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)
JUSTICE HATCHER, PRESIDENT
VICE PRESIDENT ASBURY
DEPUTY PRESIDENT O’NEILL
PROFESSOR BAIRD
DR RISSE
SYDNEY, 27 JUNE 2024
Applications to vary modern awards – work value – Aged Care Award 2010 – Nurses Award
2020 – Social, Community, Home Care and Disability Services Industry Award 2010 – Stage 3
decision – operative date and phasing-in of increases – submissions in response to draft
determinations – provisional view concerning assistants in nursing working in home care.
Introduction
[1] On 15 March 2024, we issued a decision in these matters1 (Stage 3 Aged Care decision)
in which, among other things, we determined the wage rates and classification structure for
direct care workers (consisting of personal care workers (PCWs) and assistants in nursing
(AINs)) and indirect care workers in residential aged care, and for home care workers (HCWs)
in aged care, which we considered to be justified on work value grounds. We reserved for future
consideration the operative dates and phasing-in arrangements in respect of the wage increases
which would flow from this. We also determined in the decision that award coverage of AINs
in residential aged care should be transferred from the Nurses Award 20202 (Nurses Award) to
the Aged Care Award 20103 (Aged Care Award). Together with the decision, we published
draft determinations varying the Aged Care Award, the Nurses Award and the Social,
Community, Home Care and Disability Services Industry Award 20104 (SCHADS Award)
which would (apart from the issues of operative date and phasing-in) give effect to the decision.
The parties were given the opportunity to file written submissions concerning the issues of
operative date and phasing-in and in response to the draft determinations. Those submissions
have now all been received, and it is agreed that the matters identified can be determined on the
[2024] FWCFB 298
DECISION
AUSTRALIA FairWork Commission
[2024] FWCFB 298
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papers without the need for a further hearing. This decision deals with the issues we have
identified.
Operative date/phasing-in
Submissions
[2] The Stage 3 Aged Care decision allowed the Commonwealth the first opportunity to file
submissions concerning operative date and phasing-in, and the other parties were then given an
opportunity to respond. The Commonwealth submitted that, as a result of a decision of the
Commonwealth Government, it was committed to provide funding for wage increases
(including on-costs) for aged care workers as follows:
(1) for indirect care workers — full increases from 1 January 2025; and
(2) for direct care workers and HCWs — 50 per cent of the increases from 1 January
2025 and 50 per cent from 1 January 2026.
[3] The Commonwealth contended that the question for the Commission was: given the
Commonwealth’s decision on the timing of its funding of the Stage 3 wage increases, what
timing and phasing-in of the Stage 3 wage increases is necessary or appropriate, including to
meet the modern awards objective and minimum wages objective? It submitted that an initial
funding date of 1 January 2025 would ensure that:
• the amount of funding necessary could be correctly calculated and applied based
on pricing advice from the Independent Health and Aged Care Pricing Authority;
• necessary subordinate legislation to effect the increases could be developed and
put in place;
• relevant information and communications technology changes required to
implement the increased funding could be developed and put in place;
• for funding through Home Care Packages, the Commonwealth Home Support
Programme and other small aged care and related programs, the necessary
program changes could be developed and contractual arrangements negotiated to
give effect to the increased funding; and
• taxpayers’ money would be used efficiently and value for money was achieved by
establishing accurate distribution and appropriate accountability mechanisms.
[4] In relation to its decision to fully implement the funding for direct care workers and
HCWs over 12 months, the Commonwealth submitted that it was prudent to adopt a phased
approach in circumstances where large wage increases might draw workers from other sectors
of the economy facing labour shortages and that its funding commitment had been made in the
context of its fiscal strategy of improving the budget position in a measured way.
