1
Fair Work Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective
Gender undervaluation – priority awards review
(AM2024/19, AM2024/20, AM2024/22, AM2024/23)
JUSTICE HATCHER, PRESIDENT
VICE PRESIDENT ASBURY
DEPUTY PRESIDENT O’NEILL
DEPUTY PRESIDENT SLEVIN
DEPUTY PRESIDENT GRAYSON
MELBOURNE, 20 SEPTEMBER 2024
Gender undervaluation – priority awards review – Commission’s own motion – Pharmacy
Industry Award 2020 – Health Professionals and Support Services Award 2020 – Aboriginal
and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community
Controlled Health Services Award 2020 – Children’s Services Award 2010 – requests for
extensions of time to file evidence and submissions – scope of review regarding Medical
Technicians, Dental Technicians, Dental Therapists and Health Workers – request to split
proceedings.
[1] This statement concerns the following issues which have arisen in these proceedings:
(1) The Australian Council of Trade Unions and its affiliates (ACTU) have requested
an extension of time to file their evidence and submissions in matters AM2024/20,
AM2024/22 and AM 2024/23. The Private Hospitals1 also seek an extension of
time in matters AM2024/19 and AM2024/20.
(2) In respect of matter AM2024/20, a number of parties2 have requested clarification
of the scope of the proceedings as they concern ‘Medical Technicians’ under the
Health Professionals and Support Services Award 2020 (HPSS Award).
(3) In respect of matters AM2024/20 and AM2024/22, which include consideration
of Dental Assistants covered by the HPSS Award and Aboriginal and Torres Strait
Islander Health Workers and Practitioners and Aboriginal Community
Controlled Health Services Award 2020 (Aboriginal and Torres Strait Islander
Health Award) respectively, parties have requested clarification as to whether the
proceedings also encompass classifications applying to Dental Technician and
Dental Therapist classifications.
(4) In respect of matter AM2024/22, the ACTU requests clarification as to whether
the Health Worker classifications defined in clause A.2 of the Aboriginal and
Torres Strait Islander Health Award are within the scope of the proceeding.
[2024] FWCFB 382
STATEMENT
AUSTRALIA FairWork Commission
[2024] FWCFB 382
2
(5) In respect of all matters, the ACTU requests that consideration of issues (2)(b),
(2)(c) and (7) identified in our statement published on 24 June 20243 should be
deferred until after we have decided, or expressed a provisional view about,
whether the variation of any particular modern minimum wages is justified by
work value reasons. The ACTU also requests in relation to this that:
(i) further evidence concerning the deferred issues should be permitted after
the publication of our decision or provisional view; and
(ii) the Commission should consider requests for conduct and publication of
statistical analysis to ensure further expert evidence can operate on the basis
of some common assumptions.
Applications for extensions of time
[2] The current directions for all matters are set out in our statement published on 24 June
2024,4 as amended in respect of matter AM2024/19 in a further statement published on 16
August 2024.5 In each matter, parties are required to file their evidentiary material and
submissions by 27 September 2024 and their material in reply by 15 November 2024. The dates
reserved for hearing commence on 2 December 2024.
[3] The ACTU seeks extensions of the time for filing its evidence and submissions as
follows:
(a) In matter AM2024/23, the ACTU seeks an extension until 9 October 2024. The
reason for this is that it needs additional time to prepare and file expert evidence
concerning a skills analysis of work performed by employees who are covered by
the Children’s Services Award 2010 (CS Award).
(b) In matters AM2024/20 and AM2024/22, the ACTU seeks an extension until 18
October 2024 for the purpose of preparing and filing an expert report concerning
‘the regulatory, funding and financial operating framework of the health sector
covered by the HPSS Award, including the regulation of health professionals and
any significant changes in health service delivery and care models over the last
two decades’, and a further ‘review of the indicia of gender undervaluation in the
work covered by the HPSS Award and the [Aboriginal and Torres Strait Islander
Health] Award’.
