| FWC 3249|
|FAIR WORK COMMISSION|
Fair Work Act 2009
s.157 - Application to vary or revoke a modern award
Aged Care Award 2010
(AM2020/99, AM2021/63 and AM2021/65)
Aged care industry
JUSTICE ROSS, PRESIDENT
MELBOURNE, 7 JUNE 2021
Applications to vary modern awards – work value – Aged Care Award 2010 – Nurses Award 2010 – Social, Community, Home Care and Disability Services Industry Award 2010 – mention listed – joinder of applications – future programming.
 On 12 November 2020, the Health Services Union of Australia (HSU) made an application to vary the Aged Care Award 2010 (Aged Care Award). This application was given the matter number AM2020/99.
 On 18 December 2020, directions for the filing of submissions and evidence were published. The directions were:
1. The Applicants and other union parties to file evidence and submissions by 4pm on Thursday 1 April 2021.
2. Employers and Employer Associations to file evidence and submissions by 4pm on Monday 16 August 2021.
3. The matter will be listed for Mention at 9:30am on Monday 23 August 2021. The purpose of the Mention is to discuss witness scheduling and which witnesses will be called for cross-examination.
4. The Applicants and other union parties to file evidence and submissions in reply by 4pm on Monday 18 October 2021.
5. Submissions to be filed in both Word and PDF formats to email@example.com.
6. The parties are granted liberty to apply to vary the above directions.
 On 13 January 2021, parties were notified that 10 to 26 November 2021 have been provisionally reserved for hearings of the evidence in relation to the claim.
 On 16 March 2021, the Australian Nursing and Midwifery Federation (ANMF) wrote to the Commission foreshadowing an application in relation to the Nurses Award 2010 (Nurses Award) and seeking to vary the directions issued on 18 December 2020. The ANMF filed proposed directions on 24 March 2021.
 A directions hearing was listed on 26 March 2021 to discuss the proposed directions filed by ANMF. The ANMF sought to have the directions of 18 December 2020 set aside and replaced with the following directions:
1. The ANMF will file an application to vary the Nurses Award 2010 and the UWU will file an application to vary the Social, Community, Home Care and Disability Services Industry Award 2010 by 4pm on Monday 17 May 2021.
2. The ANMF will file any agreed position involving union parties, employers and/or the Australian Government in relation to proposed variations to the Aged Care Award 2010, the Social, Community, Home Care and Disability Services Industry Award 2010 and the Nurses Award 2010, as recommended by the Royal Commission into Aged Care Quality and Safety, by 4pm on Friday 11 June 2021.
3. The applications to vary the Aged Care Award 2010 (AM2020/99), the Nurses Award 2010 and the Social, Community, Home Care and Disability Services Industry Award 2010 will be listed for Mention on a date to be fixed on or after Friday 25 June 2021.
 This position was supported by the United Workers Union (UWU). The UWU also foreshadowed an application to vary the Social, Community, Home Care and Disability Services Industry Award 2010 (the SCHADS Award). The proposed variation to the directions was opposed by the HSU.
 At the conclusion of the directions hearing, I noted that I was not prepared to vacate the directions at that time but that I would call the matter on for further mention when the foreshadowed applications were filed.
 At the directions hearing, there was also some discussion about whether the foreshadowed applications should be joined with the HSU application. The ANMF submitted that there will be a significant overlap in the evidence that will be before the Commission in the three applications.
 On 1 April 2021, the HSU filed its submission and witness statements in accordance with the 18 December 2020 directions. Further witness statements were filed on 26 April 2021 and 23 April 2021. The ANMF and the UWU also filed submissions and evidence.
 On 17 May 2021, the ANMF made an application (the ANMF application) to vary the Aged Care Award and the Nurses Award pursuant to s.157 of the Fair Work Act 2009 (Cth) (the Act). This application was given the matter number AM2021/63.
 The ANMF application seeks the following variations to the Aged Care Award and the Nurses Award:
(1) the amendment of the Nurses Award by inserting a new schedule, applicable to aged care workers only and expiring after four years, which increases rates of pay by 25 per cent; and
(2) the amendment of the Aged Care Award by removing Personal Care Workers (“PCWs”) from the mainstream of “aged care employee” in Schedule B, and creating a new classification structure for them—and increasing their rates of pay by 25 per cent.
 The proposed variations are said to give effect to Recommendation 84 of the Royal Commission into Aged Care Quality and Safety, Final Report: Care, Dignity and Respect (the Royal Commission Report). Recommendation 84 is set out below:
‘Employee organisations entitled to represent the industrial interests of aged care employees covered by the Aged Care Award 2010, the Social, Community, Home Care and Disability Services Industry Award 2010 and the Nurses Award 2010 should collaborate with the Australian Government and employers and apply to vary wage rates in those awards to:
a. reflect the work value of aged care employees in accordance with section 158 of the Fair Work Act 2009 (Cth), and/or
b. seek to ensure equal remuneration for men and women workers for work of equal or comparable value in accordance with section 302 of the Fair Work Act 2009 (Cth).’
 On 31 May 2021, the HSU made an application to vary the SCHADS Award. This application was given the matter number AM2021/65. The application also seeks to give effect to Recommendation 84 of the Report by inserting a new clause 17A–Minimum weekly wages for home aged care employees. The new clause seeks to provide a 25% increase in wages for home aged care employees at all classification levels in Schedule E of the Award. On 1 June 2021, the UWU wrote to the Commission confirming that, in the circumstances, it would not be making a separate application to vary the SCHADS Award
 The Australian Government has now released its response to the Royal Commission Report. The response to recommendation 84 is set out below:
‘The Government notes this matter is currently being considered by the Fair Work Commission (FWC). The Health Services Union has made claims to the FWC for increased wages for aged care workers covered by the Aged Care Award 2010. Decisions made by the FWC are independent of Government. The Government will provide information and data to the FWC as required.’
 The applications will now be listed for conference before Commissioner O’Neill on Thursday 24 June 2021. A notice of listing will be issued shortly. The purpose of the conference will be to discuss the following matters:
1. Whether the 3 applications (AM2020/99, AM2021/63 and AM2021/65) should be joined and heard together.
2. Future programming.
3. Any information or data that might be requested from the Government in these matters.
 The ANMF, HSU and UWU are directed to confer prior to the conference and the HSU and ANMF are directed to file proposed directions by no later than 4pm on Tuesday 22 June 2021.
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