1
Fair Work Act 2009
s.158—Application to vary or revoke a modern award
Aged Care Award 2010
(AM2020/99 and AM2021/63)
Nurses Award 2020
(AM2021/63)
Social, Community, Home Care and Disability Services Industry Award
2010
(AM2021/65)
DEPUTY PRESIDENT ASBURY
DEPUTY PRESIDENT O’NEILL
COMMISSIONER BISSETT BRISBANE, 17 NOVEMBER 2022
Applications to vary modern awards – work value – Aged Care Award 2010 – Nurses Award
2020 – Social, Community, Home Care and Disability Services Industry Award 2010 – Next
Steps – Stages 2 and 3.
[1] This case deals with 3 applications to vary modern awards to increase the minimum
wages of aged care sector workers:
1. AM2020/99 – an application by the Health Services Union (HSU) and a number of
individuals to vary the minimum wages and classifications in the Aged Care Award
2010 (Aged Care Award)
2. AM2021/63 – an application by the Australian Nursing and Midwifery Federation
(ANMF) to vary the Aged Care Award and the Nurses Award 2010, now the Nurses
Award 2020 (Nurses Award),1 and
3. AM2021/65 – an application by the HSU to vary the Social, Community, Home Care
and Disability Services Award 2010 (SCHADS Award) (the Applications).
[2] On 4 November 2022, the Full Bench constituted to hear and determine the Applications
issued a decision2 (November 2022 decision) which set out a summary of the Applications, an
overview of the legislative framework, summarised submissions and evidence received in the
1 The Nurses Award 2010 was varied and renamed the Nurses Award 2020 on 9 September 2021 per [2021] FWCFB 4504.
2 [2022] FWCFB 200.
[2022] FWCFB 208
STATEMENT
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/sites/work-value-aged-care/application/am202099-f46-amend-hsu-171120.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2021/am202163-application-f46-anmf-170521.pdf
https://www.fwc.gov.au/documents/awardmod/variations/2021/am202165-application-formf46-hsu-310521.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb4504.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb200.htm
[2022] FWCFB 208
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course of these proceedings, considered the aged care sector and made a number of evidentiary
findings.
[3] The Full Bench in the November 2022 decision determined to deal with these
Applications in three stages, with the November 2022 decision constituting Stage 1 of this
process. As part of Stage 1, the Full Bench made a decision that an interim increase to modern
award minimum wages applicable to direct care workers was justified by work value reasons.
[4] Stage 2 of these proceedings will consider submissions and evidence in relation to:
the timing and phasing in of the interim increase modern award minimum wages
applicable to direct care workers, including the appropriateness and application of the
principles canvassed at paragraphs [974]-[990] in the November 2022 decision;
whether making the interim increases to modern award minimum wages applicable to
direct care aged care employees in these proceedings is necessary to achieve the
modern awards objectives and the provisional views outlined at [1001]-[1072] in the
November 2022 decision; and
Whether the interim increases to modern award minimum wages applicable to direct
care aged care employees are necessary to achieve the minimum wages objective and
the provisional views outlined at [1073]-[1083] in the November 2022 decision.
[5] Stage 3 will consider submissions and evidence related to the classification definitions
and structures in the modern awards subject of the Applications and will consider submissions
and evidence in relation to whether wage adjustments are justified by work value reasons for
employees not dealt with in Stage 1.
[6] Stage 3 will also consider whether further wage adjustments are justified by work value
reasons for direct care workers granted interim increases in Stages 1 and 2.
Reconstitution of the Full Bench
[7] On 7 November 2022, Justice Ross, President wrote to the Governor General resigning
his Commission as President of the Fair Work Commission and as a judge of the Federal Court,
effective midnight 18 November 2022.
[8] Justice Ross was the presiding member of these proceedings and has now reconstituted
the Full Bench. The reconstituted Full Bench comprises Deputy President Asbury, Deputy
President O’Neill and Commissioner Bissett.
Further proceedings – Stage 2
[9] As indicated in the November 2022 decision, these matters are now listed for Mention
at 9:30am on Tuesday 22 November 2022 (AEDT).
[2022] FWCFB 208
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[10] The Mention will canvass further programming of these matters and whether the
interested parties have consulted in respect of increases in minimum wages for Head
Chefs/Cooks and Recreational Activities Officers/Lifestyle Officers.
[11] The Full Bench’s provisional view as to the programming of Stage 2 is set out below as
follows:
1. The Commonwealth to file submissions or evidence regarding the matters set out at
paragraph [4] [and if relevant paragraph [10]] above by noon Friday 16 December
2022 (AEDT).
2. The Applicant Unions, Joint employers and other interested parties to file submissions
and evidence regarding the matters set out at paragraph [4] [and if relevant paragraph
[10]] above by noon Friday 13 January 2023 (AEDT).
3. All parties to file any submissions and evidence in reply by noon Friday 3 February
2023 (AEDT).
4. The matters will be listed for Hearing (if required) in Melbourne at 10am Monday 9
February 2023 (AEDT).
[12] The parties will be asked to comment on the above timeline for Stage 2 at the Mention
on 22 November 2022.
Further proceedings – Stage 3
[13] We foreshadow that to assist with the undertaking of Stage 3, the Commission will
publish a Background Document regarding outstanding issues in mid to late December 2022.
[14] It is proposed that parties will be directed to have discussions to narrow the further issues
to be determined and to report back to the Full Bench by the end of February 2023.
Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022
[15] We note the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022
which is currently before the Australian Parliament. If the Bill is passed as currently drafted,
the provisions contained therein may affect these proceedings.
[16] It has been the longstanding practice of the Commission and its predecessors to
determine the matters before it on the basis of the existing legislative framework and not
otherwise.3 However, should legislative change come into force at a time which affects the
3 [2014] FWCFB 3500 at [299].
[2022] FWCFB 208
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timetable finalised after the Mention on 22 November 2022, parties will be at liberty to apply
to amend.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR748019
AL OF THE FAIR WORK COMMISSION THE
