[2013] FWC 4141 |
FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years
Australian Municipal, Administrative, Clerical and Services Union
(AM2012/201)
Social, community, home care and disability services | |
VICE PRESIDENT WATSON |
SYDNEY, 27 JUNE 2013 |
Application to vary the Social, Community, Home Care and Disability Services Industry Award 2010 - minimum engagement periods for part-time employees - small business redundancy - broken shifts - weekend penalties for casual employees - overtime rates - public holidays - Fair Work Act 2009 - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
Introduction
[1] This decision concerns outstanding matters in the Australian Municipal, Administrative, Clerical and Services Union’s application to vary the Social, Community, Home Care and Disability Services Industry Award 2010 (SACS Award). The application is made under Sch. 5, Item 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) as part of the review of all modern awards of which Fair Work Australia is required to conduct after the first two years of all modern awards coming into effect (the 2012 Review). The matters were referred to me following the retirement of Senior Deputy President Kaufman, who heard other matters relating to the SACS Award.
[2] At the commencement of the 2012 Review, applications to vary the SACS Award were received from:
• United Voice;
• Group Training Australia;
• Aged and Community Services Association of NSW & ACT Inc and others;
• Catholic Commission for Employment Relations;
• Australian Business Industrial;
• Health Services Union of Australia;
• Australian Municipal, Administrative, Clerical and Services Union;
• Victorian Employers’ Chamber of Commerce and Industry;
• Australian Federation of Employers and Industry, and;
• Illawarra Multicultural Services Inc.
[3] The applications by Illawarra Multicultural Services Inc and Group Training Australia were subsequently withdrawn. The matters raised in all other applications aside from the application by the Australian Municipal, Administrative, Clerical and Services Union (ASU) were all dealt with by Senior Deputy President Kaufman. His Honour issued a consent determination 1 on 21 November 2012.
[4] Directions were issued by me for interested parties to file written submissions in relation to the ASU application on 18 February 2013. The matter was listed for hearing on 9 April 2013. Following the identification of a further outstanding issue, the matter was listed for further hearing on 17 May 2013.
[5] During the proceedings, Mr K. Harvey appeared for the ASU. Mr K. Godfrey appeared for Jobs Australia. Mr S. Forster appeared for the Australian Federation of Employers and Industry (AFEI). Ms S. Haynes appeared with permission for Australian Business Industrial (ABI). Mr N. Barkatsas appeared for the Victorian Employers’ Chamber of Commerce and Industry (VECCI). Mr P. Newall, of counsel, appeared with permission for the Aged and Community Services Association of NSW & ACT Inc and others, collectively referred to as the Aged Care Employers.
The Variations Sought
[6] The ASU seeks multiple variations to the SACS Award dealing with the following matters:
• Minimum engagement periods for part time employees;
• Part-time employment terms;
• Small business redundancy;
• Broken shifts;
• Weekend penalties for casual employees;
• Overtime rates;
• Public holiday pay for 7 day shiftworkers.
[7] I will explain the detail of each proposal when dealing with the matters separately below.
The Legislative Test
[8] Sch. 5, Item 6 of the Transitional Act provides:
“(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, FWA must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.
(2) In the review, FWA must consider whether the modern awards:
(a) achieve the modern awards objective; and
(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.
(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at the same time.
(3) FWA may make a determination varying any of the modern awards in any way that FWA considers appropriate to remedy any issues identified in the review.
(4) The modern awards objective applies to FWA making a variation under this item, and the minimum wages objective also applies if the variation relates to modern award minimum wages.
(5) FWA may advise persons or bodies about the review in any way FWA considers appropriate.
(6) Section 625 of the FW Act (which deals with delegation by the President of functions and powers of FWA) has effect as if subsection (2) of that section included a reference to FWA’s powers under subitem (5).”
[9] Further provisions of the Act are also applicable and relevant to the 2012 Review. Section 134 provides as follows:
“134 The modern awards objective
What is the modern awards objective?
(1) FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(b) the need to encourage collective bargaining; and
(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and
(e) the principle of equal remuneration for work of equal or comparable value; and
(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.”
[10] Section 284 provides as follows:
“284 The minimum wages objective
What is the minimum wages objective?