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[5] In response to the Commonwealth’s submission, the Health Services Union (HSU), the
United Workers’ Union (UWU) and the Australian Nursing and Midwifery Federation (ANMF)
submitted that the wage rates determined in the Stage 3 Aged Care decision should take effect
from 30 June 2024 at the latest. The HSU submitted that:
• a commencement date of 30 June 2024 would essentially be consistent with the
presumption in s 166(1)(a) of the Fair Work Act 2009 (Cth) (FW Act) that a
determination varying modern award minimum wages takes effect from 1 July in
the next financial year after the determination is made;
• it would be appropriate for 30 June 2024 to be the operative date in order to avoid
confusion with the increases flowing from the annual wage review taking effect
on 1 July 2024 and to make clear that the annual wage review increases would be
applied to the increases arising from the Stage 3 Aged Care decision;
• any delay beyond 1 July 2024 would result in all aged care workers continuing to
receive rates significantly below the true value of the work they perform and will
have the effect of perpetuating the historic and gender-based undervaluation of
work in the aged care sector;
• the reasons advanced by the Commonwealth for the delay are unsupported by
evidence and are unpersuasive, and to treat the purported decision of the
Commonwealth with respect to funding as determinative would abdicate the
proper role of the Commission, elevate the factor in s 134(1)(f) beyond other
considerations and assume such a decision was immutable;
• the proposed delay is inconsistent with the interests of aged care workers, will
damage the financial interests of those workers and is likely to accentuate
difficulties in the attraction and retention of staff in aged care and the proper
recognition of the value of that work; and
• the wage increases arising from the Stage 3 Aged Care decision were not of such
a magnitude as to require phasing-in.
[6] Together with its submissions, the HSU filed a witness statement made by Christopher
Friend, the Divisional Secretary — Aged Care & Disability of the HSU. Mr Friend referred in
his witness statement to a survey conducted by the Department of Health and Aged Care which
showed that 95 per cent of aged care workers agreed with or were neutral towards the
proposition that wages were an essential consideration for working in aged care, 83 per cent of
aged providers either agreed with or were neutral towards the proposition that aged care workers
felt more valued due to the interim 15 per cent wage increase, that 76 per cent of providers
either agreed with or were neutral as to the improvement in workforce retention and that 65 per
cent of providers agreed or were neutral as to the proposition that the wage increase improved
workforce attraction to the sector. Mr Friend also stated that he had observed a significant
decline in bargaining in the aged care sector and expressed the opinion that bargaining would
remain depressed until the outcome of these proceedings was fully implemented.
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[7] The UWU and the ANMF made submissions of similar effect to those of the HSU. The
UWU’s submissions focused on the need to give weight to the consideration in s 134(1)(a) of
the FW Act, namely relative living standards and the needs of the low paid. It referred to a
recent survey it had conducted that demonstrated how the rising cost of living combined with
the relatively low wages in the aged care sector had had a detrimental effect on the living
standards of aged care workers, particularly for women with caring responsibilities who were
predominant amongst the UWU’s membership in the sector. The UWU filed a witness
statement of Catalina Gonzalez, the UWU’s Deputy Director of Aged Care, which annexed the
survey results referred to in the UWU’s submissions. The ANMF’s submissions stressed the
importance of rectifying gender undervaluation as soon as practicable having regard to the
length of time the aged care work value proceedings have been on foot. The ANMF also made
submissions about the operative date for pay increases for registered and enrolled nurses under
the Nurses Award arising from the Stage 3 Aged Care decision but, for the reasons explained
in paragraphs [207]–[208] and [281] of that decision, the finalisation of the position of
registered and enrolled nurses in aged care will be dealt with in a separate process and therefore
do not arise for consideration in this decision.
[8] The Aged & Community Care Providers Association Ltd and Australian Business
Industrial (Joint Employers) submitted that while the timing and phasing-in of the wage
increases arising from the Stage 3 Aged Care decision proposed by the Commonwealth was
‘disappointing and concerning’5 to aged care employers and employees, the role of the
Commonwealth as the principal funder of the aged care sector meant that the Joint Employers
were ‘commercially compelled’6 to support the Commonwealth’s position. The Joint
Employers submitted that the displacement of the standard date in s 166(1) of the FW Act was
appropriate because of four factors:
(1) The wage increases arising from the Stage 3 Aged Care decision apply to the
majority of aged care employees, with very few exceptions, are not uniform in
quantum, encompass indirect care workers, and impact on allowances because the
‘standard rate’ in the Aged Care Award will be increased.
