MA000100  PR737905
FAIR WORK COMMISSION

DETERMINATION

Fair Work Act 2009
s.156—4 yearly review of modern awards
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective

4 yearly review of modern awards—Social, Community, Home Care and Disability Services Industry Award 2010
(AM2018/26 and AM2020/100)

SOCIAL, COMMUNITY, HOME CARE AND DISABILITY SERVICES INDUSTRY AWARD 2010
[MA000100]

Social, community, home care and disability services

DEPUTY PRESIDENT CLANCY

MELBOURNE, 31 JANUARY 2022

Four yearly review of modern awards – Award stage – Group 4A awards – substantive issues – Social, Community, Home Care and Disability Services Industry Award 2010.

A. Further to the decisions issued by the Full Bench of the Fair Work Commission on 4 May 2021 ([2021] FWCFB 2383), 25 August 2021 ([2021] FWCFB 5244), 18 October 2021 ([2021] FWCFB 5641) and 31 January 2022 ([2022] FWC 198), the above award is varied as follows:

1. By deleting clause 10.3 and inserting the following:

10.3 Part-time employment

(a) A part-time employee is one who is engaged to work less than 38 hours per week or an average of less than 38 hours per week and who has reasonably predictable hours of work.

(b) The terms of this award will apply to part-time employees on a pro-rata basis on the basis that the ordinary weekly hours of work for full-time employees are 38.

(c) Before commencing employment, the employer and employee will agree in writing on:

(d) The agreed regular pattern of work does not necessarily have to provide for the same guaranteed hours each week.

(e) The agreement made pursuant to clause 10.3(c) may subsequently be varied by agreement between the employer and employee in writing. Any such agreement may be ongoing or for a specified period of time.

(f) An employer must not require a part-time employee to work additional hours in excess of their guaranteed hours. However, an employee may agree to work hours that are additional to their guaranteed hours.

(g) Review of guaranteed hours

2. By deleting clause 10.4(b).

3. By renumbering clause 10.4(a) as a paragraph in clause 10.4.

4. By renumbering clause 10.5 as 10.6.

5. By inserting a new clause 10.5 as follows:

10.5 Minimum payments for part-time and casual employees

Part-time and casual employees will be paid for the following minimum number of hours, at the appropriate rate, for each shift or period of work in a broken shift:

(a) social and community services employees (except when undertaking disability services work)—3 hours;

(b) all other employees—2 hours.

6. By inserting clause 10.5A after clause 10.5 as follows:

10.5A Transitional arrangements applying to minimum payments for part-time employees

Clause 10.5A operates from 1 February 2022 until 1 October 2022.

NOTE: From 1 July 2022, this award will include a requirement for part-time employees to be paid for the following minimum number of hours, at the appropriate rate, for each shift or period of work in a broken shift: social and community services employees (except when undertaking disability services work)—3 hours; all other employees—2 hours (the minimum payment requirements). This clause provides transitional arrangements for the minimum payment requirements.

(a) Clause 10.5A applies in relation to agreements made under clause 10.3(c) before 1 February 2022, where the employee’s agreed regular pattern of work includes shifts or periods of work in broken shifts of less than:

(b) The employer must discuss the relevant minimum payment requirements with the employee and genuinely try to reach agreement on a variation to the agreement made under clause 10.3(c) that will make each of the employee’s shifts or periods of work in broken shifts consistent with the hours specified in clause 10.5A(a)(i) or (ii) and will reasonably accommodate the employee’s circumstances.

(c) Notwithstanding any prior agreement between the employer and the employee and despite clause 10.3(e), if the employer has genuinely tried to reach an agreement with the employee under clause 10.5A(b) but an agreement is not reached (including because the employee refuses to confer), the employer may vary the agreement made under clause 10.3(c) to provide for shifts or periods of work in broken shifts that are consistent with the hours specified in clause 10.5A(a)(i) or (ii), by providing 42 days’ notice to the employee in writing.

