20.7 may apply instead..

Clause 20.6(c)

(c) The provisions of clause 20.6 will not apply to call-backs or in circumstances where 
an employee provides technical service or technical support over the telephone or via 
remote access arrangements.

Clause 20.7

20.7 Technical service/support

(a) An employee required to work overtime providing technical service or 
technical support over the telephone or via remote access arrangements will be 
paid for each occasion that such work is carried out: 

(i) for a minimum of half an hour at the appropriate overtime rate where 
such work commences between 5.00 am and 10.00 pm; or

(ii) for a minimum of one hour at the appropriate overtime rate where such
work commences after 10.00 pm and before 5.00 am except where the
overtime is continuous (subject to a meal break) with the 
commencement or completion of ordinary hours.

(b) Provided that, the employee will not be required to work the full half an hour 
or one hour as the case may be if the work which the employer requires to be
performed is completed within a shorter period.

(c) Notwithstanding the above, where an employee is required to carry out further
overtime work within the half an hour or one hour guarantee period, the half an
hour or one hour minimum for the first work period will be cancelled and the
employee will be paid up to the commencement of the second or subsequent
work period.

(d) Overtime worked in circumstances specified in clause 20.7 will not be regarded
as overtime for the purposes of clauses 20.4 and 20.5.








[2021] FWCFB 2383

345

Contract Call Centres Award 2020

Clause 20.4(c)

(c) The provisions of clause 20.4 will not apply to call-backs or in circumstances
where an employee provides service or support over the telephone or via
remote access arrangements where the time worked is less than 3 hours during
the call-back or each call-back. However, where the total number of hours
worked on more than one call-back is 4 hours or more then the provisions of
clause 20.4(b) will apply.

Clause 20.6(d)

(d) The provisions of clause 20.6 will not apply in circumstances where an
employee provides service or support over the telephone or via remote access
arrangements.

Clause 20.7

20.7 Remote service/support

(a) An employee required to work overtime providing service or support over the
telephone or via remote access arrangements must be paid for each occasion
that such work is carried out:

(i) for a minimum of half an hour at the appropriate overtime rate where
such work commences between 5.00 am and up to 10.00 pm;

(ii) for a minimum of one hour at the appropriate overtime rate where such
work commences after 10.00 pm and up to midnight; or

(iii) for a minimum of one and a half hours at the appropriate overtime rate
where such work commences after midnight and before 5.00 am;

except where the overtime is continuous (subject to a meal break) with the
commencement or completion of ordinary hours.

(b) The employee will not be required to work the full half an hour or one hour or
one and a half hours if the work which the employer requires to be performed
is completed within a shorter period.

(c) If an employee has completed the job and finished work but is required to
perform further work within the half hour, one hour or one and a half hours, 
the balance of the minimum period for that job will be cancelled and the 
employee will only be paid up to the commencement of the next work period. 
The employee will then be entitled to be paid for a minimum of half hour, one 
hour or one and a half hours as the case may be for the next work period.

(d) Overtime worked in circumstances specified in clause 20.7 will not be 
regarded as overtime for the purposes of clause 20.4 where the time worked is 








[2021] FWCFB 2383

346

less than 3 hours during the work period or each work period. Provided that 
where the total number of hours worked on more than one work period is 4 
hours or more then the provisions of clauses 20.4(b) will apply.

(e) Overtime worked in circumstances specified in clause 20.7 will not be 
regarded as overtime for the purposes of clause 20.6.








[2021] FWCFB 2383

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ATTACHMENT I – SUBMISSIONS AND EVIDENCE – CLIENT CANCELLATION 
CLAIMS