(2) The evidence in the proceedings, and the findings in the Stage 1 Aged Care
decision,7 demonstrate that employers in the aged care sector do not have the
capacity to absorb the wage increases or recover their costs by increasing prices
or reducing labour. If the operative date is not aligned to the availability of
Commonwealth funding, aged care employers would be forced to consider
reducing placement offers for residents and clients, redundancies due to the
employers’ inability to operate, or total business closure due to their inability to
sustain the wage increases absent funding.
(3) There is insufficient time before 1 July 2024 for home care operators to procure
new home care agreements with clients incorporating the pricing necessary to pay
for wage increases. The process to obtain new agreements requires the
Commonwealth to communicate with home care operators as to the mechanism
by which funding is to be provided and with home care package recipients to
provide information about the increased funding for their packages to cover the
increased prices. This process is complicated by the non-uniform nature of the
increases, the transitioning process to the new classification structure, the need to
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implement the annual wage review decision increase and the need for operators to
undertake planning and financial analysis prior to the operative date.
(4) There is also insufficient time for residential aged care providers to ensure all
essential preparatory steps are undertaken and necessary communications
received prior to 1 July 2024. The actions described in the Commonwealth’s
submission as necessary to implement additional funding would take time and, in
addition, providers would have to complete all necessary pricing and financial
analysis and engage in appropriate communications with employees having regard
to the non-uniform amounts of the increases and the distinction in pay rates
between direct care workers and indirect care workers.
[9] The Joint Employers therefore submitted that the phasing-in timetable proposed by the
Commonwealth provided an appropriate solution to these difficulties.
Consideration
[10] The framework for the consideration of the operative date for modern award wage
increases occurring outside of the annual wage review process is provided by s 166 of the FW
Act, which relevantly provides:
166 When variation determinations setting, varying or revoking modern award
minimum wages come into operation
Determinations generally come into operation on 1 July
(1) A determination under this Part that sets, varies or revokes modern award minimum
wages comes into operation:
(a) on 1 July in the next financial year after it is made; or
(b) if it is made on 1 July in a financial year—on that day. Note: Modern award
minimum wages can also be set, varied or revoked by determinations made in
annual wage reviews. For when those determinations come into operation, see
section 286.
. . .
FWC may specify another day of operation if appropriate
(2) However, if the FWC specifies another day in the determination as the day on which it
comes into operation, the determination comes into operation on that other day. The FWC
must not specify another day unless it is satisfied that it is appropriate to do so.
(3) The specified day must not be earlier than the day on which the determination is made,
unless:
(a) the determination is made under section 160 (which deals with variation to remove
ambiguities or correct errors); and
(b) the FWC is satisfied that there are exceptional circumstances that justify specifying
an earlier day.
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Determinations may take effect in stages
(4) The FWC may specify in the determination that changes to modern award minimum
wages made by the determination take effect in stages if the FWC is satisfied that it is
appropriate to do so
. . .
[11] For any determination varying modern award wages, s 166(1) establishes a default date
of effect of 1 July in the financial year following the date of the making of the determination,
unless the determination is made on 1 July in a financial year in which case that date is the
default date. The submissions before us proceed on the assumption that, by operation of
s 166(1), the default date for the purpose of the wage increases arising from the Stage 3 Aged
Care decision is 1 July 2024. However, it is important to note that s 166(1) operates by
reference to the date of the variation determination. For reasons which will become apparent
later in this decision, it will not be possible for the determinations varying the wage rates in the
Aged Care Award and the SCHADS Award to be varied prior to, or on, 1 July 2024.
Accordingly, the actual default date for those determinations will be 1 July 2025. Under
s 166(2), the default date may be displaced by another date if the Commission is satisfied that
it is appropriate to do so but, in this matter, it cannot be a date that is earlier than the date of the
determinations (s 166(3)). This means that the 30 June 2024 operative date sought by the unions
is not permissible on the basis that the variation determinations cannot be made on or before
that date. We will therefore consider the unions’ submissions on the basis that they would seek
the earliest date of effect permissible under s 166.