(d) A variation by the employer under clause 10.5A(c) varies the agreement between the employer and employee made under clause 10.3(c).

(e) A variation made under clause 10.5A(c) must not come into operation before 1 July 2022.

(f) Clause 10.5A(c) is intended to operate in conjunction with clause 10.3(e) and does not prevent an employee and employer from agreeing to vary the agreement made under clause 10.3(c) in other circumstances.

7. By deleting Note 1 and Note 2 appearing at the beginning of clause 15.

8. By inserting the following note as a new paragraph after the end of clause 15:

NOTE 1: A transitional pay equity order taken to have been made pursuant to item 30A of Schedule 3A to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) has effect in accordance with that item. Transitional pay equity orders operate in Queensland as provided for in items 30A (6) and (7).

9. By inserting the following note as a new paragraph after the end of clause 15:

NOTE 2: An equal remuneration order [PR525485] also applies to employees in the classifications in Schedule B—Classification Definitions—Social and Community Services Employees and Schedule C—Classification Definitions—Crisis Accommodation Employees of this award. The final rates of pay resulting from the equal remuneration order are set out below. The ‘current hourly wage’ and ‘current weekly wage’ in the tables below form employees’ ordinary rates of pay for all purposes:

Equal remuneration rates for applicable Social and Community Services employees—from 1 December 2020

 

Clause

Minimum weekly wage

Final Rate ERO Percentage

Current weekly wage

Current hourly wage

Classification

 

$

%

$

$

Social and community services employee level 2

15.2

       

Pay point 1

 

899.50

123

1106.39

29.12

Pay point 2

 

927.70

123

1141.07

30.03

Pay point 3

 

955.90

123

1175.76

30.94

Pay point 4

 

981.50

123

1207.25

31.77

Social and community services employee level 3

15.3

 

     

Pay point 1 (associate diploma/advanced certificate)

 

981.50

126

1236.69

32.54

Pay point 2

 

1009.70

126

1272.22

33.48

Pay point 3 (3 year degree)

 

1031.30

126

1299.44

34.20

Pay point 4 (4 year degree)

 

1052.40

126

1326.02

34.90

Social and community services employee level 4

15.4

 

     

Pay point 1

 

1080.60

132

1426.39

37.54

Pay point 2

 

1108.80

132

1463.62

38.52

Pay point 3

 

1137.30

132

1501.24

39.51

Pay point 4

 

1162.70

132

1534.76

40.39

Social and community services employee level 5

15.5

 

     

Pay point 1

 

1191.10

137

1631.81

42.94

Pay point 2

 

1216.60

137

1666.74

43.86

Pay point 3

 

1245.00

137

1705.65

44.89

Social and community services employee level 6

15.6

 

     

Pay point 1

 

1273.40

140

1782.76

46.91

Pay point 2

 

1301.40

140

1821.96

47.95

Pay point 3

 

1329.60

140

1861.44

48.99

Social and community services employee level 7

15.7

 

     

Pay point 1

 

1357.80

142

1928.08

50.74

Pay point 2

 

1386.30

142

1968.55

51.80

Pay point 3

 

1414.50

142

2008.59

52.86

Social and community services employee level 8

15.8

 

     

Pay point 1

 

1442.70

145

2091.92

55.05

Pay point 2

 

1471.00

145

2132.95

56.13

Pay point 3

 

1499.50

145

2174.28

57.22

Equal remuneration rates for Crisis Accommodation employees—from 1 December 2020

 

Clause

Minimum weekly wage

Final Rate ERO Percentage

Current weekly wage

Current hourly wage

Classification

 

$

%

$

$

Crisis accommodation employee Level 1

15.3

       

Pay point 1 (associate diploma/advanced certificate)

 

981.50

126

1236.69

32.54

Pay point 2

 

1009.70

126

1272.22

33.48

Pay point 3 (3 year degree)

 

1031.30

126

1299.44

34.20

Pay point 4 (4 year degree)

 