Part A – Index of evidence relied upon by parties

Documents

# EXHIBIT NO. DOCUMENT

1 ABI2 Witness Statement of Darren Mathewson
- ABI - whole 

2 ABI3 Witness Statement of Jeffrey Wright
- ABI - paras 25-29, 38; CB470
- NDS - paras 25-31

3 ABI5 Witness Statement of Graham Shanahan
- ABI - paras 20-27; CB155 
- NDS - paras 20-28

4 ABI6 Witness Statement of Deb Ryan
- ABI - paras 46-50; CB190
- NDS - paras 46-53

5 ABI7 Witness Statement of Scott Harvey
- ABI - paras 32-43; CB162
- ASU - CB162, CB166
- NDS - paras 32-48

6 ABI8 Witness Statement of Wendy Mason
- ABI - paras 40-42; CB477
- NDS - paras 40-48

7 ABI9 Witness Statement of Joyce Wang
- ABI - paras 35-40; CB200 
- ASU - CB200
- NDS - paras 25-42

8 ASU4 Expert Report of Dr Jim Stanford
- ASU – whole

9 HSU1 Witness Statement of Mark Farthing
- HSU - CB2926-2932

10 HSU2 Further Witness Statement of Mark Farthing
ASU - paras 6-10, 23-32

- HSU - CB2981-2987
- UWU – paras 6-10, 23-32

11 HSU3 Witness Statement of William Elrick
- HSU - CB2933-2940








[2021] FWCFB 2383

348

# EXHIBIT NO. DOCUMENT

12 HSU4 Witness Statement of Heather Waddell
- HSU - CB2956-2960

13 HSU5 Witness Statement of Christopher Friend
- Ai Group - para 30; CB2947
- HSU - CB2945-2951

14 HSU14 CCO Schedule of rates
- HSU - whole

15 HSU15 Same Day Cancellation Log
- HSU - whole
- UWU - whole

16 HSU16 Community Care Options Home Care Agreement Template
- UWU - whole

17 HSU19 Baptist Care Commonwealth Home Support Programme Proforma Service 
Agreement

- UWU - whole
- HSU - whole

18 HSU20 Baptist Care Home Care Agreement
- HSU - whole
- UWU - whole

19 HSU25 Statement of Fiona Macdonald
- HSU - CB2909-2923

20 HSU26 Witness Statement of Robert Sheehy
- HSU - CB2941-2944

21 HSU27 Witness Statement of Pamela Wilcock
- Ai Group - para 11; CB2953

22 HSU28 Witness Statement of Thelma Thames
- Ai Group – para 11; CB2962
- HSU - CB2961-2964

23 HSU32 Supplementary Witness Statement of Scott Quinn
- HSU - CB3051-3079

24 NDS1 Witness Statement of David Moody
- NDS - paras 64-66

25 NDS2 Witness Statement of Steven Miller
- ASU - CB4408
- NDS - paras 40-50








[2021] FWCFB 2383

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# EXHIBIT NO. DOCUMENT

26 UV1 Witness Statement of Trish Stewart
- Ai Group – para 10; CB4603
- UWU – para 10

27 UV4 Witness Statement of Deon Fleming
- Ai Group - paras 15-16; CB4481
- UWU - paras 13-16

28 CB2835 Draft determination
- HSU - CB2835-2838 

29 CB501 NDIA Efficient Cost Model
- ABI - CB501

30 CB489 NDIA Efficient Cost Model for Disability Support Workers
- ABI - CB489, CB503

31 CB4321 NDIS Price Guide 2019-2020
- HSU - CB4321-4368
- UWU - pp 12-13; CB2796
- ASU - pp 12-13; CB2796

32 CB1686 Predictability and control in working schedules by Dr Olav Muurlink
- ASU - CB1686

33 Stewart and Brown – Aged and Financial Performance Survey – Sector 
Report – Financial Year 2018*

- ABI - CB503 

34 Stewart and Brown – Aged and Financial Performance Survey – Sector 
Report – December 2018*

- ABI - CB541

* ABI filed updated versions of the Stewart & Brown reports on 10 August 2020.

Oral evidence

# TRANSCRIPT WITNESS

35 Transcript, 15 
October 2019

Oral evidence of Belinda Sinclair
- UWU - PN745

36 Transcript, 17 
October 2019

Oral evidence of Darren John Mathewson
- UWU - PN2421-PN2424

37 Transcript, 18 
October 2019

Oral evidence of Deborah Gaye Ryan
- UWU - PN3020-PN3032, PN3075-PN3080

39 Transcript Oral Evidence of Dr Jim Stanford
- ASU - PN2216-PN2289






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100820.pdf


[2021] FWCFB 2383

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39 Transcript, 18 
October 2019

Oral evidence of Graham Joseph Shanahan
- AFEI - PN2897
- HSU - PN2897
- UWU - PN2891-PN2897

40 Transcript, 17 
October 2019

Oral evidence of Jeffrey Wright 
- AFEI - PN2651, PN2702, PN2704

41 Transcript, 18 
October 2019

Oral evidence of Joyce Wang
- AFEI - PN3612
- ASU - PN3554-PN3568

42 Transcript, 18 
October 2019

Oral evidence of Scott Raymond Harvey
- AFEI - PN3136
- ASU - PN3117-PN3140
- UWU - PN3117-PN3140

43 Transcript, 17 
October 2019

Oral Evidence of Steven Miller
- ASU - PN1992-PN2081

44 Transcript, 18 
October 2019

Oral evidence of Wendy Mason
- AFEI - PN3274; PN3321
- HSU - PN3226-PN3249
- UWU - PN3220-PN3249, PN3273-PN3280

Part B - Index of party submissions

# DATE PARTY DOCUMENT

1
15 February 2019 HSU Outline of submissions

2
15 February 2019 HSU Amended draft determination

3
2 April 2019 ABI Draft determination

4
2 July 2019 ABI Submission

5
2 July 2019 NDS Submission

6
3 July 2019 AFEI Submission

7
12 July 2019 ABI Submission in reply

8
16 July 2019 NDS Submission in reply

9
23 July 2019 AFEI Submission in reply

10
13 September 2019 UWU Submission in reply

11
16 September 2019 HSU Submission in reply – ABI claims






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-160919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uv-130919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-afei-230719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-nds-160719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswc-120719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-030719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-020719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-anors-020719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-draftdet-abi-nswbc-020419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/2-am201826-draft-det-asu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/1-am201826-sub-asu-150219.pdf


[2021] FWCFB 2383

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# DATE PARTY DOCUMENT

12
16 September 2019 ASU Submission in reply – ABI claims

13
26 September 2019 Ai Group Submission in reply – ABI claims

14
4 October 2019 HSU Supplementary submissions in reply

15
12 October 2019 ABI Submission in reply – tranche 2

16
15 October 2019 ABI Amended draft determination

17
18 November 2019 UWU Submission

18
18 November 2019 Ai Group Submission

19
18 November 2019 HSU Submission

20
19 November 2019 ABI Submission

21
19 November 2019 NDS Submission

22
19 November 2019 AFEI Submission in reply

23
19 November 2019 ASU Submission

24
19 November 2019 AFEI Submission - findings

25
7 February 2020 NDS Submission – final – tranche 2

26
10 February 2020 Ai Group Submission - final

27
10 February 2020 ABI Submission – final – further amended draft 

determination

28
10 February 2020 Unions Submission - final

29
11 February 2020 AFEI Submission - final

30
26 February 2020 Unions Submission in reply - final

31
26 February 2020 ABI Submission in reply - final

32
26 February 2020 AFEI Submission in reply - final

33
26 February 2020 NDS Submission in reply - final

34
26 February 2020 Ai Group Submission in reply - final

35
11 March 2020 ABI Submission – background papers 2 & 3

36
11 March 2020 Ai Group Submission – background paper 3

37
11 March 2020 AFEI Submission – background papers 2 & 3






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-background-paper-3-aig-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-q-abiandors-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-andors-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-unions-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asuandors-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-subs-tranche2-nds-070220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-findings-afei-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uwu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-draft-det-abinswbc-151019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-abiandors-121019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-031019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-260919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-160919.pdf


[2021] FWCFB 2383

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# DATE PARTY DOCUMENT

38
17 March 2020 ABI Submission – background paper 3

39
17 March 2020 AFEI Submission – background paper 3

40
18 March 2020 UWU Submission – background paper 3

41
20 March 2020 Ai Group Submission – background paper 3

42
23 March 2020 ASU Submission – background paper 3






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-q1-asu-230320.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-q1-aig-200320.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-uwu-180320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-corrections-afei-170320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-abiandors-170320.pdf


[2021] FWCFB 2383

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ATTACHMENT J – SUBMISSIONS AND EVIDENCE – CLOTHING AND 
EQUIPMENT CLAIMS

Part A – Index of evidence relied upon by parties

Documents

#
EXHIBIT 
NO. DOCUMENT

1 ABI2 Witness Statement of Darren Mathewson
- ABI - CB211-469

2 HSU3 Witness Statement of William Elrick
- ABI - paras 38-39, 41-42
- AFEI - para 39
- HSU - CB2933-2940

3 HSU4 Witness Statement of Heather Waddell
- ABI - paras 33-34
- AFEI - para 34
- Ai Group - para 34
- HSU - paras 15-16, 33-34; CB2956-2960

