[2020] FWCFB 6535

FAIR WORK COMMISSION

DECISION

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

4 yearly review of modern award—Aboriginal Community Controlled Health Services Award 2010
(AM2018/12)

Indigenous organisations and services
DEPUTY PRESIDENT GOSTENCNIK DEPUTY PRESIDENT MASSON COMMISSIONER BISSETT	MELBOURNE, 8 DECEMBER 2020

4 yearly review of modern awards – Aboriginal Community Controlled Health Services Award 2010 – finalisation of substantive claims.

Introduction

[1] On 1 October 2018 Justice Ross issued a Statement 1 constituting this Full Bench to consider various substantive claims made by the National Aboriginal and Torres Strait Islander Health Worker Association (NATSIHWA) and the Health Services Union (HSU) for variations to the Aboriginal Community Controlled Health Services Award 2010 (Award). The claims are being dealt with as part of the 4 yearly review of modern awards (the Review).

[2] On 9 April 2020 the Full Bench of the Commission dealing with the finalisation of the Review issued a determination finalising the technical and drafting matters for the Award and re-naming the Award to the Aboriginal Community Controlled Health Services Award 2020 (2020 Award).

[3] This decision deals with the finalisation of the substantive issues in relation to the 2020 Award.

Procedural Background

[4] This matter was listed for hearing before us on 25 and 26 July 2019, following the filing of submissions and witness statements by NATSIHWA, the HSU, United Voice (now United Workers’ Union), the Australian Federation of Employers and Industries (AFEI) and Australian Business Industrial and the New South Wales Business Chamber.

[5] Following the hearings further submissions were filed by NATSIHWA, the HSU and the Australian Medical Association.

[6] On 22 July 2020 we issued a decision (July Decision) 2 whereby we addressed the substantive claims proposed by NATSIHWA and the HSU. The background and context to the claims made by NATSIHWA is outlined at [33]-[81] of the July Decision.

[7] In the July Decision we also outlined our proposed variations to the Award and issued a draft variation determination accordingly. Interested parties were invited to comment on the draft variation determination by 12 August 2020. We asked interested parties to address a series of questions relating to the proposed as outlined at [289]-[294] of the July Decision.

[8] In the July Decision we said that any outstanding issues would be determined based on the written material filed unless a request for an oral hearing was received by Wednesday 26 August 2020. No such request was received.

[9] Following the directions issued in the July Decision submissions were received from the HSU 3 and NATSIHWA.4

[10] In making its submissions, NATSIHWA relies on its submissions dated 18 September 2020 and 18 June 2019, its oral submissions at the hearings before us on 25 and 26 July 2019 and its outline of further submissions dated 9 August 2019. 5

Substantive issues

Uncontentious

[11] We will now finalise the variations we proposed to make to the 2020 Award in the July Decision, and which are uncontentious.

[12] At [121] of the July decision we proposed to expand the coverage of the Award to include Aboriginal and/or Torres Strait Islander health workers and practitioners as an occupation in the manner sought by NATSIHWA in its submissions dated 18 June 2019 6 and its further amended draft determination dated 9 August 20197. We set out the proposed changes in the draft determination attached to the July Decision. No party opposed our proposition to expand the coverage of the award as outlined. We will amend the 2020 Award accordingly.

[13] At [202] of the July Decision we proposed that the Award should be varied to include the “progression”, “recognition of previous service” and “evidence of qualifications” clauses, as outlined at [195]-[197] of the July Decision, with renumbering to reflect the 2020 Award clause numbering. No party opposed our proposition. We will amend the 2020 Award accordingly.

[14] At [217] of the July Decision we proposed that the allowance clauses set out at [218] of the July Decision be included in the Award, namely the Nauseous Work Allowance, Telephone allowance, Blood check allowance and Replacement, Cleaning or Repair to Damaged Clothing Allowance. No party opposed our proposition. However, submissions were received in relation to the title and contents of the Blood check allowance. Save for the Blood check allowance, with which we will deal below, we will amend the 2020 Award as set out at [218] of the July Decision.

[15] At [225] of the July Decision we proposed that a new clause 15.3 (Rest Breaks – working in heat) be added to the Breaks provisions of the Award as outlined in that paragraph. No party opposed this course of action. We will amend the 2020 Award accordingly.

[16] At [249] of the July Decision we concluded that the Ceremonial Leave clause should be amended as outlined at [245] of the July Decision and be included and renumbered as clause 27 in the 2020 Award. No party opposed our proposed course of action. We will amend the 2020 Award accordingly.

[17] At [261] of the July Decision we proposed to amend clause 15 of the 2020 Award by renaming the clause to that of ‘Breaks’ and incorporating a ‘Paid rest breaks’ provision as set out in that paragraph. No party opposed our proposition. We will amend the 2020 Award accordingly.

