[2019] FWCFB 2987

FAIR WORK COMMISSION

STATEMENT

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

4 yearly review of modern awards—Group 4—Social, Community, Home Care and Disability Services Industry Award 2010
(AM2018/26)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE

MELBOURNE, 2 MAY 2019

4 yearly review of modern awards – award stage – group 4 awards – substantive issues – Social, Community, Home Care and Disability Services Industry Award 2010 – draft survey.

[1] This Statement deals with the substantive claims to vary the Social, Community, Home Care and Disability Services Industry Award 2010 (the SCHADS Award).

[2] At the Full Bench hearing on 17 April 2019, a document was circulated titled ‘draft survey.’ 1. The ‘draft survey’ was prepared to assist the Full Bench in informing the Commission and the parties about information relating to the matters before us.

[3] A copy of the draft survey was published to the Commission’s website and a Statement 2 was issued on 23 April 2019 providing interested parties an opportunity to file a written submission regarding its contents. Submissions were received from the following parties:

• Jobs Australia

• Australian Federation of Employers and Industry (AFEI)

• Australian Business Industrial and the NSW Business Chamber (ABI)

• National Disability Services (NDS)

• Health Services Union of Australia (HSU)

• Australian Municipal, Administrative, Clerical and Services Union (ASU)

General submissions

[4] Jobs Australia and ABI submit that they are generally supportive of the Commission’s proposal to distribute the survey. 3

[5] ABI note that the disability sector and home care sectors are currently undergoing significant structural change which require considerable attention and resources (for example the Royal Commission into Aged Care) which may impact the response rate of any survey. 4 ABI request that the survey be created and administered by the Commission electronically via a link, for ease of distribution. ABI also submit that a standardised communication be developed by the Commission to be sent to members,5 along with the survey link.

[6] Similarly, the NDS submit it would be preferable to send the survey by electronic means. 6

[7] The Commission will administer the survey electronically, and will develop standardised communication to be distributed by employer parties if they wish.

[8] AFEI propose a timeframe of at least four weeks as a final return date for responses to the survey as a number of factors that could affect the capacity of employers to submit a response, including:

• Having multiple payroll systems across multiple sites or regions;

• Different human resources/payroll staff responsible for different regions;

• Having single payroll systems with employees covered by different modern awards;

• Having enterprise agreements (and linked payroll systems) which apply to employees covered by different awards. 7

[9] In our view, a 4 week timeframe is appropriate.

List of sectors

[10] The ASU’s submission relates to the list of sectors appearing at page 1 and page 2 of the draft survey. This list of sectors was derived from the ASU submission dated 18 February 2019. The ASU submit that the list describes the social and community sector of the SCHADS Award, however the list does not cover the family day care sector or home care sector. 8 ABI also submit that home care or family day care sectors are not included on the list and AFEI submit that the list should be replaced with a list of all sectors covered by the Award.9

[11] The NDS submit that an option could be added to the end of the list for the survey respondent to identify a further sub-sector as follows 10:

‘Other (please specify) _______________________’

[12] The list on page 1 and 2 of the draft survey will be updated to include home care and family day care sectors. The option suggested by the NDS will be added to the bottom of the list.

Representation of employers in the sector

[13] The ASU submit that it is concerned the results of the survey will not be representative of the coverage of the SCHADS Award, due to the concentration of employer association membership in the aged care and disability service sectors. It submits there does not appear to be any employer parties who represent social and community sector employers who are not disability services. The ASU request that the survey be forwarded to approximately 50 of their members who are employed as CEOs and services managers in the ASU NSW & ACT (Services) Branch. It submits their members in this division include CEOs and service managers of non-disability services, such as youth and migrant services. 11

[14] Jobs Australia noted the concern raised by the ASU and estimates that its membership includes over 1000 employers across Australia covered by the SCHADS Award, of whom approximately a quarter are in the disability sector and the remainder spread across all types of other social and community services sub-sectors. 12

[15] We agree to the ASU’s request. Jobs Australia members will also be surveyed.

[16] The NDS submit that in order to avoid the survey being completed by employers who are not covered by the award (or currently have an enterprise agreement), a preliminary question could be posed as follows:

‘Do you have any employees covered by the SCHADS Award?

Yes… please proceed to Q2

Yes, although an enterprise agreement currently applies… please proceed to Q2

No… do not proceed to any further questions, please simply return this survey as per the instructions.’ 13

[17] Rather than a question set out in the terms sought by the NDS, the introductory text to the survey will make it clear that the survey should only be completed by employers who are currently covered by the award (and excludes employers who currently have an enterprise agreement in place).