4 HSU26 Witness Statement of Robert Sheehy
- ABI - paras 14-15
- AFEI - para 14
- HSU - paras 14-16; CB2941-2944

5 HSU27 Witness Statement of Pamela Wilcock
- ABI - para 13
- AFEI - para 90
- Ai Group - para 13
- HSU - paras 13-14; CB2952-2955

6 HSU28 Witness Statement of Thelma Thames
- HSU - CB2961-2964

7 UV6 Witness Statement of Belinda Sinclair
- ABI - para 18
- AFEI - para 18, para 20, Annexure B
- Ai Group - paras 18-21
- UWU - para 18-21

8 CB489 NDIA Efficient Cost Model for Disability Support Workers
- ABI - CB489-501

9 CB501 NDIA Efficient Cost Model
- ABI - CB501-502








[2021] FWCFB 2383

354

#
EXHIBIT 
NO. DOCUMENT

10 Stewart and Brown – Aged and Financial Performance Survey – Sector 
Report – Financial Year 2018*

- ABI - CB503-540

11 Stewart and Brown – Aged and Financial Performance Survey – Sector 
Report – December 2018*

- ABI - CB541-584

* ABI filed updated versions of the Stewart & Brown reports on 10 August 2020.

Oral evidence

# DATE WITNESS
12 Transcript, 

15 October 
2019

Oral evidence of Belinda Sinclair
- AFEI - PN628

13 Transcript, 
17 October 
2019

Oral evidence of Jeffrey Wright
- HSU - PN2582-PN2582

14 Transcript, 
18 October 
2019

Oral evidence of Joyce Wang
- Ai Group - PN3608

Part B – Submissions

#
Date Party Document

1 7 November 2018 UWU Draft determination

2 9 November 2018 HSU Draft determination

3 15 February 2019 HSU Submission

4 15 February 2019 UWU Submission

5 8 April 2019 Ai Group Submission in reply

6 12 July 2019 ABI Submission in reply

7 13 July 2019 Ai Group Submission

8 15 July 2019 Business SA Submission

9 23 July 2019 AFEI Submission in reply

10 3 October 2019 UWU Draft determination






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-draftdet-uv-031019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-afei-230719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-bussa-150719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-130719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswc-120719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-080419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2018-26-sub-uv-ws-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/1-am201826-sub-asu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014285-draftdet-hsu-091118.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-draft-det-uv-071118.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100820.pdf


[2021] FWCFB 2383

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#
Date Party Document

11 11 October 2019 ABI Submission

12 18 November 2019 Ai Group Submission

13 18 November 2019 HSU Submission

14 18 November 2019 UWU Submission

15 19 November 2019 ABI Submission

16 19 November 2019 NDS Submission

17 7 February 2020 NDS Submission

18 10 February 2020 ABI Submission

19 10 February 2020 Ai Group Submission

20 10 February 2020 Joint Unions Submission

21 11 February 2020 AFEI Submission

22 26 February 2020 ABI Submission in reply

23 26 February 2020 Ai Group Submission in reply

24 26 February 2020 AFEI Submission in reply

25 11 March 2020 AFEI Submission

26 17 March 2020 ABI Submission

27 17 March 2020 AFEI Submission

28 17 March 2020 HSU Submission

29 18 March 2020 UWU Submission

30 20 March 2020 Ai Group Submission






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-q1-aig-200320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-uwu-180320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-hsu-170320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-corrections-afei-170320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-abiandors-170320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-andors-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asuandors-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-subs-tranche2-nds-070220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uwu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-corr-abiandors-111019.pdf


[2021] FWCFB 2383

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ATTACHMENT K – SUBMISSIONS AND EVIDENCE – OVERTIME FOR PART-
TIME ND CASUAL WORKERS CLAIM

Part A – Index of evidence relied upon by parties

Documents

#
EXHIBIT 
NO. DOCUMENT

1 ABI2 Witness Statement of Darren Mathewson
- ABI - whole - CB211-470

2 ABI3 Witness Statement of Jeffrey Wright
- ABI - whole - CB470-476
- AFEI - paras 35- 36

3 ABI5 Witness Statement of Graham Shanahan
- ABI - whole - CB155-162
- AFEI – paras 29-32

4 ABI6 Witness Statement of Deb Ryan
- ABI - whole - CB190-200
- AFEI - paras 54-59

5 ABI7 Witness Statement of Scott Harvey
- ABI - whole - CB162-180
- AFEI - paras 49-52

6 ABI8 Witness Statement of Wendy Mason
- ABI - whole - CB477-488

7 ABI9 Witness Statement of Joyce Wang
- ABI - whole - CB200-210
- AFEI - paras 43-50

8 ASU10 Witness Statement of Augustino Encabo
- ABI - para 21

9 ASU2 Witness Statement of Robert Steiner 
- HSU - para 17; CB1225

10 ASU9 Witness Statement of Richard Rathbone
- ABI - paras 21-22

11 HSU25 Witness Statement of Fiona Macdonald
- HSU - whole; CB2902-2925








[2021] FWCFB 2383

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#
EXHIBIT 
NO. DOCUMENT

12 HSU26 Witness Statement of Robert Sheehy
- HSU - whole, CB2941-2944

13 HSU27 Witness Statement of Pamela Wilcock
- ABI - para 4
- HSU - para 10; CB2952-2955

14 HSU28 Witness Statement of Thelma Thames
- ABI - para 9
- AFEI - para 9
- Ai Group – para 9; CB2962
- HSU - paras 6-7; CB2961-2964

15 HSU29 Witness Statement of Bernie Lobert
- ABI - para 21
- HSU - para 21; CB2965-2968

16 HSU3 Witness Statement of William Elrick
- HSU - whole, CB2933-2940

17 HSU30 Witness Statement of James Eddington
- HSU whole, CB2969-2980

18 HSU31 Witness Statement of Scott Quinn
- HSU - para 43; CB2988-3050
- ABI - paras 15, 30

19 HSU32 Supplementary Witness Statement of Scott Quinn
- HSU - whole, CB3051-3079

20 HSU4 Witness Statement of Heather Waddell
- ABI - para 20
- HSU - para 27; CB2956-2960

21 HSU5 Witness Statement of Christopher Friend
- HSU - whole, CB2945-2951

22 UV1 Witness Statement of Trish Stewart
- AFEI - para 11
- Ai Group - para 11; CB4603

23 UV4 Witness Statement of Deon Fleming
- AFEI - para 17

24 CB181 Witness Statement of Andrew Collins
- AFEI - paras 37-43








[2021] FWCFB 2383

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#
EXHIBIT 
NO. DOCUMENT

25 CB489 NDIA Efficient Cost Model for Disability Support Workers
- ABI - CB489-501

26 NDIA Efficient Cost Model 
ABI - CB501

27 Stewart and Brown - Aged and Financial Performance Survey – Sector 
Report - Financial Year 2018*

- ABI - CB503-540.