Outstanding issues

[18] We now address the substantive issues that remained outstanding following the July Decision in light of the recent submissions received by NATSIHWA and the HSU.

Award title

[19] At [121] of the July Decision we proposed that the title of the Award should be changed to the Aboriginal and/or Torres Strait Islander Health Workers and Practitioners and Community Controlled Health Services Award, consistent with the change made to the coverage of the Award. Interested parties were asked to comment on whether the title of the award should be ‘Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award’. 8

[20] NATSIHWA agrees with our proposal to rename the Award as “Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award”. 9

[21] The HSU submits that it has no preference for either Award title option. 10

[22] We consider that renaming the title of the Award to that of ‘Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award’ would accurately reflect the intended coverage of the Award. Specifically, it will continue to cover employers in the Aboriginal community controlled health services industry while expanding the scope to cover other employers throughout Australia in public and private medical practices who engage Aboriginal and Torres Strait Islander health workers and practitioners. We will amend the Award title accordingly.

[23] We have also made minor amendments to the clauses 4.1(b) and 4.3 to clarify that coverage of the Award operates in respect of both Aboriginal and/or Torres Strait Islander Health Workers and Aboriginal and/or Torres Strait Islander Health Practitioners.

Exclusions from award coverage

[24] At [291] of the July Decision we invited parties to confirm whether clauses 4.5(c) and (d), as set out in the draft determination, should be retained in the 2020 Award. Clauses 4.5(c) and (d) deal with modern enterprise awards, enterprise instruments, state reference public sector modern awards and state reference public sector transitional awards.

[25] NATSIHWA endorses the removal of clauses 4.5(c) and 4.5(d) on the basis that these exclusions have little (if not no) ‘work’ to do. It submits that to the extent that another instrument applies by operation of the Fair Work Act 2009, that matter is not conveniently canvassed in the Award. 11

[26] The HSU is of the view that clauses 4.5(c) and (d) should be retained as they may have ongoing relevance for employees covered by those instruments. 12

[27] We note that clauses 4.5(c) and (d) are exclusions commonly found in many awards. Neither party provided any material that would assist us determine whether there are any instruments of the type described in 4.5(c) and (d) that continue to cover employees that would otherwise fall with the scope of the Award. In these circumstances we intend to adopt a cautious approach and retain the existing exclusions. The existing clauses 4.5(c) and (d) will be retained.

On-hire and group training provisions

[28] At [292] we invited parties to comment on whether the change in coverage of the Award requires any consequential amendment to clauses 4.3 and 4.4 which deal with coverage of on-hire and group training services respectively. Clause 4.3 and 4.4 are as follows:

4.3 This award covers any employer which supplies labour on an on-hire basis in the Aboriginal community controlled health services industry in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. Clause 4.3 operates subject to the exclusions from coverage in this award.

4.4 This award covers employers which provide group training services for trainees engaged in the Aboriginal community controlled health services industry and/or parts of that industry and those trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. Clause 4.4 operates subject to the exclusions from coverage in this award.

[29] NATSIHWA submits that it understands clauses 4.3 and 4.4 to be standard form exclusions in modern awards and is not aware of circumstances which support amendments. 13

[30] The HSU submits it is not certain that a consequential amendment is required for clause 4.4, but is of the view that there may need to be a consequential amendment to clause 4.3 to reflect the change to coverage in the award. 14 It submits that this could be achieved by amending clause 4.3 by inserting the italicised words as follows:

This award covers any employer which supplies labour on an on-hire basis in the Aboriginal community controlled health services industry or which supplies employees engaged as an Aboriginal and/or Torres Strait Islander Health Workers in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. Clause 4.3 operates subject to the exclusions from coverage in this award.

[31] Contrary to NATSIHWA’s submission, clauses 4.3 & 4.4 do not operate as ‘standard form exclusions’ but rather, operate to include within the coverage of the Award, labour hire firms and group training providers that supply labour or provided trainees in the Aboriginal community controlled health services industry. The purpose of our invitation to the parties for comment was to obtain their views as to whether the inclusionary effect of the existing clause 4.3 & 4.4 be extended to reflect the proposed changes to the coverage of the Award, That is, to also capture labour hire firms and group training providers that engage Aboriginal and Torres Strait Islander health workers and practitioners and trainees who are not engaged in the Aboriginal community controlled health services industry but are engaged in other public or private medical practices.

[32] The HSU are of the view that clause 4.3 should be amended to reflect the extended coverage of the Award. We agree. A consequential amendment will ensure that labour hire firms are brought within the coverage of the Award in respect of employees engaged as Aboriginal and Torres Strait Islander health workers and practitioners whether they are engaged for the performance of work for a business within the Aboriginal community controlled health services industry or in other public or private medical practices. We therefore propose to amend and insert the following new clause:

4.3 This award covers any employer which supplies labour on an on-hire basis in the Aboriginal community controlled health services industry or which supplies employees engaged as Aboriginal and/or Torres Strait Islander Health Workers or as Aboriginal and/or Torres Strait Islander Health Practitioners in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry or engaged for a business in public or private medical practice. Clause 4.3 operates subject to the exclusions from coverage in this award.