(1) FWA must establish and maintain a safety net of fair minimum wages, taking into account:
(a) the performance and competitiveness of the national economy, including productivity, business competitiveness and viability, inflation and employment growth; and
(b) promoting social inclusion through increased workforce participation; and
(c) relative living standards and the needs of the low paid; and
(d) the principle of equal remuneration for work of equal or comparable value; and
(e) providing a comprehensive range of fair minimum wages to junior employees, employees to whom training arrangements apply and employees with a disability.
This is the minimum wages objective.”
[11] A Full Bench has considered the proper approach to revisiting matters which were previously agitated under the Part 10A award modernisation process. It stated:
“[86] Although the Tribunal is not, as a non-judicial body, bound by principles of stare decisis, as a matter of policy and sound administration it has generally followed previous Full Bench decisions relating to the issue to be determined, in the absence of cogent reasons for not doing so. In another context three members of the High Court observed in Nguyen v Nguyen:
“When a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasion upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law: see Queensland v The Commonwealth (1977) 139 CLR 585 per Aickin J at 620 et seq.”
[87] While the Tribunal is not a court, the public interest considerations underlying these observations have been applied with similar, if not equal, force to appeal proceedings in the Tribunal. In Re Dalrymple Bay Coat Terminal Pty Ltd a Full Bench summarised the position in relation to single members sitting at first instance as follows:
“There is not a developed system of stare decisis in this jurisdiction. However it is clearly desirable for members of the Commission sitting alone to adhere to Full Bench decisions which are relevant to the matter being determined. Such a policy aids consistent decision making which in turn provides the parties to Commission proceedings with greater certainty.”
[88] These policy considerations tell strongly against the proposition that the Review constitutes a “fresh assessment” unencumbered by previous Tribunal authority.
[89] In circumstances where a party seeks a variation to a modern award in the Review and the substance of the variation sought has already been dealt with by the Tribunal in the Part 10A process, the applicant will have to show that there are cogent reasons for departing from the previous Full Bench decision, such as a significant change in circumstances, which warrant a different outcome.” 2
Evidence
[12] In the proceedings before me evidence was given by Lisa Darmanian, Sally McManus, Desmond Pumpa, Jennifer Grainger, Katherine Nelson, Katrine Hildyard, Patricia Branson and Elaine Brown for the ASU and Peter McCloskey, Damien Sloane and Louise Shields for the employers. That evidence concerned the operation of the current provisions on disability support, community services and aged care workers from their respective perspectives. I have found that evidence useful in considering the arguments advanced by the parties in relation to the particular changes sought to the award. The ASU also relied on an article published in the Journal of Industrial Relations by Sara Charlesworth and Alexandra Heron 3.
[13] I turn to consider the specific variations sought.
Part-time Employment
[14] The ASU proposes the insertion of two new sub-clauses in Clause 10.3 directed at different objectives. The current Clause 10.3 is set out below:
“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.”
[15] The ASU seeks the insertion of new clauses 10.3(c) and 10.3(d). The proposed clause 10.3(c) seeks the introduction of a minimum engagement period as follows:
“(c) Part-time employees will be paid a minimum of three hours at the appropriate rate, for each engagement.”
[16] The proposed clause 10.3(d) seeks the introduction of a requirement to agree on part-time engagement details, and to record them in writing, before commencing employment as follows:
“(d) Before commencing employment, the employer and the employee will agree in writing on a regular pattern of work including the number of hours to be worked each week, the days of the week the employee will work and the starting and finishing times each day. Any agreed variation to the regular pattern of work will be recorded in writing.”
[17] The ASU submits that the absence of a minimum engagement period for part-time employees is at odds with the minima provided for other employees under the Award and the critical mass of awards in existence prior to the making of the 2010 award.
[18] The employers submit that it cannot be said that the creation of a minimum engagement period for part-time employees is necessary to give effect to the modern awards objective. Reliance is placed on the absence of such provisions in many other modern awards. They contest the allegation that a minimum engagement period for part-timers was contained in a critical mass of superseded awards. The aged care employers point to the special needs of the home care disability sector where predecessor awards contained a one hour minimum engagement period.