28 Stewart and Brown – Aged and Financial Performance Survey – Sector 
Report – December 2018*
ABI – CB541-585

* ABI filed updated versions of the Stewart & Brown reports on 10 August 2020.

Oral evidence

# DATE WITNESS

29 Transcript, 
15 October 
2019

Oral evidence of Belinda Sinclair
- AFEI - PN612-PN613, PN674, PN717-PN723

30 Transcript, 
18 October 
2019

Oral evidence of Graham Shanahan
- AFEI - PN2897

31 Transcript, 
17 October 
2019

Oral evidence of Jeffrey Wright
- ABI - PN2659, PN2662-2664
- AFEI - PN2623, PN2659, PN2727, PN2702-PN2704

32 Transcript, 
18 October 
2019

Oral evidence of Joyce Wang
- AFEI - PN3603, PN3604, PN3612
- Ai Group - PN3589-PN3604

33 Transcript, 
18 October 
2019

Oral evidence of Scott Harvey
- AFEI - PN3136

34 Transcript, 
18 October 
2019

Oral evidence of Wendy Mason
- AFEI - PN3274, PN3321

Part B - Submissions

#
Date Party Document

1 7 November 2018 UWU Draft determination

2 9 November 2018 HSU Draft determination






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014285-draftdet-hsu-091118.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-draft-det-uv-071118.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100820.pdf


[2021] FWCFB 2383

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#
Date Party Document

3 15 February 2019 HSU Draft determination

4 15 February 2019 HSU Submission

5 15 February 2019 UWU Submission

6 5 April 2019 ABI Submission

7 5 April 2019 Business SA Submission

8 8 April 2019 AFEI Submission

9 8 April 2019 Ai Group Submission

10 8 April 2019 NDS Submission  

11 3 July 2019 AFEI Submission - survey

12 3 July 2019 Ai Group Submission - survey

13 3 July 2019 UWU Submission - survey

14 5 July 2019 ASU Submission - survey

15 10 July 2019 ABI Submission - survey

16 12 July 2019 ABI Submission in reply

17 13 July 2019 Ai Group Submission

18 23 July 2019 AFEI Submission in reply

19 20 September 2019 ABI Submission

20 20 September 2019 Ai Group Submission

21 20 September 2019 VHIA Submission

22 23 September 2019 AFEI Submission

23 23 September 2019 HSU Submission

24 23 September 2019 UWU Submission

25 3 October 2019 UWU Submission

26 3 October 2019 HSU Submission

27 4 October 2019 HSU Submission






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-hsu-041019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-031019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-transition-uv-031019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uv-230919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-230919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-230919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-vhia-200919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aigroup-200919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-abinswbc-ors-200919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-afei-230719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-130719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswc-120719.pdf
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-asu-survey-050719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826--sub-uv-030719.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-sub-nds-080419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-080419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-080419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-bussa-050419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswbc-050419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2018-26-sub-uv-ws-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/1-am201826-sub-asu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/2-am201826-draft-det-asu-150219.pdf


[2021] FWCFB 2383

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#
Date Party Document

28 18 November 2019 Ai Group Submission

29 18 November 2019 HSU Submission

30 18 November 2019 UWU Submission

31 19 November 2019 ABI Submission

32 19 November 2019 AFEI Submission

33 19 November 2019 NDS Submission

34 19 November 2019 ASU Submission

35 7 February 2020 NDS Submission

36 10 February 2020 ABI Submission

37 10 February 2020 Ai Group Submission

38 10 February 2020 Joint Unions Submission

39 11 February 2020 AFEI Submission

40 26 February 2020 ABI Submission

41 26 February 2020 Ai Group Submission

42 26 February 2020 Joint Union Submission

43 26 February 2020 AFEI Submission

44 10 March 2020 Joint Union Submission

45 10 March 2020 NDS Submission

46 11 March 2020 ABI Submission

47 11 March 2020 AFEI Submission

48 11 March 2020 Ai Group Submission

49 17 March 2020 AFEI Submission

50 20 July 2020 Joint Unions Submission

51 10 August 2020 ABI Submission






https://www.fwc.gov.au/documents/sites/awardsmaodernfouryr/am201826-sub-abi-100820.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-corr-hsu-andors-200720.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-corrections-afei-170320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-background-paper-3-aig-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-q-abiandors-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201816-sub-hsu-andors-100320.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-afei-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-unions-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-andors-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asuandors-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-subs-tranche2-nds-070220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-findings-afei-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uwu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-181119.pdf


[2021] FWCFB 2383

361

ATTACHMENT L – SUBMISSIONS AND EVIDENCE – 24-HOUR-CARE CLAIM

Part A – Index of evidence relied upon by parties

Documents

# EXHIBIT 
NO.

DOCUMENT

1 HSU3 Witness Statement of William Elrick
- HSU – paras 28-29; CB2933-2940

2 HSU26 Witness Statement of Robert Sheehy
- HSU – para 10; CB2941-2944

3 HSU30 Witness Statement of James Eddington
- HSU – paras 51 - 54; CB2969-2980

Oral evidence

NA

Part B – Submissions

# Date Party Document

1 15 October 2018 Jobs Australia Submission

2 7 November 2018 Jobs Australia Draft determination

3 7 November 2018 UWU Draft determination

4 9 November 2018 HSU Draft determination

5 15 February 2019 ASU Submission

6 15 February 2019 UWU Submission

7 5 April 2019 ABI Submission

8 5 April 2019 Jobs Australia Submission in reply

9 5 April 2019 NDS Submission  

10 8 April 2019 AFEI Submission

11 3 July 2019 AFEI Submission - survey

12 3 July 2019 UWU Submission






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826--sub-uv-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-sub-afei-080419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-080419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-ja-050419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswbc-050419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2018-26-sub-uv-ws-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/1-am201826-sub-asu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014285-draftdet-hsu-091118.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-draft-det-uv-071118.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014285-draft-det-ja-071118.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-ja-151018.pdf