[33] The HSU express uncertainty as to whether a consequential amendment is required in respect of clause 4.4. The rationale described above in respect of amending clause 4.3 has equal force in our view to clause 4.4 in respect of group training providers. That is, the coverage of the Award should in our view be expressed so as to extend to training providers where they engage trainees under the Award for the performance of work for a business within either the Aboriginal community controlled health services industry or in other public or private medical practices. We therefore propose to amend and insert the following clause;

4.4 This award covers employers which provide group training services for trainees engaged in the Aboriginal community controlled health services industry and/or parts of that industry and/or as trainees in occupations in classifications covered by this award and those trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. Clause 4.4 operates subject to the exclusions from coverage in this award.

[34] Interested parties will be provided with an opportunity to make any comments in relation to the proposed clauses 4.3 & 4.4 above before the Determination is finalised.

Monetary allowances

[35] At [293] of the July Decision we invited interested parties to comment on the calculation of the allowances in the 2020 Award as set out in the draft determination. At [242] we also determined that a Medication Administration Allowance should be included in the Award as set out at [239], albeit it will be renumbered to be clause 19.2(f) in the 2020 Award.

[36] The HSU submits that the calculations of the allowances in the draft determination appear correct. 15

Medication Administration Allowance

[37] NATSIHWA submits that the Medication Administration Allowance of 0.25% of the standard rate should be payable per day (not per week). It submits that unless monetary compensation of $2.44 per day is paid, the allowance will insufficiently compensate employees for the additional responsibility (specifically in circumstances where no uplift in classification/wages for Health Practitioners will occur).

[38] NATSIHWA’s original claim was for a Medication Administration Allowance of 0.25% of the standard rate per week. We accepted that claim in the precise terms sought and which was reflected in the Draft Determination. A greater allowance is now sought by NATSIHWA on the apparent basis that a different element of their claims, that being the Health Practitioners work value case advanced, was not accepted by us. We note that NATSIHWA’s claim for a Medication Administration Allowance was not put on the basis that the quantum sought was subject to the outcome of the Health Practitioners work value case. In those circumstances we are not disposed to reopening the matter. We will consequently amend the 2020 Award in the terms set out in the Draft Determination.

Blood check allowance

[39] At [294] of the July Decision we noted that the title of the proposed clause is ‘blood check allowance’, however the clause refers to a ‘blood count’. Parties were asked to confirm whether the clause should also refer to a ‘blood check’. 16

[40] The HSU submits that the term ‘blood count’ has specific meaning relevant to radiation hazards and that the phrase should be retained. It submits that it would not oppose the title of the Blood check allowance clause being amended to ‘Blood Count Allowance’. 17 NATSIHWA does not oppose the renaming of the ‘Blood Check Allowance’ as the ‘Blood Count Allowance’.18

[41] We consider it is appropriate that the title of the clause includes terminology that has particular meaning with respect to exposure to radiation hazards, that being the term ‘blood count’. As such we will amend the title of clause 15.6 to that of ‘Blood count allowance’.

Occasional Interpreting Allowance

[42] At [236]-[237] of the July Decision we explained that given the revised provisions in the 2020 Award, it is our provisional view that the basis for the variation for the inclusion of the Occasional Interpreting Allowance sought by NATSIHWA, as outlined at [232]-[235] of the July Decision, no longer exists. Interested parties were given the opportunity to make submissions in relation to the claim based on 18.2(a) of the 2020 Award. Submissions in support of the inclusion of the Occasional Interpreting Allowance were due by 5 August 2020 and parties opposing the inclusion were also given the opportunity to reply. 19 No submissions were received.

[43] As no party made submissions in relation to the Occasional Interpreting Allowance, we now confirm our provisional view that given the revised provisions in the 2020 Award, the basis for the variation for the inclusion of the Occasional Interpreting Allowance sought by NATSIHWA, no longer exists.

Introducing a 6 “Grade” classification structure to incentivise education, training and development

[44] In its submissions dated 18 June 2019, NATSIHWA contended that there is a lack of opportunity for career progression in the existing 4 Grade classification structure in the Award. 20 NATSIHWA proposed to insert a new classification structure to reflect the work that is actually performed by Aboriginal and Torres Strait Islander (A&TSI) health workers and practitioners (A&TSIHWs and A&TSIHPs) and to provide a career path to incentivise this profession.21 NATSIHWA also sought to include several new definitions for the classification structure.