1052.40

126

1326.02

34.90

Crisis accommodation employee level 2

15.4

       

Pay point 1

 

1080.60

132

1426.39

37.54

Pay point 2

 

1108.80

132

1463.62

38.52

Pay point 3

 

1137.30

132

1501.24

39.51

Pay point 4

 

1162.70

132

1534.76

40.39

Crisis accommodation employee level 3

15.5

       

Pay point 1

 

1191.10

137

1631.81

42.94

Pay point 2

 

1216.60

137

1666.74

43.86

Pay point 3

 

1245.00

137

1705.65

44.89

Crisis accommodation employee level 4

15.6

       

Pay point 1

 

1273.40

140

1782.76

46.91

Pay point 2

 

1301.40

140

1821.96

47.95

Pay point 3

 

1329.60

140

1861.44

48.99

10. By renumbering clauses 20.3 to 20.9 as clauses 20.5 to 20.11.

11. By inserting a new clause 20.3 as follows:

20.3 Laundering of clothing other than uniforms

If during any day or shift, the clothing of an employee (other than a uniform) is soiled in the course of the performance of their duties, the employee will be paid a laundry allowance of $0.32 cents per shift provided that:

(a) As soon as reasonably practicable the employee provides notice of the soiling and, if requested, evidence that would satisfy a reasonable person of the soiling and/or how it occurred; and

(b) At the time the clothing was soiled the employee had complied with any reasonable requirement of the employer in relation to the wearing of personal protective equipment either provided or paid for by the employer in accordance with clause 20.2(d).

12. By inserting a new clause 20.4 as follows:

20.4 Repair and replacement of clothing other than uniforms

(a) If the clothing of an employee is soiled or damaged (excluding normal wear and tear) in the course of the performance of their duties, to the extent that its repair or replacement is necessary, the employer must reimburse the employee for the reasonable cost incurred in repairing or replacing the clothing with a substitute item, provided that:

(b) This clause will not apply where an employee is permitted or required to wear a uniform supplied by the employer or is otherwise entitled to any payment under clause 20.2.

13. By deleting renumbered clause 20.11 and inserting the following:

20.11 On call allowance

An employee required by the employer to be on call (i.e. available for recall to duty at the employer’s or client’s premises and/or for remote work) will be paid an allowance of:

(a) 2.0% of the standard rate ($20.63) for any 24-hour period or part thereof during the period from the time of finishing ordinary duty on Monday to the time of finishing ordinary duty on Friday; or

(b) 3.96% of the standard rate ($40.84) in respect of any other 24-hour period or part thereof, or any public holiday or part thereof.

14. By inserting clause 20.12 as follows:

20.12 Broken shift allowance

(a) An employee required to work a broken shift with 1 unpaid break in accordance with clause 25.6(a) will be paid an allowance of 1.7% ($17.53) of the standard rate, per broken shift.

(b) An employee who agrees to work a broken shift with 2 unpaid breaks in accordance with clause 25.6(b) will be paid an allowance of 2.25% ($23.20) of the standard rate, per broken shift.

15. By deleting clause 25.5(d)(ii) and inserting the following:

16. By deleting clause 25.5(f) and inserting the following:

(f) Client cancellation

17. By deleting clause 25.6 and inserting the following:

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

(b) Agreement to work a broken shift with 2 unpaid breaks

(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, overtime and public holiday penalty rates to be paid in accordance with clauses 26—Saturday and Sunday work, 28—Overtime and penalty rates and 34—Public holidays.

(e) An employee must be paid the shift allowances in accordance with clause 29—Shiftwork in relation to work performed on a broken shift, provided that:

Example: If an employee performs work on a broken shift from 9.00 am to 11.00am (first period of work) and then from 5.30 pm to 8.30 pm (second period of work), the afternoon shift allowance will be payable on the second period of work only.

(f) 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.

(g) An employee must receive a minimum break of 10 hours between broken shifts rostered on successive days.

