| [2021] FWCFB 5493 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards—Social, Community, Home Care and Disability Services Industry Award 2010
(AM2018/26)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 3 SEPTEMBER 2021 |
4 yearly review of modern awards – Social, Community, Home Care and Disability Services Industry Award 2010
[1] In a Statement 1 published on 9 August 2021 (9 August 2021 Statement), we decided that the following matters in respect of the broken shift issue would be the subject of a further opportunity to file submissions and evidence:
1. NDS’ proposal that the first sentence of clause 25.6 of the draft determination be amended to read:
‘This clause only applies to day workers who are social and community service employees when undertaking disability services work and home care employees.’
2. NDS’ proposal that clause 25.6(d) of the draft determination be amended to read:
‘Payment for a broken shift will be at ordinary pay with weekend and overtime penalty rates, including for time worked outside the span of hours, to be paid in accordance with clauses 26 and 28.’
3. The ASU proposal that clause 25.6(d) of the draft determination be amended as follows:
‘Payment for a broken shift will be at ordinary pay with shift, weekend, public holiday, and overtime, penalty rates to be paid in accordance with clauses 26, and 28, 29 and 34.’
4. The ASU proposal that, in the absence of a provision for paid travel time, the SCHADS Award should provide a clear statement that employees must not be required to travel between work locations during their meal breaks and that overtime should be payable until an employee is allowed a meal break free from travel. 2
[2] The 9 August 2021 Statement included a direction that any submissions and evidence in respect of the particular issues set out in [1] above and the remote response and damaged clothing issues, were to be filed by no later than 4.00pm (AEST) on Wednesday, 25 August 2021. Any submissions and evidence in reply were to be filed by no later than 4.00pm (AEST) on Monday 30 August 2021.
[3] Initial submissions were received from the following interested parties:
• ABI
• AFEI
• Ai Group
• ASU
• HSU
• NDS
• UWU
[4] Submissions in reply were received from: 3
• ABI
• AFEI
• Ai Group
• ASU
• Challenge Community Services
• HSU
• NDS.
[5] The hearing in respect of these matters took place on 1 September 2021. The transcript of that hearing is available here.
[6] Arising from that process was a proposal in relation to remote response work was agreed between a number of the parties (the Joint Proposal).
[7] During the course of the 1 September hearing we made the following directions:
Remote Response
1. ABI and Ai Group are to file a joint report identifying any proposed drafting changes to the Joint Proposal (Joint Report). Ai Group is to provide a note identifying any remaining merit differences between its proposal and the Joint Proposal by 4.00pm (AEST) on Wednesday, 8 September 2021.
2. Other parties are to file a response to the Joint Report and note filed pursuant to Direction 1 by 4.00pm (AEST) on Friday, 10 September 2021.
Revised Draft Determination
3. ABI is to file its proposed amendment to clause 10.3(f) and a short note in support of the proposed amendment by 4.00pm (AEST) on Thursday, 2 September 2021.
4. HSU is to file its proposed amendment to clause 25.5(f)(v) and 25.6(b)(ii) and a short note in support of the proposed amendments by 4.00pm (AEST) on Thursday, 2 September 2021.
5. Other parties are to file any written reply to the submissions filed pursuant to Directions 3 and 4 by 4.00pm (AEST) on Wednesday, 8 September 2021.
6. ABI and HSU are to provide any written reply to the submissions filed pursuant to Direction 5 by 4.00pm (AEST) on Friday, 10 September 2021.
7. All submissions should be filed in both PDF and Word document formats, via email to [email protected].
[8] This statement concerns some residual issues in respect of broken shifts.
[9] In section 5.3 of our 4 May 2021 Decision 4 (May 2021 Decision), we set out our reasons for deciding to vary clause 25.6 of the SCHADS Award in order to:5
• define a broken shift as a shift consisting of 2 separate periods of work with a single unpaid ‘break’ (other than a meal break);
• clarify how this interacts with the new minimum payment clause; and
• accommodate the occasional need for broken shifts involving more than 1 unpaid break, subject to:
• a maximum of 2 unpaid ‘breaks’ in the shift
• a 2 break shift would be subject to the agreement of the employee, on a per occasion basis, and
• a 2 break shift would be subject to a higher payment than that payable for a 1 break shift, in recognition of the additional disutility.
[10] The draft determination in respect of this aspect of the May 2021 Decision was varied by our decision of 25 August 2021 (August 2021 Decision). 6 Item 12 of the draft determination set out at Attachment 1 to the August 2021 Decision provides as follows:
‘25.6 Broken shifts
This clause only applies to social and community services employees when undertaking disability services work and home care employees.
(a) Broken shift with 1 unpaid break
(i) An employer may only roster an employee to work a broken shift of 2 periods of work with 1 unpaid break (other than a meal break).
(ii) An employee rostered to work a broken shift with 1 unpaid break must be paid the allowance in clause 20.10(a).
(b) Agreement to work a broken shift with 2 unpaid breaks
(i) Despite clause 25.6(a), an employer and an employee may agree that the employee will work a broken shift of 3 periods of work with 2 unpaid breaks (other than meal breaks).
(ii) An agreement under clause 25.6(b)(i) must be made before each occasion that the employee is to work a broken shift with 2 unpaid breaks unless the working of the 2 break broken shift is part of the agreed regular pattern of work in an agreement made under clause 10.3 or subsequently varied.
(iii) An employee who works a broken shift with 2 unpaid breaks must be paid the allowance in clause 20.10(b).
(c) Where a break in work falls within a minimum payment period in accordance with clause 10.5 then it is to be counted as time worked and does not constitute a break in a shift for the purposes of clause 25.6(a)(i) or clause 25.6(b)(i).
