[2021] FWCFB 3232


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 Award 2010



4 yearly review of modern awards – Social, Community, Home Care and Disability Services Industry Award 2010.

[1] On 4 May 2021, the Commission issued a decision in respect of the Social, Community, Home Care and Disability Services Industry Award 2010 (the Decision). 1 A Summary of the decision was also published.

[2] A copy of the draft determination giving effect to the decision and provisional views of the Full Bench was set out in the Summary.

[3] At [1288]-[1293] of the Decision the Full Bench set out directions:

‘Interested parties are to file any submissions and evidence in respect of the draft variation determination at Attachment P and our provisional views referred to above by 4.00pm (AEST) Tuesday, 22 June 2021.

Such submissions should also address the operative date of the proposed variations. Our provisional view is that an operative date of 1 October 2021 is appropriate.

All submissions must be sent by email in both PDF and word formats to amod@fwc.gov.au.

A Conference will be convened on Thursday, 27 May 2021 at 10:30am (AEST) to discuss each of:

● the travel time claim

● remote response/recall to work, and

● clothing and equipment claims.

A Hearing will be listed on Wednesday, 30 June 2021. At this Hearing, interested parties will be provided with an opportunity to make oral submissions in response to the submissions and evidence received relating to the draft determination and the provisional views referred to above.

Notices of Listing for the Conferences and Hearings will be issued shortly.’

[4] On 3 June 2021 we received correspondence from Ai Group on behalf of the Australian Federation of Employers and Industries, Australian Business Industrial, Business NSW (formerly the NSW Business Chamber), Aged and Community Services Australia and Leading Age Services Australia (collectively the Joint Employers) seeking variations to the directions as follows:

  The direction requiring the filing of materials by 4pm on 22 June 2021 be varied such that parties are not required to do so until 17 August 2021.

  The hearing listed on 30 June 2021 be vacated and relisted on a date that follows the filing of the aforementioned materials.

[5] In support of the revised timeframe, the Joint Employers submit:

(a) The number, nature and extent of the variations proposed to be made to the Award. The Associations’ discussions with their members to date suggest that the proposed changes, individually and cumulatively, will have a profound impact on many employers covered by the Award because they significantly change fundamental aspects of their operations. The Associations have variously been informed by some of their members that at least in the absence of changes to government funding, the proposed changes will require major changes to their service delivery model. There are also clear financial implications that members are still working through, in an environment where many service providers are already operating at a deficit.

(b) As mentioned above, many employers with whom the Associations have engaged are continuing to assess the impact that the Decision will have on their operations. Until they have had an opportunity to complete this process, they have indicated that they will not be in a position to provide further feedback, which might then inform the position that is ultimately advanced by the Associations in these proceedings.

(c) As a consequence, the Associations’ consultation process with their members is at a relatively early stage. The Associations seek additional time to file their material, in part, to ensure that the material ultimately advanced properly reflects the position and concerns of their members.

(d) Notwithstanding this, the Associations anticipate that they will seek to file detailed submissions and some evidence in relation to the relevant matters in issue and in particular, regarding the proposed operative date. The Associations are actively working with their members to understand the nature of the evidence that they might be able to provide to the Commission. However, for the reasons articulated at paragraph (b) above, a further period of time is required to enable a proper assessment of what evidence might be able to be called. In addition, the Associations have sought to ensure that the proposed timetable contemplates a sufficient period of time for the development of submissions and evidence that are of assistance to the Commission.

(e) The Associations are concurrently endeavouring to advance discussions amongst the parties concerning the matters that were the subject of a conference before the Commission on 27 May 2021. The outcome of those discussions may have some bearing on the materials that they seek to advance in relation to the provisional views expressed by the Commission in relation to the relevant claims.

(f) Some of the Associations are concurrently involved in other award proceedings before the Commission including, most notably, the ‘Casual Award Terms Review 2021’, in which the parties are required to file submissions in reply on 16 June 2021. Further, the matter has been listed for a hearing on 24 – 25 June 2021. Some are also involved in the three work value applications relating to the aged care sector which are currently before the Commission.

(g) The matters described at paragraphs (e) and (f) above are necessarily limiting the extent to which the relevant Associations are presently able to devote their resources to this matter. We note though that, even absent the conduct of such proceedings, the Associations would seek the proposed variation to the current directions

[6] The application for an adjournment was published on Thursday 3 June 2021 and a subscriber email was sent. Any interested party opposing the proposed variation was to file any submissions by 4.00pm (AEST), Friday 4 June 2021. Submissions were received from the following parties:

  The National Disability Service (NDS)

  Joint Unions (ASU, HSU and UWU)

[7] NDS supports the variation to the directions sought by the Joint Employers and the reasons they advance in support of the extension of time.

[8] The ASU, HSU and ASU (the Joint Unions) oppose the Joint Employers’ request to vary the directions, noting that:

  the matter has been proceeding for some time;

  the 4 May 2021 decision expresses a concluded view over many of the remaining claims and the matters about which the Commission has invited a further response are of relatively short compass;

  the current 7 week period in which to file further material in relation to a relatively short list of issues provides ‘ample time’; and

  the expressed concern of the Joint Employers in relation to the implementation date and Government funding will not be altered or resolved by providing a further 2 months.

[9] We have decided to grant an extension but not of the duration proposed by the Joint Employers. The directions are varied as follows:

1. Interested parties are to file any submissions and evidence in respect of the draft variation determination and our provisional views by 4.00pm (AEST) on Monday 19 July 2021.

2. A Hearing will be listed on 26 and 27 July 2021.

[10] We note that the Decision was published on 4 May 2021 and that the revised timetable means that interested parties will have had about 11 weeks to prepare and file any submissions and evidence in respect of the draft determination and the provisional views expressed in our decision. In our view, the revised time period provides all interested parties with a reasonable opportunity to file submissions and evidence in respect of the draft variation determination and the provisional views express in our decision of 4 May 2021.

[11] Submissions are to be filed in both Word and PDF formats to amod@fwc.gov.au.


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 1   [2021] FWCFB 2383.