[2021] FWCFB 2383

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# Date Party Document

13 5 July 2019 ASU Submission - survey

14 10 July 2019 ABI Submission - survey

15 16 September 2019 ASU Submission in reply

16 13 November 2019 UWU Submission

17 21 November 2019 ABI Submission

18 7 February 2020 NDS Submission

19 10 February 2020 ABI Submission

20 10 February 2020 Joint Unions Submission

21 11 February 2020 AFEI Submission

22 26 February 2020 ABI Submission

23 26 February 2020 Joint Union Submission

24 10 March 2020 Joint Union Submission

25 10 March 2020 NDS Submission

26 11 March 2020 ABI Submission

27 11 March 2020 AFEI Submission






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-q-abiandors-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201816-sub-hsu-andors-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-unions-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-andors-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asuandors-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-subs-tranche2-nds-070220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-211119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-draftdet-uwu-andanor-131119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-160919.pdf
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-asu-survey-050719.pdf


[2021] FWCFB 2383

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ATTACHMENT M – SUBMISSIONS AND EVIDENCE – SLEEPOVER CLAIM

Part A – Index of evidence relied upon by parties

Documents

#
EXHIBIT 
NO. DOCUMENT

1 ABI2 Witness Statement of Darren Mathewson
- ABI - CB211-469

2 ASU2 Witness Statement of Robert Steiner 
- ABI – para 14

3 ASU10 Witness Statement of Augustino Encabo 
- ABI – para 27

4 HSU3 Witness Statement of William Elrick
- ABI – para 27
- HSU - para 27; CB2933-2940

5 CB489 NDIA Efficient Cost Model for Disability Support Workers
- ABI - CB-489-500

6 CB501 NDIA Efficient Cost Model
- ABI - CB501-502

7 Stewart and Brown – Aged and Financial Performance Survey – Sector 
Report – Financial Year 2018*

- ABI - CB503, CB541

* ABI filed updated versions of the Stewart & Brown reports on 10 August 2020.

Oral evidence

NA

Part B – Submissions

# Date Party Document

1 7 November 2018 UWU Draft determination

2 9 November 2018 HSU Draft determination

3 15 February 2019 HSU Submission

4 15 February 2019 UWU Submission






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2018-26-sub-uv-ws-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/1-am201826-sub-asu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014285-draftdet-hsu-091118.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-draft-det-uv-071118.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100820.pdf


[2021] FWCFB 2383

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# Date Party Document

5 8 April 2019 Ai Group Submission

6 12 July 2019 ABI Submission in reply

7 13 July 2019 Ai Group Submission

8 23 July 2019 AFEI Submission in reply

9 16 September 2019 ASU Submission in reply

10 18 November 2019 Ai Group Submission

11 18 November 2019 HSU Submission

12 19 November 2019 ABI Submission

13 19 November 2019 NDS Submission

14 19 November 2019 AFEI Submission

15 7 February 2020 NDS Submission

16 10 February 2020 ABI Submission

17 10 February 2020 Ai Group Submission

18 10 February 2020 Joint Unions Submission

19 11 February 2020 AFEI Submission

20 26 February 2020 ABI Submission

21 26 February 2020 Ai Group Submission

22 26 February 2020 AFEI Submission

23 17 March 2020 ABI Submission

24 20 July 2020 Joint Unions Submission

25 10 August 2020 ABI Submission






https://www.fwc.gov.au/documents/sites/awardsmaodernfouryr/am201826-sub-abi-100820.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-corr-hsu-andors-200720.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-backgroundpaper-3-abiandors-170320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-andors-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asuandors-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-subs-tranche2-nds-070220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-findings-afei-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-160919.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-afei-230719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-130719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswc-120719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-080419.pdf


[2021] FWCFB 2383

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ATTACHMENT N – SUBMISSIONS AND EVIDENCE – MOBILE PHONE 
ALLOWANCE CLAIM

Part A – Index of evidence relied upon by parties

Documents

TAB EXHIBIT NO DOCUMENT

1 ABI2 Witness Statement of Darren Mathewson
- ABI - CB211

2 ABI3 Witness Statement of Jeffrey Wright 
- ABI - CB470

3 ABI8 Witness Statement of Wendy Mason
- ABI - CB477

4 ASU2 Witness Statement of Robert Steiner
- HSU - CB1225

5 HSU3 Witness Statement of William Elrick
- ABI - paras 30-31
- AFEI - para 30
- Ai Group - para 30
- HSU - paras 30-33; CB2933-2940
- UWU - paras 30-33

6 HSU4 Witness Statement of Heather Waddell
- ABI - para 31
- Ai Group - para 31
- HSU - paras 31-32; CB2956-2960
- NDS - paras 31-32

7 HSU5 Witness Statement of Christopher Friend
- HSU - CB2945-2951

8 HSU26 Witness Statement of Robert Sheehy
- ABI - para 13
- AFEI - paras 12-13
- Ai Group - paras 12-13
- HSU - paras 11-13; CB2941-2944
- NDS - paras 11-13

9 HSU29 Witness Statement of Bernie Lobert
- Ai Group - para 20
- ABI - paras 18, 20
- HSU - paras 18, 20; CB2965-2968

10 HSU27 Witness Statement of Pamela Wilcock
- ABI - para 19
- Ai Group - para 19
- HSU - CB2952-2955
- NDS - paras 19-20








[2021] FWCFB 2383

366

11 HSU28 Witness Statement of Thelma Thames
- ABI - para 22
- Ai Group - para 22
- HSU - CB2961-2964
- NDS - para 22

12 HSU30 Witness Statement of James Eddington
- HSU - CB2969-2980

13 HSU32 Supplementary Witness Statement of Scott Quinn
- HSU - paras 23, 35; CB3051-3079

14 UV1 Witness Statement of Trish Stewart
- ABI - paras 20-21
- AFEI - para 21
- Ai Group - paras 20-22
- NDS - paras 20-22
- UWU - paras 20-22

15 UV4 Witness Statement of Deon Fleming
- ABI - paras 25, 27, 29
- AFEI - para 27
- Ai Group - para 27
- NDS - paras 25-30
- UWU - paras 25-30
-

16 UV6 Witness Statement of Belinda Sinclair
- ABI - paras 15-16
- AFEI - para 15
- Ai Group - paras 15-17
- UWU - paras 15-17

17 CB4416 Draft determination
- UWU - para 3; CB4416

18 CB2835 Draft determination
- HSU - whole

19 CB501 NDIA Efficient Cost Model
- ABI - CB501

20 CB489 NDIA Efficient Cost Model for Disability Support Workers
- ABI - CB489

21 Stewart and Brown – Aged and Financial Performance Survey – Sector Report 
– Financial Year 2018*

- ABI - CB503

22 Stewart and Brown – Aged and Financial Performance Survey – Sector 
Report – December 2018*

- ABI - pp 5, 6, 27, 29; CB541

* ABI filed updated versions of the Stewart & Brown reports on 10 August 2020.