[18] AFEI note that there is a strong likelihood of employers being members of more than one employer organisation distributing the survey. To avoid the likelihood of employers answering the survey twice, and their answers being double-counted, AFEI suggest the inclusion of a preliminary question as follows:

‘have you already submitted a completed copy of this survey to another employer organisation’ 14

[19] AFEI suggest that where an employer marks ‘yes’ in response to this question they should be instructed not to answer any additional questions.

[20] To address the concern raised by AFEI the introductory text at the beginning of the survey will state that respondents should only provide one response, even if they have received multiple copies of the survey from different employer organisations.

Questions contained in the survey

[21] In relation to question 4, AFEI submit that the survey should exclude reference to ‘contract employees’ as it does not assist the Commission due to the following:

a. The term is ambiguous (or potentially ambiguous), as all employees technically have an employment contract and could be described as ‘contract employees’;

b. No definition is provided in the Aged Care Workforce 2016 Report of ‘contract employee’ including whether this is intended to refer to labour hire workers (who are not direct employees), or fixed-term employees;

c. To the extent it is intending to refer to those who are not employees, the question is inconsistent with question 2 – which requires the survey participant to identify how many ‘employees’ it has; and

d. To the extent it is intending to refer to those who are employees of a labour hire organisation, the appropriate survey participant would be the labour hire organisation as opposed to the host. 15

[22] The NDS submit that question 4 should be amended to refer to ‘permanent full time’ and ‘permanent part time’ employees rather than simply ‘full time or part time’. The NDS further submit that rather than referring to ‘contract employees’ the terms ‘fixed term contract full time employees’ and ‘fixed term contract part time employees’ should be used. 16

[23] We agree that the term ‘contract employees’ may be ambiguous. The terms referred to by the NDS will be used in the survey.

[24] The NDS submit that question 5 refers to a four week period of 4 to 29 March, however ‘this falls short of 28 days and could be amended to 4 to 31 March 2019 in order to reflect four full weeks.’ 17 We agree and the four week period will be amended to read 4 to 31 March 2019.

[25] AFEI submit that participants could have questions about the meaning of certain phrases in the survey including ‘significant proportion’ in question 6 and ‘full time’ in question 4 (as it submits some employers may allow their full time employees to work less than 38 hours per week without loss of pay). AFEI suggest there should be a Fair Work Commission contact person nominated to receive and address any interpretation questions relating to the survey. 18 A contact point within the Commission will be identified to answer any questions relating to the survey.

[26] In relation to question 7, ABI submit that employers should be able to select more than one option when responding about the source of their income. The HSU make a similar submission noting that there are many providers who qualify and receive funds from multiple government sources. 19 The HSU therefore suggests it would be prudent to include a note to tick all relevant sources of funding.20 Alternatively, ABI submit that question 7 could be reframed to ask the employer what the ‘main’ source of their income is. We agree with ABI and the HSU. Question 7 will be amended so that employers can select more than one option.

[27] ABI also submit that an additional question regarding the primary location of the business would be beneficial, i.e. whether it is located in a metropolitan, regional or rural area. ABI submit this would assist in providing greater context to the responses. 21 We agree. A question of this nature will be added to the survey.

Revised draft survey

[28] AFEI requests the opportunity to respond to any comments provided by other parties, prior to the finalisation of the survey. 22

[29] A revised survey will be published concurrently with this Statement. Interested parties will have one further opportunity to comment on the contents of the survey, and to respond to any submissions made by any other interested parties. Comments should be forwarded to [email protected] by no later than 4.00 pm on Monday 6 May 2019.

Next Steps

[30] A Conference will be held at 4:30pm on Wednesday 8 May 2019 in Sydney to discuss the practical issues associated with the administration of the survey.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

PR707878

1 Transcript, 17 April 2019 at PN 1736 - 1740

2 [2019] FWC 2755

3 ABI submission – draft survey, 24 April 2019 at para 3; Jobs Australia submission – draft survey, 24 April 2019

4 ABI submission – draft survey, 24 April 2019 at para 5

5 ABI submission – draft survey, 24 April 2019 at paras 6-7

6 NDS submission – draft survey, 24 April 2019 at para 2

7 AFEI submission – draft survey, 24 April 2019 at paras 9-10

8 ASU submission – draft survey, 24 April 2019

9 AFEI submission – draft survey, 24 April 2019 at paras 1-3