[4] The Private Hospitals seek an extension of time to 18 October 2024 in matters
AM2024/19 and AM2024/20 in order to file an expert report concerning ‘the operating
environment of the private hospital sector with a focus on business viability’.
[5] Australian Business Industrial, the NSW Business Chamber, the Australian Childcare
Alliance and Community Care Providers Association (collectively, ABI), whose primary
interest is in the CS Award, oppose the grant of an extension to the ACTU in matter
AM2024/23. Their primary concern is that the grant of the extension sought would prejudicially
truncate the time for the filing of reply material.
[2024] FWCFB 382
3
[6] Because we consider that we would likely be aided in determining these matters by the
provision of the expert evidence foreshadowed by the ACTU and the Private Hospitals, we will
grant the extensions sought. As a matter of fairness, the extensions will apply to all parties
equally in matters AM2024/19, AM2024/20, AM2024/22 and AM2024/23. In order to avoid
the potential prejudice identified by ABI, the time for filing reply material in those four matters
shall be extended to 27 November 2024. This will at least ensure, with respect to the CS Award,
that the seven weeks originally allowed for the filing of reply material will be maintained. This
may have implications for the programming of the dates reserved for hearing, but this may
better be assessed once all the ‘first round’ evidence and submissions have been filed and the
scope of the material and the extent of the contested issues in each matter becomes apparent.
[7] Amended directions giving effect to the above are published with this statement.
Medical Technicians — HPSS Award
[8] In this year’s Annual Wage Review 2023–24 decision6 (AWR 2024 decision), the Expert
Panel determined that Medical Technicians covered by the HPSS Award were a priority
occupation to be considered in relation to whether minimum wage rates should be increased on
work value grounds in order to remedy potential gender undervaluation. That conclusion was
substantially based on the Stage 1 report7 of the pay equity research project undertaken by the
Commission. In the Stage 1 report, the occupation of Medical Technician considered had the
ANZSCO code 3112 and fell within the Pathology and Diagnostic Imaging Services industry
class with the ANZSIC code 8520.8
[9] In our 7 June 20249 and 24 June 202410 statements, we detailed the scope of the review
of the HPSS Award in matter AM 2024/20 including that it would consider classifications
applying to Medical Technicians, Dental Assistants and Psychologists, and classifications
applying to Health Professionals generally. The scope of the review of the HPSS Award does
not extend to the classification structure and indicative roles listed in Schedule A.1—Support
Services under the columns ‘General and Administrative Services’ or ‘Food Services.’
[10] During the proceedings parties have expressed uncertainty as to which of the indicative
roles listed in the classification definitions set out in Appendix A of the HPSS Award relate to
Medical Technicians for the purpose of this Review.
[11] Staff of the Commission have prepared a paper, which is published alongside this
statement, to assist in addressing this issue. The paper identifies the indicative roles in the HPSS
Award classification structure which map to the occupation of ‘Medical Technician’ as
discussed in the Stage 1 Report.
[12] On the basis of the conclusion in that paper, we determine that the following
classifications and indicative roles in Schedule A of the HPSS Award are included in the
priority occupation of ‘Medical Technician’:
A.1.3 Support Services employee—level 3
• Laboratory Assistant
[2024] FWCFB 382
4
• Theatre Technician
A.1.4 Support Services employee—level 4
• Orthotic Technician
• Pathology Collector
• Pathology Technician
• Theatre Technician (qualified)
A.1.5 Support Services employee—level 5
• Orthotic Technician
• Pathology Collector
• Pharmacy Technician
• Theatre Technician
A.1.6 Support Services employee—level 6
• Anaesthetic Technician
• Pathology Collector
• Pathology Technician
• Pharmacy Technician
A.2/Schedule B
• Cardiac Technologist
• Clinical Perfusionist
• Medical Laboratory Technician
• Medical Technician/Renal Dialysis Technician.