[12] The Commonwealth’s submissions, and the submissions made in response, raise three
related issues. The first concerns whether the wage increases for direct care workers and HCWs
should flow in a single tranche, or should be phased in over two stages, as proposed by the
Commonwealth. The second concerns whether the operative date for the wage increases
(whether for a single tranche or the first of two tranches) should be earlier than the date of 1
January 2025 proposed by the Commonwealth. The third only arises if we decide to phase in
the wage increases for direct care workers and HCWs over two stages and concerns the
operative date of the second stage.
[13] It was fundamental to the outcome determined in the Stage 3 Aged Care decision that,
subject to the issues of operative date and phasing-in, the Commonwealth had made a
commitment to funding the pay increases that might arise from the decision. This is most readily
seen in our consideration of the modern awards and minimum wages objectives in paragraphs
[211]–[212] and [277]–[278] of that decision. In particular, it was substantially this
commitment which caused us to conclude that the factors of security of employment
(s 134(1)(aa)), the impact upon employment costs (s 134(1)(f)) and the effect on the national
economy (ss 134(1)(h) and 284(1)(a)) were either neutral considerations or did not weigh
significantly against the wage rates we proposed to award. We did not contemplate in the
decision that we would be requiring aged care employers to themselves fund the cost of the
wage increases to be awarded.
[14] As earlier recounted, the Commonwealth has submitted that it has made a decision about
the dates from which the wage increases proposed to be awarded in the Stage 3 Aged Care
decision will be funded. At least with respect to the 2024–25 financial year, this must be
assigned significant weight in our determination of the first two issues we have identified above.
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The 2024–25 Federal Budget delivered on 14 May 2024 has presumably allocated funding for
the aged care sector based on this decision (although that is not clearly discernible on the face
of the budget papers). Although the Commonwealth’s funding decision is theoretically
alterable, we are not prepared in determining the operative date issue to proceed on the
assumption that the Commonwealth will alter funding arrangements announced in the 2024–25
Federal Budget having regard to the likely consequences for employers if no further funding is
provided in response to any decision we make.
[15] We further accept the submissions of the Commonwealth, supported and elaborated
upon by the Joint Employers, that significant practical difficulties would attend an operative
date that is much before the 1 January 2025 date proposed by the Commonwealth. Those
submissions found no satisfactory response in the submissions made by the unions.
[16] We note the unions’ submissions, expressed in varying ways, that delay in the delivery
of the wage increases arising from the Stage 3 Aged Care decision would disadvantage
employees because they are under pressure from increases in the cost of living and postpone
the rectification of the gender undervaluation found in the Stage 3 Aged Care decision. While
employees would obviously prefer to have the benefit of the wage increases at the earliest
available date, the weight to be given to this is diminished by two matters. First, the wage
increases awarded in the Annual Wage Review decision 2022–238 and the Annual Wage Review
decision 2023–249 will ensure that the real value of the wages of award-reliant aged care
workers will have been maintained over the period since the interim 15 per cent increase took
effect on 30 June 2023. Second, for direct care workers and HCWs, that interim increase
represents for most classifications at least two-thirds of the total wage increases to flow as a
result of these work value proceedings. Thus, the gender undervaluation of work found in the
Stage 3 Aged Care decision has already been remedied to a substantial degree.
[17] Accordingly, we consider it appropriate that:
(1) the wage increases for direct acre workers and HCWs awarded in the Stage 3 Aged
Care decision should, as proposed by the Commonwealth, flow in two tranches;
and
(2) the operative date for the first tranche of increases for direct care workers and
HCWs, and the full increases for indirect care workers, should be 1 January 2025.