[19] It is clear that in common with many other awards, the AIRC deliberately did not insert a minimum engagement period for part-timers in this award. It was obviously influenced by the variable position under predecessor awards. In my view the introduction of a minimum engagement period for part-time employees as part of this review would require a strong case that evaluated the impacts on employees and employers across the various sectors covered by the award. The application fails to meet this standard.
[20] That part of the application seeking a requirement that part-time arrangements be agreed in writing prior to commencing employment is a common award provision. It requires employees to be given clear information as to the basis of their employment when they are engaged. I consider that the case for such a clause is strong, especially when there is no award minimum engagement period. In my view the concerns of the employers can be allayed by standard procedures that comply with the clause, such as those that have been developed for employers covered by similar provisions in other awards. I will make this change prospective to allow employers to prepare for the change. If significant practical problems emerge an appropriate variation can be sought. I will insert the clause sought by the ASU with effect from 1 August 2013.
Small Business Redundancy
[21] The ASU seeks to vary Clause 12 of the SACS Award, which deals with small business redundancy. The proposed variation seeks to extend the scope of the current clause which is confined to employees who perform work previously covered by the Social and Community Services - Western Australia Award 2002 so that it reads as follows:
“12.7 Small Employers
(a) For the purposes of Clause 33.1(b), small employer means an employer to whom Subdivision B of Division 11 of the NES does not apply because of the provisions of s.121(1)(b) of the NES.
(b) Despite the terms of s.121(1)(b) of the Act and subject to Clause 33.1(b), the remaining provisions of Subdivisions B and C of Division 11 of the NES apply in relation to an employee who performs any of the work within the Social, Community, Home Care and Disability Services Industry Award 2010 which immediately prior to 1 January 2010 was in:
(i) Clauses 5 and 14 of the Social and Community Services - Western Australia Award 2002, or
(ii) the Social and Community Services(ACT) Award 2001, or
(iii) the Social and Community Services (Queensland) Award 2001, or
(iv) the Crisis Assistance Supported Housing (Queensland) Award 1999, or
(v) the Crisis Assistance, Supported Housing (South Australia) Award 2000,
except that the amount of redundancy pay to which an employee is entitled must be calculated according must be calculated in accordance with the following table:
Employee’s period of continuous service with the employer on termination |
Redundancy pay period |
Less than 1 year |
Nil |
At least 1 year but less than 2 years |
4 weeks pay |
At least 2 years but less than 3 years |
6 weeks pay |
At least 3 years but less than 4 years |
7 weeks pay |
At least 4 years and over |
8 weeks pay |
(c) Clause 12.7 ceases to operate on 31 December 2014.”
[22] This application was amended during the course of the proceedings so that the extension of the clause is confined to employees in precisely the same position as those covered by the clause previously. The ASU relies on the statement by the Full bench in the 2008 Award Modernisation decision that an exception to the retention of the small business exemption where there was no small business exemption prior to the 2004 Redundancy Case 4. In this regard the ASU relies on the absence of the clause in the exposure draft and infers that the clause did not pick up employees covered by all awards where there was no existing exemption.
[23] I am satisfied that there is a case for including each of the awards in the amended application because the circumstances of each of those awards are the same as the award that is currently mentioned in the clause. I will vary the Award in the manner sought in the amended application.
Broken Shifts
[24] The ASU seeks to vary Clause 25.6 to remove the availability of broken shifts in the disability services sector. The relevant portion of Clause 25.6 which the ASU seeks to vary currently reads:
“25.6 Broken shifts
This clause only applies to social and community services employees when undertaking disability services work and home care employees.
...”
[25] The proposed variation to this clause would change the opening of Clause 25.6 to state:
“This clause only applies to home care employees.”
[26] In the alternative the ASU seeks the introduction of a broken shift allowance.
[27] The ASU contends that the extension of broken shifts to parts of the disability sector that previously did not permit such arrangements has had a significant impact on the work practices of many employees, who may be required to work over a period of twelve hours with an extended break during the shift. Some of the evidence in the proceedings suggested that some employers are not complying with the Award provisions.