Dental Technicians and Dental Therapists — HPSS Award and Aboriginal and Torres Strait
Island Health Award
[13] In the AWR 2024 decision, the Expert Panel determined that Dental Assistants covered
by the HPSS Award and the Aboriginal and Torres Strait Islander Health Award were also a
priority occupation to be considered in in respect of potential gender undervaluation. Again,
that conclusion was substantially based on the Stage 1 report. The Stage 1 report identified the
occupation of Dental Assistant as bearing the ANZSCO code 4232 and falling within the Dental
Services industry class with the ANZSIC code 8531. The AWR 2024 decision also identified
that, in addition to the occupation of psychologist considered in the Stage 1 report (and covered
by the HPSS Award), there should be ‘an examination as to whether the professional
classifications in [the HPSS Award] generally (not just psychologists) should be aligned with
the C1 rate in accordance with the methodology adopted in the Teachers decision and the Stage
3 Aged Care decision’.11 Consequentially, our 7 June 2024 statement12 indicated that the
proceedings would encompass ‘health professionals generally’ under the HPSS Award and the
Aboriginal and Torres Strait Islander Health Award.
[2024] FWCFB 382
5
[14] In the context of the above, an issue has been raised as to whether the proceedings
encompass:
• the indicative role of ‘Dental Technician’ in the classification of Support Services
employee – level 4 in the HPSS Award;
• the indicative ‘Health Professional’ role of ‘Dental Therapist’ in Schedule B of
the HPSS Award;
• and the classifications of Dental Therapist Grade 1 and Dental Therapist Grade 2
in clauses A.4.6 and A.4.7 respectively of the Aboriginal and Torres Strait Islander
Health Award.
[15] The occupation of Dental Technician bears the ANZSCO code of 411213 and is separate
to that of Dental Assistant. This occupation was not considered in the Stage 1 report or the
AWR 2024 decision and is not within the scope of the proceedings.
[16] The occupation of Dental Therapist has the ANZSCO code 411214. It is also separate
to the occupation of Dental Assistant. However, the principal qualification to become a Dental
Therapist is the completion of a Bachelor of Oral Health degree. That means that classifications
for Dental Therapists in the HPSS Award and the Aboriginal and Torres Strait Islander Health
Award are ‘professional classifications’ in the sense discussed in the AWR 2024 decision,
namely those for which an undergraduate university degree or higher is a prerequisite.13 This
brings them within the scope of the proceedings as health professionals covered by the HPSS
Award and the Aboriginal and Torres Strait Islander Health Award.
Health Workers — Aboriginal and Torres Strait Islander Health Award
[17] In our 24 June 2024 statement, we said that the list of issues we had determined was
‘not intended to constrain any party from adducing evidence and making submissions about
any other matter relevant to the subject matters of the proceedings’. Arising from this
proposition, the ACTU requests clarification concerning whether this permits the Health
Worker classifications set out in clause A.2 of the Aboriginal and Torres Strait Islander Health
Award to be the subject of evidence and submissions in matter AM2024/22 because there is a
question about whether these classifications properly acknowledge and value Aboriginal and/or
Torres Strait Islander knowledge and cultural skills. The ACTU also submits that ‘[a] proper
and appropriate assessment of the work value of the exercise of gender-related Aboriginal and
Torres Strait Islander cultural skills in relation to dental assistants is likely inextricable, or at
least difficult to separate, from a broader assessment of the gender-related Aboriginal and
Torres Strait Islander cultural skills exercised across all classifications within the Award
generally’.
[18] The Health Worker classifications are not within the scope of matter AM2024/22,
having not been considered in either the Stage 1 Report or the AWR 2024 decision. They are
not professional classifications since they do not require a degree as a prerequisite. They
therefore do not constitute part of the subject matter of AM2024/22.
[19] It may be accepted that our determinations in respect of any of the classifications the
subject of the proceedings may have consequential effects, in terms of relativities and the like,
for other award classifications that are not the subject of the proceedings. We anticipate that
[2024] FWCFB 382
6
any such consequential effects may be raised in parties’ evidence and proceedings. However,
the proceedings will not result in the adjustment of any non-subject classifications. That does
not, of course, prevent any party with standing to do so making its own application for variation
of the classifications and minimum rates of Health Workers under the Aboriginal and Torres
Strait Islander Health Award.