[18] The Commonwealth proposed that 50 per cent of the wage increases for direct care
workers and HCWs should be payable in the first tranche. We intend to modify this aspect of
the Commonwealth’s proposal to take into account that, for some direct care worker and HCW
classifications, the additional increases awarded in the Stage 3 Aged Care decision were small
or, in two cases, zero. We consider that where half of the entire increase is less than 3 per cent,
a 3 per cent minimum increase (or the entire increase where it is less than 3 per cent) should
take effect on 1 January 2025 (unless there is no increase payable at all). That is, the first tranche
of increases for direct care workers and HCWs will consist of three categories:
• if half of the total increase is more than 3 per cent, half of the total increase should
take effect on 1 January 2025;
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• if the total increase is more 3 per cent, but half of the total increase is less than 3
per cent, a 3 per cent increase should take effect on 1 January 2025; and
• if the total increase is less than 3 per cent, the total increase should take effect on
1 January 2025.
[19] In respect of the second tranche of increases for direct care workers and HCWs, on the
basis that this will occur in the 2025–26 financial year, we give less weight to the
Commonwealth’s decision concerning the timing of funding. The Commonwealth will be in a
position to make a further decision about funding the second tranche of increases having regard
to this decision when it prepares the 2025–26 Federal Budget. We consider that an appropriate
date for the second tranche is 1 October 2025.
[20] Accordingly, on the basis detailed above, we consider that the operative dates of 1
January 2025 and 1 October 2025 are appropriate to displace the default date of 1 July 2025
under s 166.
Aged Care Award - draft determination
[21] The HSU, the ANMF and the Joint Employers made submissions concerning various
aspects of the draft determination for the Aged Care Award. We deal with the more substantive
matters raised by the parties below. Some of the matters raised by the parties concerned only
minor drafting changes, most of which we propose to adopt, and do not require further
consideration in this decision.
HSU — Definition of ‘aged care employee — direct care’
[22] The draft determination for the Aged Care Award contains a definition of ‘aged care
employee — direct care’ in order to aid the identification of those employees entitled to the
rates for direct care workers as distinct from indirect care employees. The definition includes,
in paragraph (b), employees whose primary responsibility is to directly provide
‘recreational/lifestyle services to residents’, which are then delineated. The HSU proposes that
the drafting of the definition be altered so that (1) the duties required are those ‘of the following
kind’, (2) the duties are listed disjunctively, and (3) it is clarified that such employees will assist
with clinical care and the provision of medical treatments and procedure ‘where qualified to do
so’. These amendments are consistent with our intention and will, subject to minor drafting
adjustments, be made.
HSU — Classification descriptors — industry experience
[23] The Level 1 and Level 2 classification descriptors for direct care workers refer to 3
months’ ‘industry experience’. The HSU proposes drafting changes to make it clear that aged
care experience both in residential and home care settings should count for this purpose. We
accept the substance of this submission, but we will use a different drafting method to achieve
this outcome.
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HSU — Classifications descriptors — qualifications
[24] The HSU proposes that the descriptors for those direct care worker classifications which
contain a qualification requirement be amended to add the words ‘or possesses equivalent
knowledge and skills’. The effect of this change would be, in substance, to vitiate the
qualification requirement by allowing an equivalency assessment by some indeterminable
means.
[25] We reject this proposal. Our intention was to create a clear and contemporary
classification structure under which progression is, to a substantial degree, based on the
acquisition of qualifications in accordance with the operational requirements of the employer.
For each such classification descriptor, the draft determination specifies a qualification but
allows for an equivalent qualification. The Australian Qualifications Framework allows for
recognition of prior learning in the acquisition of qualifications, but it remains the case that the
qualification is still required. The HSU’s proposal would confuse the design of the classification
structure by allowing progression without the requisite qualifications. This is liable to cause
doubt and disputation since there is no identified means by which ‘equivalent knowledge and
skills’ can objectively be determined.
[26] The HSU’s proposal appears to be intended to address a concern that existing employees
may potentially be downgraded from their current classification if they are experienced but do
not have a strict equivalent to the formal classification requirement in the new structure.
However, the translation arrangements specified in the draft determination (new Schedule I)
make it clear to which classification an existing employee will translate, irrespective of
qualifications. For example, an existing PCW currently classified at Level 4 will translate to
the new Level 3 even if they do not hold a Certificate III, and will get the full benefit of the
wage increase associated with this translation. However, the employee will not be able to
progress to the next classification level under the new structure unless they hold the
qualification required for that level. In the case of the example given, the Level 4 definition in
the draft determination (clause B.2.4) currently provides:
B.2.4 Aged care employee—direct care—level 4—Senior
An employee whose primary role is to provide direct care to residents and who has obtained a
Certificate III in Individual Support or equivalent and has obtained 4 years’ post-qualification
industry experience as a direct care employee after XX MONTH 2024 [day the changes take
effect].