(d) Payment for a broken shift will be at ordinary pay with weekend and overtime penalty rates to be paid in accordance with clauses 26 and 28.
(e) The span of hours for a broken shift is up to 12 hours. All work performed beyond a span of 12 hours will be paid at double time.
(f) An employee must receive a minimum break of 10 hours between broken shifts rostered on successive days.’
[11] There is a controversy about the correct interpretation of the SCHADS Award, in particular about whether shift workers can work broken shifts. The interpretation issue arises in the context of our decision to vary clause 25.6.
[12] A ‘broken shift’ is defined in clause 25.6(a) of the SCHADS Award to mean ‘a shift worked by an employee that includes one or more breaks (other than a meal break) and where the span of hours is not more than 12 hours.’
[13] The controversy arises from the interaction of clauses 29.4 and 25.6. Clause 29 deals with ‘Shiftwork’; clause 29.4 provides:
‘Shifts are to be worked in one continuous block of hours that may include meal breaks and sleepover.’
[14] Clause 25.6 deals with ‘Broken shifts’ and provides, relevantly:
‘(b) Payment for a broken shift will be at ordinary pay with penalty rates and shift allowances in accordance with clause 29—Shiftwork, with shift allowances being determined by the finishing time of the broken shift.’
[15] The crux of the issue in contest is the application to shiftworkers of our decision to vary clause 25.6.
[16] It is our provisional view that we not express an opinion about the interaction of clauses 25.6 and 29.4 and whether the SCHADS Award currently permits an afternoon or night shift (as defined by clause 29.2) to be broken in accordance with clause 25.6.
[17] In reaching that provisional view we are conscious that the Commission cannot make a binding determination as to the existing rights and obligations of employees and employers covered by the SCHADS Award. We may form an opinion about existing legal rights as a step in the process of determining whether or not to vary the SCHADS Award; but it seems to us that to embark on such an exercise may result in further disputation. As these proceedings form part of the 4 yearly review of the SCHADS Award, the Commissions’ task is to determine whether the SCHADS Award achieves the modern awards objective. 7
[18] In short, we may make a determination varying the SCHADS Award if we are satisfied that it is necessary to do so to ensure that the award, together with the NES, provides a fair and relevant minimum safety net of terms and conditions.
[19] The various employer interests broadly support a draft determination filed by Ai Group on 31 August 2021. As a consequence it appears that items 1 and 2 set out at [1] above are no longer pressed. The Unions have not yet had an opportunity to make submissions in respect of Ai Group’s draft determination.
[20] Toward the end of the hearing on 1 September we advised the parties that we proposed to formulate a series of questions in respect of the application of our decision to vary clause 25.6. The parties would then have an opportunity to file submissions in respect of those questions.
[21] The questions we propose are as follows:
1. Is there any opposition to our provisional view at [16] above?
2. Should the SCHADS Award permit an afternoon or night shift to be broken in accordance with clause 25.6? (Noting that it is common ground that clause 25.6 only applies to social and community services employees when undertaking disability services work and home care employees).
3. If the Commission decides that the answer to Question 2 is yes, then what terms and conditions should apply to shiftworkers when working broken shifts?
4. Should the SCHADS Award be varied to provide a clear statement that employees must not be required to travel between work locations during their meal breaks and that overtime should be payable until an employee is allowed a meal break free from travel (as proposed by the ASU). If so, what form should that variation take?
[22] We propose to provide the parties with a short opportunity to comment on the appropriateness of the questions above and whether any further questions should be posed, by no later than 4.00pm (AEST) on Monday, 6 September 2021. Notes should be sent to [email protected]. The questions will be published in final form by no later than 10am on Tuesday, 7 September 2021.
[23] The parties are directed as follows:
1. Parties are to file written submissions, and any evidence upon which the wish to rely, addressing the questions by 4.00pm (AEST) on Wednesday, 15 September 2021.
2. Parties are to file any written submissions and evidence in reply to the submissions filed pursuant to Direction 1 by 4.00pm (AEST) on Friday, 24 September 2021.
3. All submissions should be filed in both PDF and Word document formats, via email to [email protected].
4. Parties are at liberty to apply.
[24] Parties who wish to have the matter listed for hearing are to inform the Full Bench by no later than 4.00pm (AEST) on Monday, 27 September 2021. Unless there is a request for an oral hearing, or we decide that an oral hearing is required, these remaining matters will be determined on the papers. In the event that a hearing is required the matter will be listed at 9.30am (AEST) on Thursday, 30 September 2021.
[25] We would add the following observations in respect of the material to be filed in accordance with these directions:
1. If possible, the various interests should seek to collaborate and file joint submissions (i.e., Joint Employer and Joint Union submissions).
2. The submissions filed should be stand alone documents and should not seek to incorporate, by reference, any earlier submissions.
3. Parties who answer Question 2 in the affirmative should set out the basis on which they contend such a term is necessary (in the s.138 sense) by reference to the evidence in the proceedings.
In this context we note that in its submission of 30 August 2021, Challenge Community Services (Challenge) states that after reviewing its rosters for the period 1 January 2021 to 1 August 2021, approximately 12% of all broken shifts were rostered after 8pm.
If Challenge wishes to rely on any assertions made its in submission, it is to file a witness statement(s) attesting to the views asserted in its submissions in accordance with the above directions.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
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2 ASU submission, 3 August 2021 at [41].
3 The UWU confirmed that it did not intend to file any reply submissions. See UWU correspondence, 30 August 2021.
4 [2021] FWCFB 2383 (‘May 2021 Decision’).
5 May 2021 Decision at [488].
7 See our decision of 2 September 2021, [2019] FWCFB 6067 at [7]-[21].