[28] The changes are strongly opposed by the employers. They point to the long standing availability of broken shifts in some areas covered by the award and the impact of removing that flexibility for those operations. They submit that award compliance is irrelevant. Further they submit that payment issues were considered and dealt with by way of a consent variation in 2012.
[29] As with many other modern awards, this Award replaced a large number of other awards that applied in different states or parts of the social and community services sector. In creating a single award for the sector the AIRC had regard to the various provisions that applied under those previous instruments and applied the statutory tests applicable to the award modernisation exercise. The retention of arrangements for some became a change for others not covered by provisions of a particular type. It is understandable therefore that the change presents some difficulties. It is also understandable that a reversal of the situation would present difficulties for others. That is particularly so when one considers the blurring of home care and disability services in practice. I do not consider that a case has been made out to modify the existing arrangements. The variations to the Award in 2012 also deal with the position of penalties for broken shifts. No case for a further change has been made out.
Weekend Penalties for Casual Employees
[30] The ASU seeks the removal of the current Clause 26.2, which deals with casual penalty rates on weekends. Clause 26.2 provides:
“26.2 Casual employees who work less than 38 hours per week will not be entitled to payment in addition to any casual loading in respect of their employment between midnight on Friday and midnight on Sunday.”
[31] The ASU submits that this provision has only recently become relevant because of the operation of the transitional provisions; it is an anomaly because it did not reflect the position in any previous award and it has its genesis in a draft provided by Jobs Australia with no explanation by the AIRC for its adoption.
[32] These submissions are contested by some employers who point to the history in some awards of weekend penalties in lieu of casual loadings for casual employees working on weekends. Jobs Australia submits that the provision was in the exposure draft of the award but concedes that the identical award provision in the Aged Care Award was subsequently amended to provide for a loading for weekend work performed by casuals.
[33] I consider that the history of this provision indicates that it has not been subject to extensive submissions and consideration previously. I also consider that the approach taken by the Full Bench in modifying an identical provision in the aged care sector has much to commend it. It provided for the reverse of the current provision - the payment of penalties but no loading instead of loading and no penalties 5. I will adopt a similar approach for this award. I direct the ASU to prepare a draft variation. It will apply from 1 August 2013.
Overtime Rates
[34] The ASU proposes the removal of the differentials for overtime between full time, part-time and casual employees by the deletion of the current Clause 28.1, and its replacement with the following clause:
“28.1 Overtime rates
Employees will be paid the following payments for all work done in addition to their rostered ordinary hours on any day prescribed in Clause 25:
(a) disability services, home care and day care employees - for all authorised overtime on Monday to Saturday, payment will be made at the rate of time and a half for the first two hours and double time thereafter;
(b) social and community services and crisis accommodation employees - for all authorised overtime on Monday to Saturday, payment will be made at the rate of time and a half for the first three hours and double time thereafter;
(c) for all authorised overtime on a Sunday, payment will be made at the rate of double time;
(d) for all authorised overtime on a public holiday, payment will be made at the rate of double time and a half; and
(e) overtime rates under this clause will be in substitution for, and not cumulative upon, the shift premiums prescribed in Clause 29 - Shiftwork and Saturday and Sunday work premiums prescribed in Clause 26 - Saturday and Sunday work.
[35] The ASU submits that the existing limitation of overtime provisions to full time employees is anomalous. It is related to the previous issue. The employers contest that the provision is truly anomalous.
[36] As I have determined that the approach of the Full Bench stated above in relation to casuals working on weekends should be adopted I will make variations to reflect this position but otherwise not vary the overtime clause.
Public Holiday Pay for Seven Day Shiftworkers
[37] This matter was remitted to me by the Full Bench dealing with public holiday changes to modern awards.
[38] The ASU seeks to vary Clause 34.3 of the Award to provide payment for shiftworkers for public holidays which fall on rostered days off. The proposed variation reads:
“34.3 Seven-day shifts
If a public Holiday falls between Monday and Friday inclusive:
(a) A full-time 7 day week employee, who does not work on any public holiday because it is a rostered day off, will receive an extra 7 hours 36 minutes pay in respect of such day.
(b) A part-time 7 day week employee, who does not work on any public holiday because it is a rostered day off, will receive an extra days’ pay in respect of such day provided that such payment does not exceed 7 hours 36 minutes pay.”