(underlining added)
[27] A note under clause I.1 explains that the requirement for ‘4 years’ post-qualification
industry experience’ refers only to industry experience acquired after the date the changes take
effect. However, in the case an existing Level 4 employee who translates to the new Level 3
without holding a Certificate III, the use of the phrase ‘post-qualification’ industry experience
infers that the employee must first obtain a Certificate III and then work in the industry for a
further 4 years. This is not our intention. Instead, we envisage that such an employee could
progress to Level 4 if they work in the industry for a further 4 years at the new Level 3 and
during that period obtain the Certificate III qualification. The determination will be amended
to make this clear.
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HSU — Level 4 classification descriptor
[28] As stated above, progression from the new Level 3 for direct care workers to the new
Level 4 requires a further 4 years’ industry experience. The HSU proposes that this be reduced
to 3 years, with previous experience being counted for this purpose. This is rejected. It would
involve substantive changes to a fundamental aspect of the new structure which was arrived at
after careful deliberation and was designed to support employee retention.
HSU — Level 5 classification descriptor
[29] The HSU proposes that the Level 5 classification descriptor for direct care workers be
altered so as to include as a separate qualifying criterion that the employee ‘performs the
majority of their work in a specialised unit such as a dementia ward or palliative care, or delivers
a specialised model of care’. This is rejected. We intended, after careful deliberation, to
introduce a qualification-based classification structure, with the progression to Level 5
requiring a Certificate IV or equivalent. The practical effect of the HSU proposal would be to
escalate the cost of the changes arising from the Stage 3 Aged Care decision significantly
beyond the level we intended.
HSU — Most senior food services employee
[30] Clause 14.2 currently provides for separate rates of pay for the ‘single most senior food
services employee engaged by any employer at the facility or site’. Such employees were
separated out and given the benefit of the 15 per cent increase operative from 30 June 2023 as
a result of the Stage 2 Aged Care decision.10 Such employees will not receive any further
increases as a result of the Stage 3 Aged Care decision and are accordingly not referred to in
the draft determination. The HSU proposes that an amendment to clause 14.2 should be added
to the determination which would apply the prescribed rates to a wider class of employees,
namely those ‘in the most senior classification rostered to work on a particular shift’.
[31] This proposal is rejected. The current clause 14.2 uses terminology directly derived from
the Stage 2 Aged Care decision and thus accurately reflects the Full Bench’s intention in that
decision. No case was advanced by the HSU in Stage 3 of the proceedings that the 15 per cent
increase should be awarded to a wider class of employees on work value grounds or that the
terms of clause 14.2 had caused any practical difficulty.
ANMF and HSU — classification descriptors for Level 5 and Level 6
[32] The ANMF and the HSU propose the removal of the condition that the qualifications
referred to in the classification descriptors for new Levels 5 and 6 must be ‘a requirement for
the performance of their duties’. This is rejected. There is no proper basis to require an employer
to pay a higher level of minimum wages to an employee who has independently acquired an
additional qualification which is not required by the employer for the performance of their
duties.
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ANMF — definition of ‘standard rate’
[33] Clause 3 of the Aged Care Award currently defines the ‘standard rate’ as ‘the minimum
wage for an Aged care employee—general—level 6 in clause 14.1’. Allowances for leading
hands (clause 15.3), nauseous work (clause 15.5) and sleepovers (clause 22.9(d)) are calculated
as a specified percentage of the standard rate. The ANMF proposes that the definition of
‘standard rate’ be modified so that, for direct care workers, the standard rate would be the
minimum wage at Level 5 for direct care workers.
[34] This is rejected. Its effect would be to give direct care workers higher allowances than
indirect care workers for the same duties or disabilities. For example, a direct care worker
would receive a higher allowance for ‘nauseous work’ than an indirect care worker despite the
same level of disability apparently being involved. No work value or other rational basis for
this has been demonstrated.