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100820.pdf


[2021] FWCFB 2383

367

Oral evidence

# TRANSCRIPT WITNESS

23 Transcript, 16 
October 2019

Oral evidence of Deborah Anderson 
- AFEI - PN1005, PN1011-PN1013

24 Transcript, 15 
October 2019

Oral evidence of Deon Fleming
- ABI - PN534-PN540
- AFEI - PN547-PN549
- Ai Group - PN534-PN537, PN547-PN549
- NDS - PN533-PN540
- UWU - PN533-PN549

25 Transcript, 18 
October 2019

Oral evidence of Graham Joseph Shanahan
- HSU - PN2865-PN2870
- UWU - PN2865-PN2872

26 Transcript, 16 
October 2019

Oral evidence of Heather Waddell 
- NDS - PN1386-PN1414

27 Transcript, 17 
October 2019

Oral evidence of Jefferey Wright
- Ai Group - PN2585
- HSU - PN2584-PN2588
- UWU - PN2584-PN2588

28 Transcript, 18 
October 2019

Oral evidence of Joyce Wang
- UWU - PN3554-PN3568

29 Transcript, 15 
October 2019

Oral evidence of Trish Stewart
- ABI - PN440-PN452
- AFEI - PN441, PN448, PN452
- Ai Group - PN445-PN452
- NDS - PN445-PN456
- UWU - PN440-PN457

30 Transcript, 15 
October 2019

Oral evidence of William Gordon Elrick
- UWU - PN1075-PN1080








[2021] FWCFB 2383

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Part B - Index of party submissions

# DATE PARTY DOCUMENT

1 15 February 2019 UWU Submission

2 15 February 2019 HSU Submission

3 13 July 2019 Ai Group Submission in reply

4 12 July 2019 ABI Submission in reply

5 12 July 2019 Business SA Submission in reply

6 23 July 2019 AFEI Submission in reply

7 3 October 2019 HSU Submission in reply

8 3 October 2019 UWU Submission in reply – revised claim

9 18 November 2019 UWU Submission – findings sought and list of 
evidence

10 18 November 2019 Ai Group Submission – list of evidence

11 18 November 2019 HSU Submission – findings sought

12 19 November 2019 ABI Submission – findings sought and list of 
evidence

13 19 November 2019 NDS Submission – claims opposed and list of 
evidence

14 19 November 2019 AFEI Submission – findings sought

15 7 February 2020 NDS Submission – background paper

16 10 February 2020 Ai Group Submission – background paper

17 10 February 2020 ABI Submission – findings sought and 
background paper

18 10 February 2020 Unions (joint) Submission – background paper

19 11 February 2020 AFEI Submission – background paper

20 26 February 2020 Ai Group Submission in reply – final

21 26 February 2020 NDS Submission in reply – final






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asuandors-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-100220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-subs-tranche2-nds-070220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-findings-afei-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-191119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-uwu-181119.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-draftdet-uv-031019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-hsu-031019.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-reply-afei-230719.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/am201826-sub-reply-bussa-150719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswc-120719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-130719.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-ws-reports-hsu-150219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2018-26-sub-uv-ws-150219.pdf


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22 26 February 2020 AFEI Submission in reply – final

23 26 February 2020 ABI Submission in reply – final






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-andors-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-260220.pdf


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ATTACHMENT O – SUBMISSIONS AND EVIDENCE – COMMUNITY LANGUAGE 
ALLOWANCE CLAIM

Part A – Index of evidence relied upon by parties

Documents

# EXHIBIT NO. DOCUMENT

1 ASU11 Witness Statement of Dr Ruchita
- ASU - whole 

2 ASU12 Witness Statement of Nadia Saleh
- ASU - whole  

3 ASU13 Witness Statement of Natalie Lang
- ASU - whole 

4 ASU14 Witness Statement of Lou Bacchiella
- ASU - whole 

Oral evidence

# TRANSCRIPT WITNESS

5 Transcript, 16 
April 2019

Oral evidence of Dr Ruchita
- ASU - PN526-PN588

6 Transcript, 16 
April 2019

Oral evidence of Lou Bacchiella
- ASU - PN709-PN792

7 Transcript, 16
April 2019

Oral evidence of Nadia Saleh
- ASU - PN592-PN644

8 Transcript, 16 
April 2019

Oral evidence of Natalie Lang
- ASU - PN648-PN700

Part B - Index of party submissions

#
DATE PARTY DOCUMENT

1 7 November 2018 ASU Draft determination

2 18 February 2019 ASU Submission

3 5 April 2019 ABI Submission in reply

4 5 April 2019 NDS Submission in reply






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-080419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abinswbc-050419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-180219.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014285-draft-det-asu-071118.pdf


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#
DATE PARTY DOCUMENT

5 8 April 2019
Ai 
Group

Submission in reply

6 8 April 2019 AFEI Submission in reply

7 15 April 2019 ASU Draft determination – amended

8 17 May 2019
ASU 
and Ai 
Group

Joint submission – instruments with language 
allowances

9 17 May 2019 ASU Submission

10 17 May 2019 NDS Submission

11 19 May 2019 ABI Submission

12 22 May 2019 AFEI Submission

13 3 June 2019 ABI Submission in reply

14 4 June 2019 ASU Submission in reply

15 7 February 2020 ASU Submission – amended claim & draft determination

16 26 February 2020
Ai 
Group

Submission in reply – ASU amended claim

17 26 February 2020 NDS Submission in reply – ASU amended claim

18 26 February 2020 AFEI Submission in reply – ASU amended claim

19 26 February 2020 ABI Submission in reply – ASU amended claim

20 10 March 2020
Unions 
(joint)

Submission – background papers 2 & 3

21 10 March 2020 NDS Submission – background papers 2 & 3

22 11 March 2020 AFEI Submission – background papers 2 & 3

23 11 March 2020
Ai 
Group

Submission – background paper 3






https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-background-paper-3-aig-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-110320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201816-sub-hsu-andors-100320.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-abi-andors-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-nds-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-260220.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-subs-draft-asu-070220.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-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-nds-170519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-asu-170519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-285-report-asuors-170519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-285-report-asuors-170519.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-draft-det-asu-150419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-afei-080419.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am201826-sub-aig-080419.pdf


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ATTACHMENT P – DRAFT DETERMINATION


MA000100 PRXXXXXX AUSTRALIA, FairWork DRAFT DETERMINATION Commission Wowl- 1. .2000

s. 156-4 yearly review of modern awards Application to vary the Social, Community, Home Care and Disability Services Industry Award 2010 (AM2018/26 and AM2020/100) SOCIAL, COMMUNITY, HOME CARE AND DISABILITY SERVICES INDUSTRY AWARD 2010 [MA000100] Social, community, home care and disability services JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT CLANCY COMMISSIONER LEE MELBOURNE, XX MONTH 2021