[39] The ASU submits that shift workers not working on a public holiday because it was their RDO, were either traditionally entitled to an extra day’s pay or RDOs were not rostered on public holidays. It submits that the entitlement in question applied under a majority of predecessor awards in the social and community services sector and covered a critical mass of employees.
[40] The claim is opposed by the employers who submit that the arguments of the ASU do not amount to a merit case and the Full Bench effectively dismissed the same concept in the other awards dealt with by them.
[41] The Full bench in the Public Holidays case 6 said the following in relation to the general ACTU claim:
“[66] While this aspect of the ACTU’s claim is not without merit it does constitute a substantial variation of the award safety net and in our view is more appropriately dealt with in the 4 yearly review of modern awards provided for in s.156 of the FW Act. The Transitional Review is quite separate from, and narrower in scope than, the 4 yearly reviews. As the June 2012 Full Bench observed:
“[91] It is important to recognise that we are dealing with a system in transition. Item 6 of Schedule 5 forms part of transitional legislation which is intended to facilitate the movement from the WR Act to the FW Act. The Review is a “one off” process required by the transitional provisions and is being conducted a relatively short time after the completion of the award modernisation process. The transitional arrangements in modern awards continue to operate until 1 July 2014. The fact that the transition to modern awards is still occurring militates against the adoption of broad changes to modern awards as part of the Review. Such changes are more appropriately dealt with in the 4 year review, after the transition process has completed. In this context it is particularly relevant to note that s.134(1)(g) of the modern awards objective requires the Tribunal to take into account:
“the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia . . .”
[67] On the material before us there is insufficient information to adequately assess the impact of the proposed change. The same may be said of the ACTU’s proposed model clause as a concept. Further, we consider that the practical operation of the proposed model provision to different patterns of employment as provided in some of the modern awards is uncertain and may well create unintended consequences.
[68] We have concluded that this element should not be adopted as a model provision or included in the named awards as part of this Transitional Review.”
[42] In relation to the specific application of the ASU in relation to this award it said:
“[195] This is directly related to the ACTU RDO model test case proposal, albeit that unlike other individual union applications, it is directed to a specific group of employees. The ASU contended that the SACS award was not meeting the modern awards objective without this provision and that the critical mass of awards applying in the industry prior to the award modernisation process contained similar entitlements.
[196] Given our views about the ACTU claim, we are not inclined to grant this application. However, there are no submissions from the employers dealing directly with this aspect of the matter in this award.
[197] In these circumstances, we will remit the matter to Vice President Watson, who is dealing with applications concerning this award more generally, for determination in light of our decision.”
[43] I do not consider that the ASU has made out a case for the variation. In my view the matter should be dealt with in the same manner as other awards dealt with by the Full Bench. I dismiss the ASU application in this regard.
Conclusions
[44] For the above reasons I will make the variations sought to clause 12.7. A new sub-clause 10.3(c) will be inserted in the form set out as clause 10.3(d) in the ASU’s amended application. The ASU is directed to provide a draft variation with respect to weekend penalties for casuals. I will issue a determination covering all variations set out above when the weekend penalties for casuals clause is settled. The operative date for all variations will be 1 August 2013.
VICE PRESIDENT WATSON
Appearances:
Mr K. Harvey for the Australian Municipal, Administrative, Clerical and Services Union
Mr K. Godfrey for Jobs Australia.
Mr S. Forster for the Australian Federation of Employers and Industry.
Ms S. Haynes for Australian Business Industrial.
Mr N. Barkatsas appeared for the Victorian Employers’ Chamber of Commerce and Industry.
Mr P. Newall, of counsel, for the Aged and Community Services Association of NSW & ACT Inc and others.
Hearing details:
2013.
Melbourne.
April 9.
May 17.
3 Sara Charlesworth and Alexandra Heron, ‘New Australian Working Time Minimum Standards: Reproducing the Same Old Gendered Architecture?’ (2012) 54 Journal of Industrial Relations 164.
4 [2008] AIRCFB 1000 at [60].
5 [2010] FWAFB 2026 at [50] - [59].
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