ANMF — translation arrangements
[35] In respect of the translation arrangements (Schedule I), the ANMF proposes the addition
of the following provision:
For the avoidance of doubt, if an employee described in clause I.2(a) falls within a description
in clauses B.2.4–B.2.6 (Aged care employee—direct care—level 4—Senior through to Aged
care employee—direct care—level 6—Team Leader), the employee is classified in accordance
with whichever of clauses B.2.4–B.2.6 is applicable, rather than in accordance with the table in
clause I.2(a).
[36] This is rejected. The table in clause I.2 is intended to govern the translation process, and
the ANMF amendment would circumvent it. It has not been demonstrated that the translation
table would operate unfairly in any particular instance.
Joint Employers — Level 4 classification descriptor
[37] As explained above, progression to Level 4 requires 4 years’ further industry
experience. The Joint Employers propose that this requirement be modified for casual and part-
time employees to take into account that they are working less than full-time hours. They
propose that, for such employees, the qualification should be expressed as 7,296 hours’ work
as a direct care employee.
[38] This is rejected, for three reasons. First, it adds unnecessary complexity. We envisage
particular difficulty as to how the Joint Employers’ proposal would work in practical terms if
an employee changes employers in the period after being classified at the new Level 3. Second,
we intended, as earlier explained, that the requirement for 4 years’ additional industry
experience would support retention of employees. By this, we generally contemplated
employees staying a further 4 calendar years in their current role, irrespective of the number of
hours worked per week. The Joint Employers’ proposal would, in practical terms, extend the
period by a number of calendar years and might thereby diminish or vitiate the intended
retention benefit. Third, the Joint Employers’ proposal is inconsistent with a classification
structure based on qualifications and skills required to be exercised by employees, and with
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providing employees with an incentive to obtain the Certificate III qualification to progress to
Level 4.
Joint Employers — supervisory responsibilities
[39] The Joint Employers propose that the descriptors for the new Level 4 and Level 5 be
amended to include: ‘The employee may assist with the supervision of others’. This is rejected
for two reasons. First, the new classification structure is not intended to prescribe or list the
duties of any particular position beyond describing its primary purpose and, where relevant, the
qualification required. Beyond that, it is a matter for the employer to allocate duties which fall
within the employee’s level of skill and competence and are within the scope of their contract
of employment. Second, on the premise that ‘aged care employee – direct care’ is defined
(except for those providing recreational/lifestyle activity services) as directly providing
‘personal care services to residents under the supervision of a registered or enrolled nurse’
(underlining added), it is not clear to us what are the implications of Level 4 and 5 employees
‘assist[ing] with the supervision’ of other employees, especially when it comes to clinical care
and the provision of medical treatments and procedures.
SCHADS Award – draft determination
[40] A number of matters raised in respect of the new classification structure for home care
workers in aged care under the SCHADS Award are equivalent to those raised in respect of the
Aged Care Award and dealt with above, since the new classifications structures largely parallel
each other (see paragraph [199] of the Stage 3 Aged Care decision). It is not necessary to detail
these; the same or equivalent outcomes will apply.
HSU — classifications descriptors
[41] The classification descriptors in the new classification description describe the role of
employees at each level as being to ‘provide direct care to aged care clients’. The HSU proposes
that it should be described as ‘home care’ rather than ‘direct care’. We agree and this
terminology will be adopted.
HSU — translation table
[42] The HSU proposes an addition to the translation table (new Schedule G) whereby
employees who are ‘in a role requiring the employee to roster employees, undertake
administration or planning and/or oversee service provision’ will translate to the new Level 5,
and employees ‘whose role requires the employee to be responsible for resource and/or care co-
ordination’ will translate to Level 6. The necessity for or import of this proposal is unclear. The
translation table identifies where each employee in each existing classification will fit within
the new structure. Existing Level 4 employees without a Certificate IV will translate to new
Level 4, existing Level 4 employees who hold a Certificate IV will translate to new Level 5,
and all existing Level 5 employees will translate to new Level 6. The first aspect of the proposal
would appear to pull out employees from the translation arrangement which would otherwise
apply and place them in Level 5 if they perform duties of a certain type, regardless of the
significance of those duties for the overall role and without them satisfying the qualification
requirement. Such employees have the opportunity to advance to new Level 5 if they obtain a
[2024] FWCFB 298
13
Certificate IV, presuming that it is required for the performance of their duties. The practical
effect of the HSU proposal will be the provision of wage increases beyond those which we
contemplated in the Stage 3 Aged Care decision. The proposal is rejected.