[45] The additional two grades proposed by NATSIHWA would be created in part by separation of the current grade 1 into two grades – Grade 1 and Grade 2. The 6 Grade structure would also include a new Grade 6 for Senior Health Practitioners and Coordinator Care. Advanced Health Worker – Care classification would be Grade 4 and Current Grade 4 health workers (who are Senior Health Workers) become Grade 5. However corresponding wage rates would remain the same. The Advanced Health Worker – Practice and Health Practitioner classifications would become Grade 5 with a corresponding wage rate increase. NATSIHWA also proposed a management classification at Grade 6 with Senior Health Practitioners and Coordinator Care to be included.

[46] NATSIHWA advanced a work value case in respect of two classifications. It sought an uplift in rates of pay and a change to the classification structure for workers who are “Advanced Health Workers – Practice” and “Health Practitioners” (Grade 5 work value claim). It also sought the introduction of a Grade 6 which is a new grade that contemplates the creation of senior roles for A&TSIHWs and A&TSIHPs operating at a senior level with responsibility in the implementation, coordination, management and evaluation of health programs and service delivery in one or more specialised programs (Grade 6 work value claim).

[47] NATSIHWA’s proposed classification structure and accompanying weekly rates of pay is summarised at [127] of the July Decision. A summary of the Grade 5 work value claim and Grade 6 work value claim is also set out at [128]-[160].

[48] In submissions in reply, AFEI raised concerns with the quantum of the proposed wage increases and their relativity with other award rates of pay. AFEI’s submissions in reply are summarised in the July Decision at [161]-[170].

[49] For the reasons outlined in the July Decision at [171]-[190] we declined the Grade 5 work value claim and the Grade 6 work value claim. However, we were satisfied that separating the existing Grade 1 entry level classification into two grades - Grades 1 and 2 for Health Worker trainees with corresponding wage rates to remain as currently set would meet the modern award objective at s.134(c) of the Fair Work Act 2009.

[50] We also expressed that the change to the classification structure would result in a consequent change from the existing 4 grade to 5 grade structure and we invited NATSIHWA to provide a revised draft classification structure reflecting our decision.

[51] In its submission dated 30 September 2020 NATSIHWA provided a revised classification structure at Annexure A and a summary of changes as sought by NATSIHWA as compared to those accepted in the July Decision at Annexure B. 22

[52] NATSIHWA submits that the decision not to include a new “Grade 6” that would recognise the senior, supervisory work undertaken by the roles of “Senior Health Practitioners” and “Coordinator Care” roles results in ‘crowding’ “Grade 5”. 23

[53] It submits that the new Grade 5 now must accommodate senior employees and their managers, having the effect of limiting the career path and requiring employees who supervise their co-workers, in some instances, to receive the same award classification (in addition to not recognising their more senior qualifications, responsibilities and duties). 24

[54] NATSIHWA also submits that the title Aboriginal and/or Torres Strait Islander Health Practitioner is a protected title (as defined in the national legislation) and Health Practitioners must maintain registration as a condition of their employment and hold a Certificate IV in Aboriginal and/or Torres Strait Islander Primary Health Care Practice or Board accredited program of Study. 25 It submits that this title should also be adopted in the Award, where appropriate.

[55] We note NATSIHWA’s comments regarding the classification “crowding” that arises from our declining the Grade 5 & 6 work value claims. That concern does not persuade us to alter our view in relation to the work value claims. Moreover, it is not unusual for classification structures within modern awards to provide at particular classification levels for both technical specialists and persons with more senior responsibilities. See for example in the Health Professionals and Support Services Award 2020 26 where a Health Professional – Level 4 “may be responsible to the executive for providing effective services and ensuring budget/strategic targets are met”.

[56] We also observe that the classification structure in the Award imposes no impediment to the progression of Aboriginal and Torres Strait Islander health workers and practitioners into more senior management roles within an Aboriginal community controlled health service. See for example Levels 7 & 8 within the Administrative stream. Grade 7 staff “usually manage the operations of an organisational element or undertake a management function” while somebody classified at Grade 8 would be a Chief Executive Officer.

[57] Having regard to the above we will amend the Award to reflect the revised classification structure as provided by NATSIHWA in Annexure A attached to its 30 September 2020 submission.

[58] As regards NATSIHWA’s submission that the title Aboriginal and Torres Strait Islander Practitioners is protected in the National Legislation and should be adopted in the Award where appropriate, it is not clear to us whether NATSIHWA are now proposing that a review of the Award be conducted to identify where changes to titles are required. If so, NATSIHWA are at liberty to make a fresh application for amendment of the Award.

Conclusion

[59] A Draft Determination reflecting this decision is attached. Interested parties are invited to comment on the proposed wording of clauses 4.1(b), 4.3 & 4.4. Any submissions or comments are to be made, in writing to [email protected] on or by Tuesday, 15 December 2020.