18. By deleting clause 25.7(c) and inserting the following:

(c) The span for a sleepover will be a continuous period of 8 hours. Employees will be provided with a separate room with a bed and clean linen, the use of appropriate facilities (including access to food preparation facilities and staff facilities where these exist) and free board and lodging for each night when the employee sleeps over.

19. By deleting clause 25.8 and inserting the following:

25.8 24-hour care

This clause only applies to home care employees.

(a) A 24-hour care shift requires an employee to be available for duty in a client’s home for a 24-hour period. During this period, the employee is required to provide the client with the services specified in the care plan. The employee is required to provide a total of no more than 8 hours of care during this period.

(b) An employer may only require an employee to work a 24-hour care shift by agreement.

(c) The employee will be afforded the opportunity to sleep for a continuous period of 8 hours during a 24-hour care shift and employees will be provided with a separate room with a bed and clean linen, the use of appropriate facilities (including access to food preparation facilities and staff facilities where these exist) and free board and lodging for each night when the employee sleeps over.

(d) The employee will be paid 8 hours’ work at 155% of their appropriate rate for each 24-hour period.

(e) If the employee is required to perform more than 8 hours’ work during a 24-hour care shift, that work shall be treated as overtime and paid at the rate of time and a half for the first 2 hours and double time thereafter, except on Sundays when overtime will be paid for at the rate of double time, and on public holidays at the rate of double time and a half. An employer and employee may utilise the TOIL arrangement in accordance with clause 28.2.

(f) An employee may refuse to work more than 8 hours’ work during a 24-hour care shift in circumstances where the requirement to work those additional hours is unreasonable.

20. By inserting clause 25.10 as follows:

25.10 Remote work

(a) This clause applies where an employee is required by their employer to perform remote work.

(b) For the purpose of this clause, remote work means the performance of work by an employee at the direction of, or with the authorisation of, their employer that is:

(c) Minimum payments for remote work

(d) Rates of pay for remote work

(e) Other requirements

An employee who performs remote work must maintain and provide to their employer a time sheet or other record acceptable to the employer specifying the time at which they commenced and concluded performing any remote work and a description of the work that was undertaken. Such records must be provided to the employer within a reasonable period of time after the remote work is performed.

(f) Miscellaneous provisions

21. By deleting clause 28.1 and inserting the following:

28.1 Overtime rates

(a) Full-time employees

A full-time employee will be paid the following payments for all work done in addition to their rostered ordinary hours on any day and, in the case of day workers, for work done outside the span of hours under clause 25.2(a):

(b) Part-time employees and casual employees

22. By deleting clause 28.4 and inserting the following:

28.4 Recall to work overtime

An employee who is recalled to work overtime after leaving the workplace and requested by their employer to attend a workplace in order to perform such overtime work will be paid for a minimum of two hours’ work at the appropriate rate for each time recalled. If the work required is completed in less than two hours the employee will be released from duty.

23. By deleting clause 29.4 and inserting the following:

29.4 Shifts are to be worked in one continuous block of hours that may include meal breaks and sleepovers, except where broken in accordance with clause 25.6.

24. By deleting clause 31.2 and inserting the following:

31.2 Quantum of leave

For the purpose of the NES, a shiftworker is:

(a) an employee who works for more than 4 ordinary hours on 10 or more weekends during the yearly period in respect of which their annual leave accrues; or

(b) an employee who works at least eight 24-hour care shifts in accordance with clause 25.8 during the yearly period in respect of which their annual leave accrues; and

is entitled to an additional week’s annual leave on the same terms and conditions.

25. By updating cross-references accordingly.

B. Item 6 of this determination comes into operation on 1 February 2022. In accordance with s.165(3) of the Fair Work Act 2009 this item does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after 1 February 2022.

C. Items 1 to 5 and 7 to 25 of this determination come into operation on 1 July 2022. In accordance with s.165(3) of the Fair Work Act 2009 these items do not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after 1 July 2022.

ig

DEPUTY PRESIDENT

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