Nurses Award — draft determination
[43] The draft determination for the Nurses Award only concerns the exclusion from the
award’s coverage of nursing assistants (otherwise referred to as AINs) working in the ‘aged
care industry’ and the deletion of their classifications and rates of pay. This is intended to give
effect to paragraphs [190]–[191] of the Stage 3 Aged Care decision. The ANMF proposes
variations intended to make it clear that that AINs working in home care remain within the
coverage of the Nurses Award and to restore their rates of pay. The ANMF submits that AINs
working in home care remain covered by the Nurses Award and, because the classifications and
rates of pay for all AINs in aged care have been entirely deleted, the effect of the draft
determination (unless altered as proposed) would be that they would lose the interim 15 per
cent increase and the final increases resulting from the Stage 3 Aged Care decision.
[44] It may be accepted that paragraphs [190]–[191] of the Stage 3 Aged Care decision only
refer to the transfer of coverage of AINs in residential aged care from the Nurses Award to the
Aged Care Award. That is because we did not contemplate that there were AINs working in
home care. We cannot identify any evidence having been adduced in the proceedings that
concerned or referred to AINs working in home care. Our provisional view is that if such
employees exist (as the ANMF appears to assert), they should be covered by the SCHADS
Award, and the exclusion from coverage in the Nurses Award should make clear that it applies
to aged care AINs in both residential and home care. The logic of the approach in paragraphs
[190]–[191] of the Stage 3 Aged Care decision supports this provisional view.
[45] On one view, the consequence of the adoption of this provisional view would be that a
translation table for AINs should be included in the determination for the SCHADS Award in
equivalent terms to that in the determination for the Aged Care Award (see clause I.2), and also
that there needs to be a grandparenting provision protecting AINs’ entitlement to an additional
week’s annual leave in the same terms as that in the Aged Care Award determination (cl 28.3).
An alternative view is that these steps are not necessary because the issue of AINs performing
home care work is only hypothetical or of negligible practical significance. We will invite
parties to make submissions concerning our provisional view, and the potential consequences
of this provisional view. Because the resolution of this issue affects two of the three draft
determinations, it is necessary to defer issuing final determinations until after this issue is
resolved.
Next step
[46] Any submissions concerning the provisional view expressed in paragraph [44] above,
and the potential consequences of the adoption of this view identified in paragraph [45], shall
be filed by 5:00 pm (AEST) on Friday, 12 July 2024.
[2024] FWCFB 298
14
PRESIDENT
Final written submissions:
Commonwealth of Australia: 12 April 2024.
Fair Work Ombudsman: 24 April 2024.
Australian Nursing and Midwifery Federation: 10 May 2024.
Health Services Union: 10 May 2024.
United Workers' Union: 10 May 2024.
Aged & Community Care Providers Association Limited and Australian Business Industrial:
10 May 2024.
Isaac Fullerton: 17 April 2024.
Printed by authority of the Commonwealth Government Printer
PR776509
1 [2024] FWCFB 150.
2 MA000034.
3 MA000018.
4 MA000100.
5 Aged & Community Providers Association Ltd and Australian Business Industrial submissions, 10 May 2024 at [5] and
[95].
6 Ibid.
7 [2022] FWCFB 200 at [904].
8 [2023] FWCFB 3500.
9 [2024] FWCFB 3500.
10 [2023] FWCFB 40 at [16]; [2023] FWCFB 93 at [72]–[74].
THE FAIR WORK FAI COMMISSION THE
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb150.pdf
https://www.fwc.gov.au/documents/sites/work-value-aged-care/am202099-63-65-sub-reply-abi-anor-100524.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb200.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb3500.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb3500.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb40.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb93.pdf