Splitting the proceedings
[20] The issues which the ACTU wishes to have deferred until after the publication of an
initial decision or provisional view are:
• Would variations to the minimum wage rates prescribed for the classifications [the
subject of the proceedings:
. . .
(b) be necessary to achieve the modern awards objective in s 134(1) of the FW
Act?
(c) be necessary to achieve the minimum wages objective in s 284(1) of the FW
Act?
• To the extent that any increases to the minimum rates for any classifications are
justified by work value reasons in order to remedy gender undervaluation, what is
an appropriate implementation timetable for such increases having regard to
funding and related issues?
[21] In support of this proposal, the ACTU submits:
Given the nature of the proceeding as an own-motion proceeding, it may be premature for the
parties to address these issues comprehensively in evidence and submissions until the
Commission has reached a view (or expressed a preliminary view) about what (if any) variations
it considers are justified by work value reasons.
Such a view (or preliminary view) would also assist the parties to properly instruct an expert to
provide a report in the nature of the Fourth Report (eg, addressing the question of the impact on
employment, business, and the national economy (if any) of any proposed wage adjustment), or
for other interested parties to conduct a similar exercise.
[22] We consider that it would be premature to split the proceedings in the way proposed by
the ACTU, particularly given that the scope of the issues in dispute in each matter is not yet
apparent. If, for example, it is agreed or not in dispute in respect of any of the subject award
classifications that the minimum rate of pay has been subject to gender undervaluation such
that there are work value reasons justifying an adjustment, then the issues concerning the
modern awards objective, the minimum rates objective and the timing and phasing-in of any
pay increases may readily be addressed during and following the December hearings.
[23] The ACTU also submits that, in preparation of a contemplated expert report addressing
the questions of the impact of proposed pay increases on employment, business, and the national
economy, it would be assisted by ‘a combination of Census data and the microdata from the
[2024] FWCFB 382
7
2023 ABS Employee Earnings and Hours Survey… as recently utilised by the Commission in
its data profile relating to the Pharmacy Industry Award.’
[24] As has previously been indicated, the Commission is prepared to undertake research as
to particular matters relevant to the proceedings if there is a broad consensus amongst the parties
that we should do so. We invite the ACTU to explore with the other parties whether they can
reach a consensus that the Commission should undertake research concerning the matter it
identifies. A member of the Commission will be made available to assist with such discussions
if the parties consider that this would be of utility.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR779485
1 The Australian Private Hospitals Association, Catholic Health Australia, Day Hospitals Australia, Healthscope Operations
Pty Ltd and the Adelaide Community Healthcare Alliance Incorporated.
2 Including the Private Hospitals, by correspondence to the Commission dated 10 September 2024.
3 [2024] FWCFB 291.
4 Ibid.
5 [2024] FWCFB 345.
6 [2024] FWCFB 3500 [120].
7 Natasha Cortis et al, UNSW Social Policy Research Centre, Gender-based Occupational Segregation: A National Data
Profile (Final Report, 6 November 2023) (‘Stage 1 report’).
8 Ibid, Table 5.1.
9 [2024] FWCFB 280.
10 [2024] FWCFB 291.
11 [2024] FWCFB 3500 [120].
12 [2024] FWCFB 280.
13 The classification of ‘Health Professional – level 1’ at pay point 1 in clause 17.2 of the HPSS Award requires a ‘UG2
qualification’, defined in clause 2 as meaning ‘an employee with a diploma or equivalent’. Such employees are not
professional employees in the sense considered in the AWR 2024 decision.
THE FAIR WORK FAI COMMISSION THE
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb291.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb345.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb3500.pdf
https://www.fwc.gov.au/documents/sites/am2024-19/2024fwcfb280.pdf
https://www.fwc.gov.au/documents/sites/am2024-19/2024fwcfb291.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb3500.pdf
https://www.fwc.gov.au/documents/sites/am2024-19/2024fwcfb280.pdf