Four yearly review of modern awards - Award stage - Group 4A awards - substantive issues - Social, Community, Home Care and Disability Services Industry Award 2010. A. Further to the decisions issued by the Full Bench of the Fair Work Commission on 4 May 2021 ([2021] FWCFB 2383) and XX MONTH 2021 ([2021] FWCFB XXXX), the above award is varied as follows: 1. By deleting clause 10.3 and inserting the following: 10.3 Part-time employment (a) A part-time employee is one who is engaged to work less than 38 hours per week or an average of less than 38 hours per week and who has reasonably predictable hours of work. (b) The terms of this award will apply to part-time employees on a pro-rata basis on the basis that the ordinary weekly hours of work for full-time employees are 38

(c) Before commencing employment, the employer and employee will agree in writing on: (i) a regular pattern of work including the number of ordinary hours to be worked each week (the guaranteed hours), and 1




 



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MA000100 PRXXXXXX (ii) the days of the week the employee will work and the starting and finishing times each day. (d) The agreed regular pattern of work does not necessarily have to provide for the same guaranteed hours each week. (e) The agreement made pursuant to clause 10.3(c) may subsequently be varied by

agreement between the employer and employee in writing. Any such agreement may be ongoing or for a specified period of time. (f) Nothing in clause 10.3(e) requires an employee to agree to any change in their guaranteed hours Commented [FWC1]: See decision at [987]. (g) Review of guaranteed hours (i) Where a part-time employee has regularly worked more than their guaranteed hours for at least 12 months, the employee may request in writing that the employer vary the agreement made under clause 10.3(c) to reflect the ordinary hours regularly being worked. (ii) The employer must respond in writing to the employee's request within 21 days. (iii) The employer may refuse the request only on reasonable business grounds.

EXAMPLE: Reasonable business grounds to refuse the request may include that the reason that the employee has regularly worked additional agreed hours is temporary-for example where this is the direct result of another employee being absent on annual leave. For home care employees, reasonable business grounds to refuse a request may also include the lack of continuity of funding, changes in client numbers and client preferences. Commented [FWC2]: This example is adapted from the ABI (iv) Before refusing a request made under clause 10.3(g)(i), the employer must proposal. discuss the request with the employee and genuinely try to reach agreement on an increase to the employee's guaranteed hours that will give the employee more predictable hours of work and reasonably accommodate the employee's circumstances. (v) If the employer and employee agree to vary the agreement made under clause 10.3(c), the employer's written response must record the agreed variation. (vi) If the employer and employee do not reach agreement, the employer's

written response must set out the grounds on which the employer has refused the employee's request. (vii) Clause 10.3(g) is intended to operate in conjunction with clause 10.3(e) and does not prevent an employee and employer from agreeing to vary the agreement made under clause 10.3(c) in other circumstances. Commented [FWC3]: This example is adapted from the ABI proposal. 2




 



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MA000100 PRXXXXXX 2. By deleting clause 10.4(c). 3. By renumbering clause 10.5 as 10.6. 4. By inserting a new clause 10.5 as follows: 10.5 Minimum payments for part-time and casual employees Commented [FWC4]: See decision

Part-time and casual employees will be paid for the following minimum number of hours, at the appropriate rate, for each shift or period of work in a broken shift: (a) social and community services employees (except when undertaking disability services work)-3 hours; (b) all other employees-2 hours. 5. By deleting Note 1 and Note 2 appearing at the beginning of clause 15. 6. By inserting the following note as a new paragraph after the end of clause 15: NOTE 1: A transitional pay equity order taken to have been made pursuant to item 30A of Schedule 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) has effect in accordance with that item. Transitional pay equity orders operate in Queensland as provided for in items 30A (6) and (7).

7. By inserting the following note as a new paragraph after the end of clause 15: NOTE 2: An equal remuneration order [PR525485] also applies to employees in the classifications in Schedule B-Classification Definitions-Social and Community Services Employees and Schedule C-Classification Definitions-Crisis Accommodation Employees of this award. The final rates of pay resulting from the equal remuneration order are set out below. The 'current hourly wage' and 'current weekly wage' in the tables below form employees' ordinary rates of pay for all purposes: Commented [FWC5]: See decision at [1259]. Equal remuneration rates for applicable Social and Community Services employees-from 1 December 2020 Minimum Final ERO Current Current Clause weekly Rate weekly hourly wage Percentage wage wage Classification $ % $ $ Social and community 150

services employee level 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 3




 



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MA000100 PRXXXXXX Minimum Final ERO Current Current Clause weekly Rate weekly hourly wage Percentage wage wage Social and community services employee level 3 15.3 Pay point 1 (associate

diploma/advanced 957.60 126 1206.58 31.75 certificate) 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 s 1214.00 - 1004.00 45.19 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 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 54.76 101

Idy polit - .702.70 2121.41 JJ.04 4




 



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MA000100 PRXXXXXX Equal remuneration rates for Crisis Accommodation employees-from 1 December 2020 Minimum Final Clause weekly Rate Current Current Percentag weekly hourly wage wage wage

Classification $ 70 $ $ Crisis accommodation employee Level 1 15.3 Pay point 1 (associate diploma/advanced 957.60 126 1206.58 31.75 certificate) 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 8. By inserting clause 20.10 as follows: 20.10 Broken shift allowance Commented [FWC6]: See decision at [547]-[556]. (a) An employee required to work a broken shift with 1 unpaid break in accordance

with clause 25.6(a) will be paid an allowance of 1.7% of the standard rate, per broken shift. (b) An employee who agrees to work a broken shift with 2 unpaid breaks in accordance with clause 25.6(b) will be paid an allowance of 2.5% of the standard rate, per broken shift. 5




 



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MA000100 PRXXXXXX 9. By deleting clause 25.5(d)(ii) and inserting the following: Commented [FWC7]: See decision at [643]. (ii) However, a roster may be changed at any time: (A) if the change is proposed by an employee to accommodate an agreed shift swap with another employee; or

(B) to enable the service of the organisation to be carried on where another employee is absent from duty on account of illness, or in an emergency. Commented [FWC8]: This is the current 25.5 (d)(ii) wording which has 10. By deleting clause 25.5(f) and inserting the following: been retained. (f) Client cancellation Commented [FWC9]: See decision at [830], [822], [823] and [818]. (i) Clause 25.5(f) applies where a client cancels or changes a scheduled home care or disability service, within 7 days of the scheduled service, which a full-time or part-time employee was rostered to provide. (ii) Where a service is cancelled by a client under clause 25.5(f)(i), the employer may either: (A) direct the employee to perform other work during those hours in which they were rostered; or

(B) cancel the rostered shift. (iii) Where clause 25.5(f)(ii)(A) applies, the employee will be paid the amount payable had the employee performed the cancelled service or the amount payable in respect of the work actually performed, whichever is the greater. (iv) Where clause 25.5(f)(ii)(B) applies, the employer must either: (A) pay the employee the amount they would have received had the shift not been cancelled; or (B) subject to clauses 25.5(f)(v) and (vi), provide the employee with make up time in accordance with clause 25.5(f)(vii). (v) The make up time arrangement can only be used where the employee was notified of the cancelled shift at least 12 hours prior to the scheduled commencement of the shift. In these cases, clause 25.5(f)(iv)(A) applies.

(vi) The make up time arrangement cannot be used where the employer is permitted to charge the client in respect of the cancelled service. In these cases, clause 25.5(f)(iv)(A) applies. (vii) Where the employer elects to provide make up time: (A) the make up time must be rostered in accordance with clause 25.5(a); 6




 



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MA000100 PRXXXXXX (B) the make up time must be rostered to be performed within 6 weeks of the date of the cancelled shift; (C) the employer must consult with the employee in accordance with clause 8A regarding when the make up time is to be worked prior to rostering the make up time; and

(D) the make up shift can include work with other clients or in other areas of the employer's business provided the employee has the skill and competence to perform the work. (viii) Clause 25.5(f) is intended to operate in conjunction with clause 25.5(d) and does not prevent an employer from changing a roster under clause 25.5(d)(i) or (ii). 11. By deleting clause 25.6 and inserting the following: Commented [FWC10]: See decision at [488]. 25.6 Broken shifts This clause only applies to social and community services employees when undertaking disability services work and home care employees. (a) Broken shift with 1 unpaid break (i) An employer may only roster an employee to work a broken shift of 2

periods of work with I unpaid break (other than a meal break ). (ii) An employee rostered to work a broken shift with 1 unpaid break must be paid the allowance in clause 20.10(a). (b) Agreement to work a broken shift with 2 unpaid breaks Despite clause 25.6(a), an employer and an employee may agree that the employee will be rostered to work a broken shift of 3 periods of work with 2 unpaid breaks (other than meal breaks). (ii) An agreement under clause 25.6(b)(i) must be made on each occasion that the employee will be rostered to work a broken shift with 2 unpaid breaks. (iii) An employee rostered to work a broken shift with 2 unpaid breaks must be paid the allowance in clause 20.10(b). (c) Where a break in work falls within a minimum payment period in accordance

with clause 10.5 then it is to be counted as time worked and does not constitute a break in a shift for the purposes of clause 25.6(a)(i) or clause 25.6(b)(i). (d) Payment for a broken shift will be at ordinary pay with weekend and overtime penalty rates to be paid in accordance with clauses 26 and 28. 7




 



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MA000100 PRXXXXXX (e) The span of hours for a broken shift is up to 12 hours. All work performed beyond a span of 12 hours will be paid at double time. (f) An employee must receive a minimum break of 10 hours between broken shifts rostered on successive days. 12. By deleting clause 25.7(c) and inserting the following:

(c) The span for a sleepover will be a continuous period of 8 hours. Employees will be provided with a separate room with a bed and clean linen, the use of appropriate facilities (including access to food preparation facilities and staff facilities where these exist) and free board and lodging for each night when the employee sleeps over. 13. By deleting clause 25.8 and inserting the following: 25.8 24-hour care Commented [FWC11]: See decision at [1071]. 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 8 hours of care during this period.

(b) An employer may only require an employee to work a 24-hour care shift by agreement. (c) The employee will be afforded the opportunity to sleep for a continuous period of 8 hours during a 24-hour care shift and employees will be provided with a separate room with a bed and clean linen, the use of appropriate facilities (including access to food preparation facilities and staff facilities where these exist) and free board and lodging for each night when the employee sleeps over. (d) The employee will be paid 8 hours' work at 155% of their appropriate rate for each 24-hour period. (e) If the employee is required to perform more than 8 hours' work during a 24-hour care shift, that work shall be treated as overtime and paid at the rate of time and a half for the first 2 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. An employer and employee may utilise the TOIL arrangement in accordance with clause 28.2

(f) An employee may refuse to work more than 8 hours' work during a 24-hour care shift in circumstances where the requirement to work those additional hours is unreasonable. 8




 



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MA000100 PRXXXXXX 14. By deleting clause 28.1 and inserting the following: 28.1 Overtime rates (a) Full-time employees A full-time employee will be paid the following payments for all work done in

addition to their rostered ordinary hours on any day or outside the span of hours (day workers only): (i) disability services, home care and day care employees-for all authorised overtime on Monday to Saturday, payment will be made at the rate of time and a half for the first 2 hours and double time thereafter; (ii) social and community services and crisis accommodation employees-for all authorised overtime on Monday to Saturday, payment will be made at the rate of time and a half for the first 3 hours and double time thereafter; (iii) for all authorised overtime on a Sunday, payment will be made at the rate of double time; (iv) for all authorised overtime on a public holiday, payment will be made at the rate of double time and a half; and (v) overtime rates under this clause will be in substitution for, and not

cumulative upon, the shift premiums prescribed in clause 29-Shiftwork and Saturday and Sunday work premiums prescribed in clause 26- Saturday and Sunday work. (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 2 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 2 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) All time worked outside the span of hours by part-time and casual day workers will be paid for at the rate of time and a half for the first two hours 9




 



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MA000100 PRXXXXXX 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. Commented [FWC12]: See decision at [556] (v) Overtime rates payable under clause 28.1(b) 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 Sunday. 15. By deleting clause 31.2 and inserting the following: 31.2 Quantum of leave Commented [FWC13]: See decision at [1071] For the purpose of the NES, a shiftworker is: (a) an employee who works for more than 4 ordinary hours on 10 or more weekends during the yearly period in respect of which their annual leave accrues; or (b) an employee who works at least eight 24-hour care shifts in accordance with clause 25.8; and is entitled to an additional week's annual leave on the same terms and conditions. 16. By updating cross-references accordingly.

B This determination comes into operation on 1 October 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 October 2021. PRESIDENT Printed by authority of the Commonwealth Government Printer

10

Cases cited by this decision: