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
(AM2018/26 & AM2020/100)

4 yearly review of modern awards – award stage – group 4 awards – substantive issues – Social, Community, Home Care and Disability Services Industry Award 2010

ABBREVIATIONS

1. Background

[1] On 4 May 2021 we issued a decision 1 in relation to the Tranche 2 claims in the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) (the May 2021 Decision) in which we rejected a number of claims,2 decided to make a number of variations to the SCHADS Award and expressed some provisional views in respect of certain issues. This decision is to be read in conjunction with the May 2021 Decision.

[2] Interested parties were initially directed to file any submissions and evidence in respect of our provisional views and the draft determination by 4.00pm (AEST) on Tuesday 27 July 2021. These directions were subsequently varied on a number of occasions and the timeline extended, at the request of various parties. Ultimately, any submissions and evidence were to be filed by no later than 4.00pm (AEST) on Tuesday 3 August 2021.

[3] On 3 August 2021 the Commission issued a Statement 3 in which it agreed to a request from a number of employer and union parties to amend the directions so that the issues relating to remote response and damaged clothing would be dealt with separately from those that were to be the subject of the hearing on 6 August 2021. The conference in respect of remote response and damaged clothing took place at 9.30am (AEST) on Thursday 19 August 2021 before Deputy President Clancy.

[4] Submissions have been received in respect of the remaining provisional views and draft determination from the following interested parties:

•  Australian Services Union (ASU)

•  United Workers’ Union (UWU)

•  Australian Industry Group (Ai Group)

•  National Disability Services (NDS)

•  Australian Federation of Employers and Industries (AFEI)

•  Australian Business Industrial (ABI)

•  Health Services Union (HSU)

•  Australian Unity

•  Australian Community Industry Alliance

•  Home Care Assistance

•  Includa

•  Fighting Chance Australia

•  ZestCare

•  HireUp

•  Australian Association of Private Nursing Services

[5] On 5 August 2021, the Commission issued a document summarising the submissions received. No party took issue with the summary. 4 We have taken all of the submissions into account but, save for our consideration of the principal arguments advanced, we do not restate the submissions in our decision.

[6] Witness Statements were filed by Ai Group and AFEI:

Ai Group

•  Aleysia Leonard (National Human Resources Business Partner, at Programmed Health Professionals Pty Ltd)

•  Christopher Chippendale (Executive Lead Disability Engagement, at Life Without Barriers)

•  Christopher Nillsen (Project Manager – Shared Services, at Life Without Barriers)

•  Craig MacArthur (National Finance Lead – Aged Care, at Life Without Barriers)

•  Richard Cabrita (Operations Manager – ACT, at Life Without Barriers)

AFEI

•  Kylie Lambert (Director and Co-Founder of Daughterly Care Community Services Limited).

[7] Ai Group filed a supplementary submission on 5 August 2021, which included an amended witness statement of Aleysia Leonard.

[8] A confidentiality order was issued in respect of aspects of the witness statements of Christopher Nillsen, Christopher Chippendale, Craig MacArthur, Richard Cabrita and Aleysia Leonard.

[9] The matter was listed for Hearing on Friday, 6 August 2021 at 9:30am. The transcript of the hearing is available here.

2. This Decision

[10] During the course of the proceedings on 6 August 2021, a broad consensus emerged that aspects of the broken shift issue should not be determined to finality on that day.

[11] In a Statement 5 published on 9 August 2021 (9 August 2021 Statement), we decided that the following matters in respect of the broken shift issue will 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. 6 The ASU has filed a draft determination in respect of this issue.

[12] In the 9 August 2021 Statement we issued directions that any submissions and evidence in respect of remote response, damaged clothing and the particular issues set out in [11] above were to be filed by no later than 4.00pm (AEST) on Wednesday, 25 August 2021. Any submissions and evidence in reply are to be filed by no later than 4.00pm (AEST) on Monday 30 August 2021.

[13] The hearing in respect of these remaining matters will take place at 9:30am (AEST) on Wednesday 1 September 2021.

[14] Save for the matters which are the subject of the hearing on 1 September 2021, and the transitional arrangements applying to minimum payments for part-time employees, this decision finalises the provisional views expressed in the May 2021 Decision and the terms of the variation determination arising from that decision.

[15] In the next 5 sections of our decision, we set out our reasons for deciding to vary the SCHADS Award in the following ways:

Broken shifts

1. We confirm our provisional view that the additional remuneration for working a broken shift should be expressed as a percentage of the standard rate.

2. Two technical amendments are made in respect of the requirement that an employee’s consent be given on each occasion that they work a 2 break broken shift:

•  To provide that if a part-time employment agreement under clause 10.3 includes the working of a 2 break broken shift then there is no need for an additional requirement that consent be obtained on each occasion that the 2 break broken shift is worked.

•  To delete the reference to ‘rostered to work’ in clause 25.6(b) as it may have the unintended consequence of requiring that an employee’s consent to work a 2 break broken shift be given at least 2 weeks before the shift is worked.

Minimum payments

3. The determination arising from our decision will include a transitional arrangement applying to minimum payments for part-time employees. The particular characteristics of the transitional arrangement are the subject of a provisional view to which we shall return shortly.

Roster changes

4. Clause 25.5(d)(ii) will be varied as follows:

‘(ii) However, a roster may be changed at any time:

(A) (A) if the change is proposed by an employee to accommodate an agreed shift swap with another employee, subject to the agreement of the employer; or

(B) to enable the service of the organisation to be carried on where another employee is absent from duty on account of illness, or in an emergency.’

Client cancellation

5. Clause 25.5(f)(i) will be amended as follows:

‘Clause 25.5(f) applies where a client cancels or changes a scheduled home care or disability service, within 7 days of the scheduled service, which a full-time or part-time employee was rostered to provide. For the purposes of clause 25.5(f), a client cancellation includes where a client reschedules a scheduled home care or disability service.’

6. Clauses 25.5(f)(ii)(B), (iv)(A), (v) and (vii)(C) from the draft determination have been amended such that they refer to ‘part of a shift’ or to a ‘service’, rather than to just a ‘shift’.

7. Clause 25.5(f)(vi) – dealing with ‘double dipping’ – is to be deleted from the draft determination.

9. The requirement to publish make-up time on a normal roster will be removed and will be replaced by a requirement to provide the employee with 7 days’ notice of the make-up time (or a lesser period by agreement).

10. An additional term will be added to subclause 25.5(f)(vi) as follows:

‘(E) an employee who works make-up time will be paid the amount payable had the employee performed the cancelled service or the amount payable in respect of the work actually performed, whichever is the greater.’

Travel time

11. Further consideration of the various travel time claims will be deferred until the variations in respect of minimum payment and broken shifts have been in operation for 12 months.

Overtime

12. We confirm our provisional view that overtime is payable in respect of work performed by day workers outside the ordinary span of hours. Clause 28.1(a) of the draft determination will be amended slightly, as follows:

‘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)(day workers only):’

13. We confirm our provisional view that, in respect of part-time employees, the SCHADS Award should be varied in 2 respects:

1. To make it clear that working additional hours is voluntary, and

2. To introduce a mechanism whereby a part-time employee who regularly works additional hours may request that their guaranteed hours be reviewed and increased, and their employer cannot unreasonably refuse such a request.

14. The following amendments will be made to clause 10.3(g)–Review of guaranteed hours in the draft determination:

•  Clause 10.3(g)(i) will be amended as follows:

‘(i) Where a part-time employee has regularly worked more than their guaranteed hours for at least 12 months, the employee may request in writing that the employer vary the agreement made under clause 10.3(c), or as subsequently varied under clause 10.3(e), to reflect the ordinary hours regularly being worked increase their guaranteed hours…’

•  The example below clause 10.3(g)(iii) will be deleted.

•  A new clause 10.3(g)(viii) will be inserted as follows:

‘(viii) An employee cannot make a request for a review of their guaranteed hours when:

(A) The employee has refused a previous offer to increase their guaranteed hours in the last 6 months; or

(B) The employer refused a request from the employee to increase their guaranteed hours based on reasonable business grounds in the last 6 months.’

24 Hour Care clause

15. Clause 31.2(b) of the draft determination, in relation to quantum of leave, will be amended to limit the provision of the additional week of annual leave to employees who have worked at least eight 24-hour care shifts ‘during the yearly period in respect of which their annual leave accrues.’

Equal remuneration

16. A minor amendment will be made to the headings of the table in the Note at the end of clause 15.

Operative date

17. The variations arising from these proceedings will commence operation from the first pay period on or after 1 July 2022.

[16] These matters set out above have now been decided.

[17] The only outstanding matter arising from this decision concerns our provisional view regarding the particular characteristics of the transitional arrangement which will apply to minimum payments for part-time employees. It is our provisional view that the transitional arrangement should have the following characteristics:

1. Limited scope:

(a) it only applies to part-time employment arrangements which:

(i) were entered into before 1 March 2022; and

(ii) provide for a period of continuous work of less than 3 hours for social and community services employees (except when undertaking disability services work) and 2 hours for all other employees(and therefore are affected by the variation).

2. It imposes an obligation to consult and negotiate in good faith regarding changes to the agreed pattern of work.

3. If no agreement is reached, then the employer can unilaterally alter the agreed pattern of work to provide for periods of continuous work of 3 or 2 hours (depending on the nature of the work performed), with 28 days’ notice in writing.

4. Any unilateral alteration to the agreed pattern of work cannot come into operation before 1 July 2022 (the implementation date of the minimum payment term).

5. The transitional arrangements will come into operation on 1 March 2022 and cease operation (and be removed from the Award) on 1 October 2022.

[18] A draft term which gives effect to our provisional view is set out at [130].

[19] It is convenient to deal with the issues thematically, beginning with those issues which relate to working arrangements.

3. Working Arrangements

[20] This section deals with outstanding issues in relation to:

•  broken shifts

•  minimum payments

•  variations to rosters

•  client cancellations, and

•  travel time.

[21] These matters all relate to the scheduling of work in the SCHADS industry and are interconnected.

[22] In the May 2021 Decision, we made the following findings about working arrangements generally in the SCHADS sector 7:

1. Short shifts or engagements are a very common feature in the home care and disability services sectors. Some employees are engaged for only 30 minutes and in some instances for only 15 minutes.

2. Broken shifts are commonly utilised by employers covered by the SCHADS Award and there is a very high incidence of broken shifts in the home care and disability services sectors.

3. The length of an engagement that forms part of a broken shift can vary from 15 minutes to 7 hours and there is significant variation in the duration of the break period.

4. Most employees are not paid for time spent travelling to and from clients, (which includes travelling between clients and travelling to the first client and from the last client).

5. The combination of unpaid travel time, broken shifts and short engagements can result in a significant amount of ‘dead time’ for employees, that is, time spent travelling without payment or time spent waiting between broken shifts.

6. Employees report a range of adverse consequences with working broken shifts with short engagements and unpaid travel time, in particular:

•  they interfere with the employee’s time with family and friends, with their hobbies or with their involvement in the community

•  broken shifts and short engagements mean a longer span of hours to make the same money they would make if they were rostered continuously. The span of hours may be 12 hours, but the employee is only paid for 4 to 5 hours work; this can be very tiring

•  short engagements are not worth the time and cost involved

•  home care employees can be required to travel significant distances, the travel time is unpaid, and it is uneconomical to work, and

•  broken shifts can be ‘very disruptive’; an employee may ‘need to sit around for 2-3 hours waiting for a shift to start that only lasts for 15 minutes’.

3.1 Broken shifts

3.1.1 Background

[23] 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.’

[24] In the May 2021 Decision, we made a finding that broken shifts are commonly utilised by employers covered by the SCHADS Award and there is a very high incidence of broken shifts in the home care and disability services sectors. In addition to that finding, we made the following findings in respect of broken shifts: 8

1. It is the preferred practice of some employers to roster on the basis that there is only 1 break in any shift (unexpected client cancellation being the main reason to depart from this practice). Further, it is the practice of some employers to pay a broken shift allowance; other employers only have employees work a broken shift by agreement.

2. Most broken shifts involve 2 portions of work and 1 break. Occasionally broken shifts involve more than 1 break.

3. Broken shifts can cover a significant span of hours (up to 12 hours) which can include a substantial amount of ‘unpaid time’.

4. Where broken shifts are worked, there is significant variation in the duration of the break period. Some broken shifts involve a break period of less than 1 hour, while other broken shifts involve a break period of 6-8 hours.

5. During breaks in a broken shift, employees sometimes spend time at home or undertaking non-work related activities. On other occasions a considerable proportion of the period of the break is used in undertaking unpaid travel or the duration of the break is insufficient to enable the employee to engage in other meaningful activity.

6. Employees report a range of adverse consequences with working broken shifts with short engagements and unpaid travel time.

[25] In section 5.3 of the May 2021 Decision, we set out our reasons for deciding to vary clause 25.6 of the SCHADS Award in order to: 9

•  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.

[26] We dealt with the s.134 considerations at [493] to [503] of the May 2021 Decision and at [504] concluded as follows:

‘The modern awards objective is to ‘ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions’, taking into account the particular considerations identified in ss.134(1)(a)–(h) of the Act. We have taken into account those considerations insofar as they are presently relevant and have decided to vary the SCHADS Award as proposed at [488] above.’

[27] This aspect of the May 2021 Decision is given effect in Item 11 of the draft determination, as follows:

‘By deleting clause 25.6 and inserting the 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 be rostered to 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 on each occasion that the employee will be rostered to work a broken shift with 2 unpaid breaks.

(iii) An employee rostered to work 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.’

[28] We also expressed the following provisional views: 10

1. The additional remuneration for working a broken shift under clause 25.6 of the SCHADS Award should be an allowance calculated as a percentage of the standard weekly rate.

2. An employee working a ‘1 break’ broken shift under clause 25.6 should receive a broken shift allowance of 1.7% of the standard rate, per broken shift.

3. The broken shift allowance payable for a ‘2 break’ broken shift should be set at 2.5% of the standard rate.

4. An employee who is a day worker performing work outside of the ordinary span of hours (including as part of a period of work in a broken shift) is entitled to overtime for such work.

[29] It is common ground that the additional remuneration for working a broken shift should be expressed as a percentage of the standard rate. On that basis we confirm provisional view 1 above and need say no more about that matter.

[30] As mentioned earlier, a number of matters in respect of the broken shift issue are to be the subject of a further hearing on 1 September 2021. Some of these matters may interact with submissions parties may wish to make about the quantum of the broken shift allowances, which are the subject of provisional views 2 and 3 above. For that reason, we do not propose to determine those matters in this decision. A decision in respect of those matters will be issued after the hearing on 1 September 2021.

[31] We deal with provisional view 4 in Section 4 Overtime of this decision.

[32] There is one other matter relating to broken shifts which we propose to deal with now; it concerns the requirement that an agreement to work a ‘2 break’ broken shift must be made on each occasion that an employee is rostered to work such a shift.

3.1.2 Requirement for agreement on ‘each occasion’

[33] Ai Group submits that this issue should be the subject of further consideration and that the draft determination be amended to replace clause 25.6(b)(ii) with the following: 11

‘(ii) For the purposes of clause 25.6(b)(i), an employer and an employee may agree that the employee will be rostered to work a broken shift (or broken shifts) with 2 unpaid breaks:

(A) On an ongoing basis;

(B) On a temporary basis;

(C) In relation to a specific broken shift (or broken shifts);

(D) In relation to a specific day (or days) of the roster cycle; and / or

(E) In any other manner agreed by the employer and employee.’

[34] Ai Group submits that the May 2021 Decision does not detail the rationale for requiring that agreement must be reached on each occasion and that this issue should be further considered having regard to ‘the substantial regulatory burden that it will impose on employers’. 12 Ai Group contends that requiring agreement on a per occasion basis will give rise to a range of practical issues, including that:13

•  an employer will be required to obtain an employee’s agreement before the roster is published (per clause 25.6(b)(i));

•  the ability for employees to agree to work such shifts on some occasions but not others will create significant uncertainty for an employer endeavouring to roster employees and schedule client services; and

•  if an employee has been engaged on the condition that they work broken shifts, it would be unfair to invalidate such arrangements and it is foreseeable that in some instances this would jeopardise the ongoing viability of the individual’s employment.

[35] We note here that no evidence is referred to by Ai Group in support of the proposition for the requirement that an agreement be reached on each occasion will impose a substantial regulatory burden on employers.

[36] Ai Group also submits that its earlier submissions (summarised at [511] in the May 2021 Decision) are relevant to this issue and that those submissions appear to have been endorsed in the May 2021 Decision (at [513]).

[37] It is convenient to deal with the last point first.

[38] The earlier Ai Group submissions referred to were put in response to a claim by the HSU that sought to vary clause 25.6 in a number of respects, including: 14

•  imposing a limitation of ‘1 break’ per shift such that a shift could only be ‘broken’ into 2 parts on a given day, and

•  providing that a broken shift could only be worked by agreement between the employer and employee.

[39] At [513] of the May 2021 Decision we said:

‘In these circumstances and having regard to the matters raised by Ai Group, we are not persuaded that the change proposed in respect of the default of ‘1 break’ shifts has the requisite merit.’

[40] The above conclusion – that the HSU’s claim that a 1 break broken shift can only be worked by agreement lacked the requisite merit – says nothing about conditions associated with 2 break broken shifts.

[41] The more significant obstacle confronting Ai Group’s submissions in respect of this issue is the fact that we have determined the issue that it now seeks to reagitate. The requirement for agreement ‘on each occasion’ that an employee is to work a 2 break broken shift was determined in the May 2021 Decision; it was not one of the matters about which we expressed a provisional view.

[42] The rationale for requiring an agreement on each occasion is simple. The adverse impact on employees (or disutility) of multiple breaks in a broken shift is likely to be greater than a single break between 2 portions of work. Multiple breaks between engagements are likely to result in increased ‘dead time’; time for which employees are not paid. 15 The requirement for agreement on each occasion is an important safeguard – it ensures employees consent to the particular 2 break broken shift which they are being asked to work and the disutility associated with it.

[43] The May 2021 Decision made it clear that the issue now agitated by Ai Group had been determined. We do not propose to reopen consideration of these matters in the manner sought by Ai Group. As we noted in the 9 August 2021 Statement, we are conscious of the need to provide certainty in respect of award variations arising from these proceedings and to do so as quickly as possible. That process will be impeded if parties persist in seeking to reagitate concluded issues.

[44] We are, however, prepared to consider technical amendments which concern the manner in which our substantive decision has been given effect in the terms of the draft determination; we now turn to those matters.

3.1.3 Technical amendments

[45] There are 2 technical amendments in relation to the requirement that the working of a 2 break broken shift must be the subject of an agreement on each occasion such a shift is worked, namely:

•  agreements between employers and part-time employees regarding working arrangements; and

•  the interaction between clause 25.6(b)(i) in the draft determination and the requirement in clause 25.5(a) of the SCHADS Award regarding the preparation and provision of fortnightly rosters 2 weeks in advance of each roster period.

(i) Part-time employment agreements

[46] In the course of oral argument ABI addressed the interaction between the requirement for agreement on a per occasion basis under proposed clause 25.6(b)(ii) and clause 10.3, as follows:

‘under clause 10.3(c) there will be agreed – or employers and employees may well agree on a fixed pattern of work on an ongoing basis. And we say if that agreed pattern includes a two break broken shift … that would be appropriate on an ongoing basis, rather than there being this additional requirement to obtain consent on a per occasion basis.’ 16

[47] There is considerable force in the submission put. Clause 10.3 provides a framework for an employer and a part-time employee to reach agreement on the employee’s regular pattern of work; such an agreement must be in writing. In particular, clause 10.3(c) provides that before commencing employment, the employer and part-time employee are required to enter into an agreement in writing on:

(i) a regular pattern of work including the number of hours to be worked each week; and

(ii) the days of the week the employee will work and the starting and finishing times each day.

[48] Such an agreement may subsequently be varied by agreement in writing and any such agreement may be ongoing or for a specified period of time (clause 10.3(e)).

[49] We accept that if a part-time employment agreement under clause 10.3 includes the working of a 2 break broken shift then there is no need for an additional requirement that consent be obtained on each occasion that the 2 break broken shift is worked. We will amend the draft determination accordingly.

(ii) Interaction between clause 25.5(a) and 25.6(b)(i)

[50] Clause 25.5 of the SCHADS Award deals with rosters. Clauses 25.5(a) states:

‘The ordinary hours of work for each employee will be displayed on a fortnightly roster in a place conveniently accessible to employees. The roster will be posted at least two weeks before the commencement of the roster period.’

[51] Clause 25.5(d)(i) requires that 7 days’ notice be given of a change in roster.

[52] The short point raised by Ai Group is that under clause 25.6(b)(i) of the draft determination ‘an employer would be required to obtain an employee’s agreement before the roster is published’. 17

[53] We did not consider the interaction with clause 25.5 in the May 2021 Decision. We accept that the reference to ‘rostered to work’ in proposed clause 25.6(b)(i) may have the unintended consequence of requiring that the employee’s consent to work a 2 break broken shift be given at least 2 weeks before the shift is worked. To address this issue, we will amend clause 25.6(b) in the draft determination, as follows:

(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 be rostered to 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 will be rostered 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 rostered to work who works a broken shift with 2 unpaid breaks must be paid the allowance in clause 20.10(b).

3.2 Minimum payments

3.2.1 Background

[54] Minimum engagement terms in modern awards specify the minimum time for each engagement or shift and hence the minimum payment to which an employee is entitled for each engagement or shift worked. As we noted in the May 2021 Decision, ‘minimum engagement terms protect employees from exploitation by ensuring that they receive a minimum payment for each attendance at their workplace to justify the cost and inconvenience of each such attendance.’ 18 We also noted that while this type of award clause is commonly described as a minimum engagement term, the existing SCHADS Award clause and our proposed clause operate as a minimum payment term. 19

[55] In the May 2021 Decision, we made the following findings relating to this issue 20:

1. Short shifts are a very common feature in the home care and disability services sectors. In the home care and disability support areas employers regularly engage employees to work shifts of a duration of less than 3 hours.

2. The incidence of short shifts is reflective of the nature of the services provided in this industry, and the personal care services, domestic care services, and lifestyle services that are provided which include:

•  medication prompting

•  personal care services (assistance with showering and getting dressed)

•  meal preparation

•  assistance improving skills (e.g. meal planning, teaching cooking skills, support in responsibility for personal hygiene)

•  domestic assistance (e.g. making beds, vacuuming and mopping floors, cleaning the toilet and bathroom, laundry, shopping for groceries)

•  transportation and assistance with mobility

•  development of social skills and cognitive and emotional support

•  community engagement, and

•  respite care.

3. It is common for consumers in the home care and disability services sectors to request services of a short duration.

4. Due to the high incidence of short duration client services, it is common for employees to provide a series of short-duration services to different clients throughout a single shift.

5. Employees report a range of adverse consequences with working broken shifts with short engagements and unpaid travel time.

[56] We also noted the observation of the Part-time and Casual Employment Full Bench 21 regarding evidence of short shifts in the disability sector covered by the SCHADS Award which ‘verged on being exploitative’:

‘There was some evidence of short shifts being worked in a manner which verged on being exploitative. For example, in the disability sector, Ms Potoi referred to working 1� hour shifts in the disability sector as a part-time employee in circumstances where the travel required to perform the shift took the same amount of time again; Mr Quinn worked shifts varying in length from 4 hours to 30 minutes; and Mr Morgan worked whatever shifts were offered in order to preserve his job security.’ 22

[57] Minimum engagement periods protect employees from exploitation by ensuring that they receive a minimum payment for each work attendance.

[58] In the May 2021 Decision, we concluded that equity and fairness required that part-time employees covered by the SCHADS Award have an entitlement to a minimum payment per shift and we decided to vary the SCHADS Award to introduce a 2 hour minimum payment for part-time employees and to increase the existing minimum payment for casual home care employees from 1 hour to 2 hours by inserting a new clause 10.5, as follows: 23

‘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.’

[59] Three issues arise in respect of the proposed minimum payment provision:

•  the application of minimum payments to staff meetings and training/professional development

•  transitional arrangements, and

•  confining the application of the minimum payment term to circumstances where the employee is required to attend a workplace.

3.2.2 Minimum payment for staff meetings and training/professional development

[60] In the May 2021 Decision, we said that we were not persuaded, at that time, to adopt ABI’s proposal for a 1-hour minimum engagement for attendances at work for the purpose of staff meetings and training/professional development. At [376] we said:

‘But that is not the end of the matter; we propose to provide ABI (and any other interested party) an opportunity to present further arguments and evidence in support of the proposed change.’

[61] A number of parties made submission in respect of this issue.

[62] ABI submits that a 1-hour minimum engagement is appropriate where employees are required to attend the workplace for training and staff meetings for the following reasons: 24

1. Employees will obtain the benefit of 2-hour minimum engagements in respect of their usual work engagements (i.e. the overwhelming proportion of their shifts), which is a significant improvement to the current Award.

2. Staff meetings and training will make up an overwhelming minority of the shifts performed by casual and part-time employees, so on an overall basis it cannot be said that a shorter minimum engagement for what would only be a handful of occasions would be approaching anything that could be considered ‘exploitative’.

3. Given the high proportion of part-time employment in the home care and disability services sectors (and the fact that the Award has previously not contained any minimum engagement period for part-time employees), we consider that the introduction of a two hour minimum engagement period will likely have the effect of reducing the level of training provided by employers to employees. [Emphasis added].

[63] In respect of the last proposition ABI also submits that a 2-hour minimum engagement ‘may cause employers to determine that it is not commercially viable to hold regular staff meetings, or to provide regular training and development.’ 25

[64] As to the first point, the argument advanced says nothing about the adoption of a 1-hour minimum engagement in respect of staff meetings and training/professional development. As to the second and third points, no evidence is adduced in support of the assertions made.

[65] Ai Group advances 3 propositions: 26

1. If a casual or part-time employee is required to attend a meeting or training/professional development which is conducted without being required to attend a physical workplace (i.e. where the meetings or training is conducted via an online platform or by telephone), then no minimum payment is required.

2. If a casual or part-time employee is required to attend meetings or training at a physical workplace, then a minimum payment of not more than 1 hour applies.

3. Attendance at meetings or training/professional development which are conducted remotely (without the employee being required to attend a physical workplace) should be exempt from the broken shift provisions in proposed clause 20.10 and 25.6.

[66] It is convenient to deal first with the third proposal; 3 things may be said about the proposal put.

[67] First, the proposal is clearly beyond the scope of the matter which was to be the subject of the further opportunity to present further arguments and evidence.

[68] Second, it is unclear how the proposal is intended to operate; it is not accompanied by a draft determination. At [14] of its submission of 3 August 2021, Ai Group simply submits that ‘Remote Meetings or Training should not attract the application of the broken shift provisions (i.e. proposed clauses 20.10 and 25.6).’ It follows that remote meetings or training would not attract broken shift allowances (specified in proposed clause 20.10) and nor would they attract proposed clause 25.6. Proposed clause 25.6 is set out at [27] above and includes a number of terms which are currently in the Award:

•  proposed clause 25.6(e): ‘The span of hours for a broken shift is up to 12 hours. All work performed beyond the span of 12 hours will be paid at double time’ (see current clause 25.6(c)).

•  proposed clause 25.6(f): ‘An employee must receive a minimum break of 10 hours between broken shifts rostered on successive days’ (see current clause 25.6(d)).

[69] These provisions currently apply to home care employees and social and community services employees when undertaking disability services work. No justification is provided for reducing the existing entitlements of these employees.

[70] Finally, Ai Group does not refer to any evidence to support the proposition that the proposed variation is necessary to ensure that the SCHADS Award achieves the modern awards objective.

[71] In these circumstances we do not propose to adopt Ai Group’s proposal. As we mention later, Ai Group may pursue this proposal by making an application to vary the SCHADS Award, once we have finalised the draft determination arising from these proceedings.

[72] As to propositions 1 and 2, Ai Group contends 27 ‘the evidence demonstrates’ that:

1. The duration of Remote Meetings and/or Training is ‘commonly considerably less than two hours’ and ‘in some instances it may require as little as 5 minutes’.

2. Employers permit employees to determine when they undertake ‘Remote Training’, that is, employees are at liberty to decide the day and the time at which they undertake ‘Remote Training’.

3. The imposition of a 2 hour minimum payment ‘may deter employers from providing training to their employees’.

[73] We are not persuaded that the evidence supports the breadth of the findings sought.

[74] Ai Group relies on the evidence of 2 of its witnesses – Mr Cabrita and Mr Nillsen – in support of the findings proposed. Mr Cabrita and Mr Nillsen are managers employed by the same employer, Life Without Barriers (LWB). The most that can be said about their evidence is that it concerns the experience of one employer in respect of part of its workforce. In particular, Mr Cabrita’s evidence is in respect of LWB’s aged care workforce which consists of 349 employees (out of LWB’s total workforce of 8,069 employees). 28

Proposed finding 1

[75] Mr Cabrita’s evidence is that LWB employees delivering aged care services are required, from time to time, to attend internal meetings and undertake training. 29

[76] Mr Cabrita’s evidence in respect of internal meetings is at [103]-[107]:

‘Due to the COVID-19 pandemic, currently, attendance at internal meetings typically occurs via an online platform or via telephone. These meetings generally occur with a senior member of staff. In some instances, a group of frontline aged care employees will be in attendance whilst in other instances, the meeting is between one such employee and their supervisor or manager. They are held for a range of purposes including regular meetings to discuss routine operational issues as well as the provision of supervision.

Most internal meetings of this nature are 30 minutes or less in duration. Many are as short as 15 minutes in duration. No internal meeting requiring the attendance of LWB’s aged care workforce is of two hours or more in duration. This is true of meetings currently being conducted via an online platform or telephone, as well as meetings that were conducted face-to-face prior to the pandemic.

Time spent attending a meeting is treated as time worked.

It is not always feasible to schedule such meetings immediately before or after the relevant employee(s) perform other work. This is because the timing of such meeting is contingent, in part, on the availability of other staff. Moreover, LWB endeavours to schedule meetings in a way that does not disrupt the delivery of services to its clients.

At this stage, LWB does not intend to resume regular face-to-face meetings for its aged care workforce for the foreseeable future.’

[77] Mr Cabrita’s evidence in respect of training is at [108]-[109] of his statement:

‘Employees are also required to undertake training. This includes e-learning modules about a range of matters, that are conducted online. The provision of online training is not specific to the COVID-19 pandemic. It was provided prior to the pandemic too. Employees are permitted to undertake this training at a time of their choosing and they are generally not required to attend the workplace to attend this training. They are permitted to complete the training wherever they choose. In some instances, these training modules require as little as 15 minutes to complete. Generally, they do not require more than 30 minutes to complete.

If an employee does not have access to an electronic device through which they can undertake the training, they are able to attend the workplace and use one of LWB’s devices to do so.’

[78] Mr Nillsen’s evidence regarding the duration of training is at [102] of his statement:

‘The My Learning system provides an estimate of the period of time required to undertake each module of training. The estimated time required to undertake some of the modules is as little as five minutes. Typically, each module requires 15 – 20 minutes to complete.’

[79] Contrary to Ai Group’s contention it cannot be said that remote meetings and training are ‘commonly considerably less than two hours.’ Mr Cabrita’s evidence cannot be extrapolated to the SCHADS workforce generally – he is only speaking about the 349 employees in LWB’s aged care workforce.

[80] We would also observe that there is no evidence about the frequency and duration of the training actually delivered, say over a 6 month period.

Proposed finding 2

[81] The second proposed finding is said to be supported by [99] to [101] of Mr Nillsen’s statement. Mr Nillsen’s evidence in respect of employee training is at [99]-[102] of his statement:

‘Various forms of training delivered to LWB’s employees covered by the Award is provided via an online platform called ‘My Learning’. The training delivered through this platform relates to a range of matters including general workplace health and safety matters, workplace health and safety matters associated with the COVID-19 pandemic (e.g. donning and doffing personal protective equipment and infection control measures specific to COVID-19), child safety, the ‘Aged Care Quality Standards’ prescribed by the Commonwealth Government and the delivery of specific types of support to aged persons or people with a disability.

LWB is required, at law, to provide certain types of training to its employees, because it delivers services to vulnerable people (e.g. to maintain its registration or credentials to be able to do so), such as people with a disability, aged persons, children and youth. Some of the training provided to employees is delivered, at least in part, to satisfy those obligations.

Employees can generally undertake this training remotely, without attending the workplace.

The My Learning system provides an estimate of the period of time required to undertake each module of training. The estimated time required to undertake some of the modules is as little as five minutes. Typically, each module requires 15 – 20 minutes to complete.’ [Emphasis added]

[82] The finding proposed by Ai Group is that ‘employers permit employees to determine when they undertake remote training’. The evidence only reflects the practice of one employer and it cannot be extrapolated to SCHADS employers generally.

Proposed finding 3

[83] The third proposed finding is said to be supported by [110] of Mr Cabrita’s statement, at which he states:

‘LWB does not have access to specific funding for the provision of training to its staff or for activities such as staff meetings. If LWB is required to pay employees for at least two hours for each instance in which employees undertake training or attend meetings, it intends to review its current practices in this regard and to:

(a) Consider reducing the amount of training offered to its employees except in instances in which the training is necessary for the delivery of LWB’s aged care services.

(b) Potentially reduce the extent to which it engages with staff through meetings and the provision of supervision.’

[84] The evidence given relates to LWB’s aged care workforce of 349 employees and is highly qualified. We would also observe that there is no evidence regarding the interaction of meetings and training with the current minimum engagement term in the SCHADS Award.

[85] Further to the proposed finding 3, Ai Group asserts that the extent to which the 2 hour minimum payment deters employers from providing training to employees ‘could adversely affect the extent to which employees are afforded an opportunity to develop new skills and refine existing skills’ and ‘may also ultimately affect the quality of the care provided to the employers’ clients’. 30

[86] No evidence is referred to in support of these assertions and they amount to little more than speculation.

[87] AFEI’s primary submission is that ‘attendance at training should be exempt from the minimum engagement provisions’ and employees should simply be paid for the time it takes to complete the training. 31

[88] In the alternative, AFEI submits that ‘more flexibility should be provided to providers and employees’ and proffers the following example: ‘with employee agreement, 3 x 20 minute training modules can be undertaken over a period of time, with all 3 training modules to be subject to the 1 hour minimum engagement.’

[89] AFEI also submits that the impact of 2-hour minimum engagement provision applying to training would be significant: 32

1. The financial impact for employers in circumstances where training only takes 10 minutes to complete online in the employee’s own home but the employer would be required to pay for two hours; or

2. To counter the significant financial impact, employers may be required to ‘bundle’ a series of training together until there is enough training to last two hours in length before requiring the employee to undertake the training (for example, if a training module takes 10 minutes in length, the employee may be required to undertake the training only when all 12 modules have been released). The consequential impact of this option would be on the employees and participants (including but not limited to their health and safety), particularly where the training is urgent in nature which is commonly the case given the nature of this sector.

[90] In support of its primary submission AFEI makes 3 assertions:

1. Time in attendance at training can vary taking as little as 7 minutes to at most, one hour in length.

2. Attendance at training can be completed online and in the employee’s own home or location of their choice and does not always require attendance at a location directed by the employer.

3. To some extent, the training can be undertaken by employees at mutually convenient times to the employer and employee.

[91] AFEI relies on the evidence of one witness – Kylie Lambert – as the basis for the assertions made. Ms Lambert deals with the interaction between the minimum payments term and the provision of training at [31] to [35] of her statement:

‘31. Our care workers undertake training. Training can be completed face-to-face or online. Online training can be completed in the care worker’s own home.

32. The time engaged by care workers attending training is highly variable, particularly where the training is completed online. Taking the COVID-19 pandemic for example, the Government drip-fed training modules to be completed by our care workers. Some modules lasted for as little as 7 minutes whilst other modules lasted one hour. Because the training arose as a result of the pandemic and related to employee and client health and safety, it was important to have our care workers complete the training as soon as practicable, to optimise theirs and the client’s protection.

33. With the Commission’s decision to vary minimum engagement for casual employees in the home care stream to be increased from 1 hour to 2 hours, we would be required to ‘bank up’ two hours’ worth of online training for our care workers. Where the training only takes ten minutes in length and can be done online, it would take a while before the training can be ‘banked up’. Without stating the obvious, this is not an efficient way to train our care workers and could work against protecting the health and safety of our employees and clients.

34. It would also be easier for care workers to find ten minutes, twenty minutes or even one hour in their week (or day) to focus on one training topic than be overwhelmed by lots of topics for two hours. Care workers are working, raising children, caring for their parents and managing their home.

35. If we were to apply the two hour minimum to training that takes less than two hours in length to complete, this would:

a. Increase training costs substantially; and

b. potentially make the training less effective for care workers because:

i. they would be required to undertake the training at times that may not be convenient to them but rather is undertaken at such time when there is sufficient training to last 2 hours in length;

ii. care workers may find it more overwhelming to sit through continuous training lasting 2 hours as opposed to short, sharp topics lasting ten minutes to one hour.’

[92] Four points may be made about Ms Lambert’s evidence.

[93] First, the evidence relates to one employer, Daughterly Care Community Services Ltd (Daughterly Care), which provides aged care support and care to elders. Daughterly Care employs 206 home care workers, mostly on a casual basis.

[94] Second, it is not clear why the change to minimum payment would require Daughterly Care to ‘bank up’ 2 hours’ worth of online training for its care workers; rather than simply scheduling the training at the completion of a care shift.

[95] Third, the evidence at [35](b)(i) and (ii) amounts to little more than speculation and the basis for the asserted opinions is unstated.

[96] Finally, no detail is provided regarding the frequency and duration of the training actually delivered by Daughterly Care. Nor is there any information about how training is currently scheduled; given that most of the home care workers employed by Daughterly Care are employed on a casual basis and are currently subject to a 1-hour minimum engagement.

[97] AFEI’s primary and alternate propositions are beyond the scope of the matter which was to be the subject of the opportunity to present further arguments and evidence. Further, both propositions would involve a reduction in the existing entitlements of casual home care workers.

[98] Further, the evidence advanced in support of AFEI’s propositions is confined to 1 employer who employs 206 home care workers.

[99] Home Care Assistance Australia, Zest Personalised Care and Australian Unity also support a 1-hour minimum engagement for meetings and training/professional development.

[100] We do not propose to make any of the proposed amendments to the draft determination. We are not persuaded that there is a sufficient evidentiary basis to make the findings advanced in support of the various proposals which have been put. A number of those proposals also extend beyond the scope of the matter which was to be the subject of the opportunity to present further arguments and evidence. If any party wishes to pursue a particular proposal it may make an application to vary the SCHADS Award, once we have finalised the determination arising from these proceedings. Given that that determination will come into operation on 1 July 2022 a timely application could be heard and determined before the new minimum payment term comes into operation.

3.2.3 Transitional arrangements

[101] ABI and Ai Group made detailed submissions regarding the transitional arrangements in respect of the proposed minimum payments clause.

[102] The submissions seek to address the circumstance where an existing part-time employment agreement includes shifts of less than 3 hours duration for social and community service employees (except when undertaking disability work) or shifts of less than 2 hours duration for all other employees. Absent an agreement under clause 10.3(e) to vary the agreed pattern of work, an employer may be required to pay a part-time employee for 2 or 3 hours of work (depending on the type of work they are performing) in circumstances where they work for less than 2 or 3 hours. Take for example an existing clause 10.3(c) agreement between the employer and part-time employee which provides that the employee will work a 1-hour shift each Wednesday between 8am and 9am. After the new minimum payment term commences operation, this part-time employee will be entitled to be paid for a minimum of 2 hours, even if they only perform work for 1 hour.

[103] In most cases, we would expect that employers would bundle periods of work so that employees are provided with a minimum period of work of either 2 or 3 hours, as appropriate, or an agreement would be reached between the employer and the part-time employee to vary the agreed pattern of work, under clause 10.3(e), such that periods of work are at least 2 or 3 hours in duration. But in some cases, work will not be able to be ‘bundled’ and the parties may not agree to vary the agreed pattern of work. What is to be done in these circumstances?

[104] The ASU contends, 33 in essence, that these issues would be sorted out at the workplace in a practical way and if the employer wanted to change the working arrangements and a part-time employee was unwilling to accept the proposed change then redundancy was available as an option. The UWU also opposes the ABI and Ai Group proposals and submits that the 2 hour minimum payment should not be undermined.34

[105] Contrary to the Unions’ submissions, we think it is appropriate to make provision for a transitional arrangement to address this issue. Ai Group and ABI proffer different mechanisms to deal with this issue.

[106] Ai Group proposes that the draft determination be amended to include the following provision:

X.X Clause 10.5 does not apply in relation to a part-time employee employed prior to [insert date] unless they have agreed, in accordance with clause 10.3(e) to vary their agreed hours of work such that they agree to work at least 2 or 3 hours (as appliable) [sic] per shift or period of work in a broken shift (as appliable) [sic].

[107] Ai Group also proposes that the following further amendment be made to cl.10.5 to ensure that an employer is able to require both part-time and casual employees to perform an amount of work that corresponds to the relevant minimum payment period:

X.X An employer is not required to provide the payment referred to in clause 10.5 unless the employee undertakes that number of hours of work specified in clause 10.5 during each shift or period of work during a broken shift, if requested by their employer.

[108] Ai Group submits that both proposed variations are necessary to enable an employer to permanently alter their arrangements with employees and implement rostering and staffing changes, and to align them with client and operational needs.

[109] Ai Group’s first proposed variation is a form of ‘red circling’. ‘Red circling’ refers to the practice of preserving the status quo for existing employees and only applying a particular change to employees engaged after a specified date. 35

[110] In the Penalty Rates (Transitional Arrangements) Decision the Full Bench rejected a Union red circling proposal which would have preserved the current Sunday and public holiday penalty rates for all existing employees and applied reduced penalty rates to all new employees. The Full Bench noted that the introduction of such a term would: 36

•  create significant potential for disharmony and conflict between employees performing the same work at the same time but receiving different Sunday penalty rates (contrary to s.577(d)); and

•  make the transition to ‘fair and relevant’ Sunday penalty rates more complex (adding to the ‘regulatory burden’ on business (s.134(1)(f)) and making the modern award system less simple and easy to understand (s.134(1)(g)).

[111] Similarly, in the present context Ai Group’s proposal creates significant potential for disharmony and conflict as it gives rise to 2 classes of part-time employee, with only one class entitled to a minimum payment term.

[112] Ai Group’s second proposal is curiously drafted. We are uncertain of how it is intended to operate; nor is it apparent why such a term is necessary to ensure that the SCHADS Award achieves the modern awards objective.

[113] During the course of oral argument Ai Group clarified the intent of the proposal:

‘What we were really seeking was that if there was the work, that there be some incentive on the employee to cooperate, given that we might be dealing with a situation where contractually they just don’t have to and under the award there’s no compulsion.’ 37

[114] Ai Group’s second proposed term applies to part-time and casual employees. The working arrangements of a part-time employee are governed by the agreement between the employer and employee entered into pursuant to clause 10.3. It is not at all clear how Ai Group’s proposal interacts with clause 10.3. We note that the transitional provision we propose at [130], allows an employer to unilaterally alter the agreed pattern of work to provide for periods of continuous work of 2 or 3 hours (depending on the type of work being performed), with 28 days’ notice in writing. In our view, this transitional provision deals with the issue raised by Ai Group in a more appropriate and balanced way. As to casual employees, there is no need for a term of the type proposed by Ai Group. An employer is free to offer work to a casual employee of whatever duration it wishes (subject only to the minimum payment requirement); the casual employee is free to accept or reject that offer.

[115] We would also observe that Ai Group’s second proposal extends well beyond ameliorating the impact of the May 2021 Decision. It would apply to casual employees who currently have a minimum engagement entitlement under clause 10.4(c) of the SCHADS Award.

[116] For the reasons given we reject Ai Group’s proposed variation.

[117] ABI submits that a natural consequence of the variations to the Award will be that employers will seek to change rosters and patterns of work to ensure, as much as practicable, that employees are being fully utilised for the full 2-hour period whenever they present for work, in order to minimise the circumstances in which they would incur labour costs for unproductive/unchargeable time. We agree with the proposition put.

[118] However, as ABI notes, pursuant to clause 10.3(e) of the SCHADS Award an employer cannot change a part-time employee’s agreed pattern of work without the individual employee’s agreement. ABI submits this means that:

‘Employers may be exposed to situations where a part time employee does not agree to vary their existing agreed pattern of work to permit the employer to obtain the maximum productive benefit of the time for which they must pay the employee on any shift.’ 38

[119] ABI submit that ‘the sensible way to rectify this unintended implementation issue’ 39 would be to introduce a transitional arrangement, for a defined period of time, in which the requirements of clause 10.3(e) would not apply in situations where employers vary a part-time employee’s regular pattern of work to increase any shift or portion of work that is less than the applicable minimum payment period.

[120] ABI proposes that an additional clause be inserted into clause 10.3 of the SCHADS Award, as follows:

‘(h) Between the period 1 July 2022 to 30 June 2023, the requirements of clause 10.3(e) do not apply in situations where an employer varies a part-time employee’s regular pattern of work to increase any shift or portion of work that is less than the applicable minimum engagement / minimum payment period. Seven days’ notice must be given to the employee of the change in their agreed regular pattern of work, and the new pattern of work will become the employee’s agreed regular pattern of work within the meaning of clause 10.3(c).’

[121] In response to ABI’s proposed variation, Ai Group argues that the proposal it has advanced should be adopted and submits:

‘It is very common for employers and part-time employees to agree on their hours of work, for the purposes of clause 10.3(c), in the context of a contract of employment. The provision proposed by ABI would not address the difficulties that flow from this. Employers would remain bound by their contractual obligations and the suggested clause would not give an employer a right to vary a part-time employee’s hours notwithstanding their contractual obligations.

It is also somewhat unclear whether the ‘new pattern of work’ contemplated by the clause would ‘become the employee’s agreed regular pattern of work within the meaning of clause 10.3(c)’ during the period of 1 July 2022 – 30 June 2023; or whether it would continue as the employee’s agreed pattern of work beyond that timeframe.

Unless it is the latter, rather than address the key issue identified by Ai Group and ABI in their respective submissions, the proposed clause would simply delay the point in time at which an employer would be faced with the implications of the minimum payment obligations applying to existing part-time employees.’ 40

[122] For the reasons given we have rejected Ai Group’s proposed variation. No evidence was put in support of the assertion that it is ‘very common for employers and part time employees to agree on their hours of work in the context of a contract of employment’. Proposed clause 10.5A makes clear that an employer may vary an employee’s shifts, or periods of work in broken shifts, in the circumstances set out in clause 10.5A(c).

[123] During the course of oral argument, ABI conceded that there ‘may be a couple of issues that need further consideration’ but that the intention of the provision was clear:

‘which is that an employer should effectively be able to increase the duration of certain shifts that are below the foreshadowed minimums … as at the commencement of the new changes.’ 41

[124] ABI acknowledged that an unintended consequence of its drafting was that it allowed an employer to increase a shift beyond the minimum engagement required by the proposed award variation and submits:

‘That’s not the intention. The intention is merely just to bridge the gap between … the absence of minimums and the new minimum.’ 42

[125] ABI also accepted that if the operative date of the proposed variations was deferred to 1 July 2022 then it ‘may be appropriate for an employer to give an employee more notice’.

[126] Further, ABI’s proposal does not contemplate a consultation process, an omission which ABI acknowledged was a ‘fair criticism’ of its proposal. 43

[127] Finally, as to whether the proposal should be time limited, ABI acknowledged that it was capable of being a transitional provision.

[128] As mentioned earlier, the essence of the issue raised by the employers is that the ‘agreed regular pattern of work’ for current part-time employees (under cl 10.3(c)) may include periods of work which are less than the new 2 or 3 hour minimum payment and that if there is no variation agreed then an employer may end up paying an employee for 2 (or 3) hours work in circumstances where the employee undertakes, for example, 30 minutes of work.

[129] We have decided that the determination arising from our decision will include a transitional arrangement applying to minimum payments for part-time employees and it is our provisional view that such an arrangement should have the following characteristics:

1. Limited scope:

(a) it only applies to part-time employment arrangements which:

(i) were entered into before 1 March 2022; and

(ii) provide for a period of continuous work of less than 3 hours for social and community services employees (except when undertaking disability services work) and 2 hours for all other employees( hours (and therefore are affected by the variation).

2. It imposes an obligation to consult and negotiate in good faith regarding changes to the agreed pattern of work.

3. If no agreement is reached, then the employer can unilaterally alter the agreed pattern of work to provide for periods of continuous work of 2 or 3 hours (depending on the type of work being performed), with 28 days’ notice in writing.

4. Any unilateral alteration to the agreed pattern of work cannot come into operation before 1 July 2022 (the implementation date of the minimum payment term).

5. The transitional arrangements will come into operation on 1 March 2022 and cease operation (and be removed from the Award) on 1 October 2022. The commencement date of 1 March 2022 will provide employers and employees with an appropriate period of notice of the new minimum payment provisions.

[130] A draft term which gives effect to our provisional view is set out below:

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

Clause 10.5A operates from 1 March 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 March 2022, where the employee’s agreed regular pattern of work includes shifts or periods of work in broken shifts of less than:

(i) 3 hours for social and community services employees (except when undertaking disability services work);

(ii) 2 hours for all other employees.

(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 28 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.

3.2.4 Request to attend a workplace

[131] Ai Group submits that there is a need to amend the proposed draft determination to ensure it ‘does not operate unfairly, from an employer’s perspective, in circumstances where the employees are undertaking shorter periods of work, but are not required to actually attend a workplace.’ 44

[132] Ai Group submits that ‘any notion that the adverse impact of the new minimum payment provisions may… be mitigated by an employer’s ability to ‘build’ a shift of such duration will often not be applicable to work undertaken remotely.’ 45 No evidence is referred to in support of this assertion.

[133] Ai Group proposes that the issues it raises in its submissions would be addressed by amending the draft determination to include a clause to the following effect:

‘The requirement to provide a minimum payment in accordance with this clause only applies in circumstances where an employee is required by their employer to attend a particular workplace.’

[134] Ai Group submits they are conscious that the above proposal would limit the application of the proposed minimum payment provisions in the context of both part-time and casual employment, but contends that the proposed amendment to the draft determination would be necessary in the sense contemplated by s.138 of the Act.

[135] We would also observe that Ai Group’s proposal extends beyond ameliorating the impact of our decision. It would apply to casual employees who currently have a minimum engagement entitlement under clause 10.4(c) of the SCHADS Award and would therefore reduce their existing entitlements.

[136] We are not persuaded that there is a sufficient evidentiary foundation to support the proposal advanced by Ai Group.

[137] For the reasons given we reject Ai Group’s proposed variation. If Ai Group wishes to pursue this matter it can do so by making an application to vary the SCHADS Award, once we have finalised the variation determination arising from these proceedings.

3.3 Roster changes

[138] In the May 2021 Decision, we expressed the view that there is merit in varying clause 25.5(d) to permit the variation of a roster by mutual agreement in circumstances where the variation is proposed by an employee to accommodate an agreed shift swap with another employee. 46 We expressed the provisional view that clause 25.5(d)(ii) be varied, as follows:

‘(ii) However, a roster may be changed at any time:

(A) if the change is proposed by an employee to accommodate an agreed shift swap with another employee; or

(B) to enable the service of the organisation to be carried on where another employee is absent from duty on account of illness, or in an emergency.’

[139] The underlined words constitute the variation; clause 25.5(d)(ii)(B) reflects the wording of the current clause 25.5(d)(ii).

[140] NDS supports the proposed variation to allow employees to swap shifts by agreement but proposes an amendment to clarify that an agreed shift swap between employees also requires the agreement of the employer. 47 It is proposed that the provisional clause 25.5(d)(ii)(A) at [1271] of the Decision be amended to read:

‘if the change is proposed by an employee to accommodate an agreed shift swap with another employee, subject to the agreement of the employer …’.

[141] In support of the proposed change, NDS submits:

‘In some circumstances, an employer may have reasonable grounds to not agree to a proposed shift swap. In a disability service this might relate to considerations such as matching employees with the appropriate skills and attributes to the needs of a client, or fatigue management where a shift swap might result in excessive hours being worked by an employee in a short period of time.’ 48

[142] The proposed change has merit; it is not opposed by any other party; and it is consistent with our provisional view that the Award be varied to permit (as opposed to require) roster changes in such circumstances. We will adopt the change proposed by NDS.

3.4 Client cancellation

3.4.1 Background

[143] Clause 25.5(f) of the SCHADS Award deals with client cancellation, as follows:

‘(f) Client cancellation

(i) Where a client cancels or changes the rostered home care service, an employee will be provided with notice of a change in roster by 5.00 pm the day prior and in such circumstances no payment will be made to the employee. If a full-time or part-time employee does not receive such notice, the employee will be entitled to receive payment for their minimum specified hours on that day.

(ii) The employer may direct the employee to make-up time equivalent to the cancelled time, in that or the subsequent fortnightly period. This time may be made up working with other clients or in other areas of the employer’s business providing the employee has the skill and competence to perform the work.’

[144] In short, employers may direct employees to make-up time equivalent to the cancelled time in that fortnight or during the subsequent fortnight.
[145] Clause 25.5(f) operates as follows:

•  the clause applies only to ‘home care services’, an undefined term

•  where a client cancels or changes a rostered home care service the employer is required to provide an employee with notice of a change to their roster by 5pm the day before the scheduled service:

•  if the employer notified the relevant employee before 5pm on the day prior that they are no longer required to work the employee is not entitled to any payment

•  where notice is not provided by 5pm the day prior, the employee is entitled to payment for their ‘minimum specified hours on that day’

•  an employer may direct the employee to perform ‘make-up time equivalent to the cancelled time’, provided:

•  make-up time is worked in the same or the following fortnightly period, and

•  the time may be made up working with other clients or in other areas of the employer’s business, if the employee has the skills and competence to perform the work

[146] In the May 2021 Decision, we made the following findings in respect of client cancellations 49:

1. Client cancellation events occur in both the home care and disability support sectors.

2. Clients cancel scheduled services for a range of reasons including: ill health or injury, an unscheduled medical appointment, hospitalisation, transfer into permanent residential care, death, family visits, complex behavioural issues, social appointments, refusing to have the replacement worker if their usual worker is absent that day, absence from home at the time of the scheduled service, holidays, poor weather and festival celebrations.

3. Most client cancellations occur in the 24 hours prior to the commencement of the scheduled service.

4. Client cancellation events are not uncommon.

5. The frequency of cancellation events causes significant rostering challenges for businesses. While employers endeavour to redeploy employees to other productive work where cancellation events occur, it is not always possible to do so for a range of reasons.

6. Employers encounter difficulties in finding alternative work for employees at the time of their rostered shift when a scheduled client service is cancelled by the client.

7. There is some evidence that employers cancel rostered shifts of part-time employees (without payment) under the provisions of the current clause 25.5(f).

8. Where an employee has a rostered shift cancelled without payment by their employer, the employee will lose out on expected income unless provided with a make-up shift.

9. Funding schemes have different terms in respect of cancellations and in some cases, employers are prohibited from charging cancellation fees.

10. The updated cancellation rules in the NDIS Price Guide 2019-20 improved the position of employers when it comes to clients cancelling scheduled services under the NDIS.

11. Depending on the timing of a cancelled service, a service provider may be able to both recover money from the client and cancel the shift of the employee without payment of wages; though the evidence suggests that employers do not generally engage in such practices.

12. Home care providers can set out the terms and conditions upon which they will provide services to a client, including terms about cancellation of services.

13. Home care providers can charge a client for a cancelled service provided this is in accordance with the service agreement in place between the provider and the client, however the evidence suggests that employers do not always enforce this contractual right for a range of reasons.

14. Home care providers may choose not to charge a client for a cancellation for reasons that may include demonstrating sensitivity to the client and retaining/gaining client business.

[147] In the Tranche 2 proceedings ABI sought to delete clause 25.5(f) and insert the following:

‘(f) Client cancellation

(i) Clause 25.5(f) applies where a client cancels or changes a scheduled home care or disability service, within seven days of the scheduled service, which a full-time or part-time employee was rostered to provide.

(ii) Where a service is cancelled by a client under clause 25.5(f)(i), the employer may either:

A. direct the employee to perform other work during those hours in which they were rostered; or

B. cancel the rostered shift.

(iii) Where clause 25.5(f)(ii)(A) applies, the employee will be paid the amount payable had the employee performed the cancelled service or the amount payable in respect of the work actually performed, whichever is the greater.

(iv) Where clause 25.5(f)(ii)(B) applies, the employer must either:

A. pay the employee the amount they would have received had the shift not been cancelled; or

B. subject to clause 25.5(f)(v) and (vi), provide the employee with make up time in accordance with clause 25.5(f)(vi).

(v) The make up time arrangement cannot be utilised where the employee was notified of the cancelled shift after arriving at the relevant place of work to perform the shift. In these cases, clause 25.5(f)(iv)(A) applies.

(vi) The make up time arrangement cannot be utilised where the employer is permitted to charge the client in respect of the cancelled service. In these cases, clause 25.5(f)(iv)(A) applies.

(vii) Where the employer elects to provide make up time:

A. the make up time must be rostered in accordance with clause 25.5(a);

B. the make up time must be rostered to be performed within 3 months of the date of the cancelled shift;

C. the employer must consult with the employee in accordance with clause 8A regarding when the make up time is to be worked prior to rostering the make up time; and

D. the make up shift can include work with other clients or in other areas of the employer’s business provided the employee has the skill and competence to perform the work.

(viii) Clause 25.5(f) is intended to operate in conjunction with clause 25.5(d) and does not prevent an employer from changing a roster under clause 25.5(d)(i) or (ii).’

[148] ABI’s proposed client cancellation clause would have operated as follows:

1. The clause would apply to home care and disability services.

2. In the event of a client cancellation, the clause would provide an employer with 2 options:

Option 1: The employer would have the right to direct the employee to perform other work during the hours that they were rostered to work.

In these circumstances the employer would be required to pay the employee the amount they would have been paid had the employee performed the cancelled service or the amount payable for the work actually performed; whatever is greater.

Option 2: The employer would be permitted to cancel the shift.

In these circumstances the employer would be required to:

(i) pay the employee the amount they would have received had they performed the cancelled service, or

(ii) provide the employee with make-up time. Such make-up time must be rostered to be performed within 3 months of the date of the cancelled shift. The employer must consult with the employee about when the make-up time will be performed.

[149] NDS supported ABI’s proposal; AFEI and Ai Group opposed aspects of the proposal. The Unions opposed ABI’s proposed variation.

[150] In the May 2021 Decision, we agreed with the first element of ABI’s claim (the extension of the term to disability support work):

‘We agree with ABI. Client cancellations occur in both the home care and disability support sectors. Client cancellation events occur in both sectors and are not uncommon. The frequency of cancellation events causes significant rostering challenges for businesses. It is appropriate that the client cancellation term apply to both sectors.’ 50

[151] As to the second element of ABI’s claim (removing the option of withholding payment from a worker) it was proposed that in circumstances where an employer cancels a rostered shift (under proposed clause 25.5(f)(ii)(B)) the employer must either:

•  pay the employee the amount they would have received had they performed the cancelled service, or

•  provide the employee with make-up time. Such make-up time must be rostered to be performed within 3 months of the date of the cancelled shift. The employer must consult with the employee about when the make-up time will be performed.

[152] Clause 25.5(f)(v) of the ABI proposal provided that an employee must be paid for the cancelled shift ‘where the employee was notified of the cancelled shift after arriving at the relevant place of work’.

[153] In the May 2021 Decision, we observed that if the ‘cancelled shift’ was the employee’s first engagement of the day the ABI proposal would mean that the ‘the employee will have incurred the inconvenience of having to attend the relevant place of work and will receive no recompense.’ 51 We went on to express the following provisional view:

‘Under the current clause if an employee is not notified of the cancelled shift by 5pm on the day prior they are entitled to receive payment for their minimum specified hours on that day. A ‘cut off’ of 5pm on the day prior gives rise to some variability in terms of the actual period of notice provided. If the cancelled shift was to have started at 6am then the minimum notice required is 13 hours; whereas if the cancelled shift starts at 5pm the next day then 24 hours notice is required. Client cancellations can and do occur with less than 24 hours’ notice. Our provisional view is that 12 hours notice is appropriate. This would mean that clause 25.5.(f)(v) in the ABI proposal be amended as follows:

(v) The make up time arrangement cannot can only be utilised used where the employee was notified of the cancelled shift at least after arriving at the relevant place of work to perform 12 hours prior to the scheduled commencement of the shift. In these cases, clause 25.5(f)(iv)(A) applies.’ 52

[154] We also noted the use of the word ‘shift’ in this context ‘may require further consideration’ because:

‘A shift suggests all of the work performed on a particular day, which may consist of a number of client engagements.’ 53

[155] The third element of ABI’s claim concerned the provision of more flexibility around the timetabling of make-up time.

[156] The current clause 25.5(f)(ii) provides that the employer ‘may direct the employee to make-up time equivalent to the cancelled time in that or in the subsequent fortnight period.’ [Emphasis added]

[157] Clause 25.5(f)(vii) of the ABI proposal provided:

(vii) Where the employer elects to provide make up time:

A. the make up time must be rostered in accordance with clause 25.5(a);

B. the make up time must be rostered to be performed within 3 months of the date of the cancelled shift;

C. the employer must consult with the employee in accordance with clause 8A regarding when the make up time is to be worked prior to rostering the make up time; and

D. the make up shift can include work with other clients or in other areas of the employer’s business provided the employee has the skill and competence to perform the work.

[158] At [823] of the May 2021 Decision we dealt with this aspect of ABI’s claim, as follows:

‘We agree with subclauses A, C and D. In relation to subclause B we think a period of 3 months is too long in circumstances where the employee has ‘lost’ expected income due to a shift cancellation. In our view a period of 6 weeks strikes an appropriate balance between the various considerations.’

[159] At [825] to [827] of the May 2021 Decision we discussed the ASU’s submission that ABI’s proposed clause would permit an employer to ‘double dip’ in circumstances where the employer was able to charge a participant for a cancelled service. We said that this issue could be addressed in the process of finalising the determination arising from our decision. We return to this issue shortly.

[160] These aspects of the May 2021 Decision are given effect by Item 10 of the draft determination, which deletes clause 25.5(f) and inserts the following:

(f) Client cancellation

(i) Clause 25.5(f) applies where a client cancels or changes a scheduled home care or disability service, within 7 days of the scheduled service, which a full-time or part-time employee was rostered to provide.

(ii) Where a service is cancelled by a client under clause 25.5(f)(i), the employer may either:

(A) direct the employee to perform other work during those hours in which they were rostered; or

(B) cancel the rostered shift.

(iii) Where clause 25.5(f)(ii)(A) applies, the employee will be paid the amount payable had the employee performed the cancelled service or the amount payable in respect of the work actually performed, whichever is the greater.

(iv) Where clause 25.5(f)(ii)(B) applies, the employer must either:

(A) pay the employee the amount they would have received had the shift not been cancelled; or

(B) subject to clauses 25.5(f)(v) and (vi), provide the employee with make up time in accordance with clause 25.5(f)(vii).

(v) The make up time arrangement can only be used where the employee was notified of the cancelled shift at least 12 hours prior to the scheduled commencement of the shift. In these cases, clause 25.5(f)(iv)(A) applies.

(vi) The make up time arrangement cannot be used where the employer is permitted to charge the client in respect of the cancelled service. In these cases, clause 25.5(f)(iv)(A) applies.

(vii) Where the employer elects to provide make up time:

(A) the make up time must be rostered in accordance with clause 25.5(a);

(B) the make up time must be rostered to be performed within 6 weeks of the date of the cancelled shift;

(C) the employer must consult with the employee in accordance with clause 8A regarding when the make up time is to be worked prior to rostering the make up time; and

(D) the make up shift can include work with other clients or in other areas of the employer’s business provided the employee has the skill and competence to perform the work.

(viii) Clause 25.5(f) is intended to operate in conjunction with clause 25.5(d) and does not prevent an employer from changing a roster under clause 25.5(d)(i) or (ii).

3.4.2 The Issues

[161] The submissions raise 4 broad issues for resolution:

•  the use of the word ‘shift’

•  the limitation on the use of the makeup time arrangement to circumstances where the employee was notified of the cancelled shift ‘at least 12 hours’ prior to the shift commencing (clause 25.5(f)(v) of the draft determination)

•  double dipping (clause 25.5(f)(vi) of the draft determination)

•  provision of makeup time (clause 25.5(f)(vii). Two issues are raised:

•  the 6 week window for arranging make-up time, and

•  the application of the minimum payment and broken shift requirements.

[162] We conclude this Section by also dealing with a number of residual issues.

(i) The use of the word ‘shift’

[163] As mentioned earlier, in the May 2021 Decision we said that the use of the word ‘shift’ in the proposed clause 25.5(f)(v) may require further consideration. A number of parties address this issue in their submissions.

[164] ABI submits that given the incidence of broken shifts in the disability and home care sectors (and the practice of bundling client services into a single shift or portion of work), the client cancellation clause should be re-drafted to apply not just to a ‘shift’ but to a ‘shift’, ‘portion of work’ or a ‘part of a shift’.

[165] ABI’s proposed changes to the draft determination are set out below:

(f) Client cancellation

(i) Clause 25.5(f) applies where a client cancels or changes a scheduled home care or disability service, within 7 days of the scheduled service, which a full-time or part-time employee was rostered to provide.

(ii) Where a service is cancelled by a client under clause 25.5(f)(i), the employer may either:

(A) direct the employee to perform other work during those hours in which they were rostered; or

(B) cancel the rostered shift or the affected part of the shift.

(iii) Where clause 25.5(f)(ii)(A) applies, the employee will be paid the amount payable had the employee performed the cancelled service or the amount payable in respect of the work actually performed, whichever is the greater.

(iv) Where clause 25.5(f)(ii)(B) applies, the employer must either:

(A) pay the employee the amount they would have received had the shift or part of the shift not been cancelled; or

(B) subject to clauses 25.5(f)(v) and (vi), provide the employee with make up time in accordance with clause 25.5(f)(vii).

(v) The make up time arrangement can only be used where the employee was notified of the cancelled shift (or part thereof) at least 12 hours prior to the scheduled commencement of the shift cancelled service. In these cases, clause 25.5(f)(iv)(A) applies.

(vi) The make up time arrangement cannot be used where the employer is permitted to charge the client in respect of the cancelled service. In these cases, clause 25.5(f)(iv)(A) applies.

(vii) Where the employer elects to provide make up time:

(A) the employer must provide the employee with 7 days’ notice of the make up shift (or a lesser period by agreement with the employee) make up time must be rostered in accordance with clause 25.5(a);

(B) the make up time must be rostered to be performed worked within 6 weeks of the date of the cancelled shift service;

(C) the employer must consult with the employee in accordance with clause 8A regarding when the make up time is to be worked prior to rostering the make up time; and

(D) the make up shift time can include work with other clients or in other areas of the employer’s business provided the employee has the skill and competence to perform the work.

(viii) Clause 25.5(f) is intended to operate in conjunction with clause 25.5(d) and does not prevent an employer from changing a roster under clause 25.5(d)(i) or (ii).

[166] We deal later with ABI’s proposed changes to clauses 25.5(f)(vi) and (vii).

[167] Ai Group 54 and ASU both55 advance a similar position in respect of this particular issue albeit they propose different wording.

[168] NDS submits that the client cancellation provision is really dealing with the cancellation of an appointment with a client, which may be for just part of the shift to be worked by the employee that day and that elsewhere in the clause, the term ‘service’ is used to refer to the period of work that relates to the appointment that the client is cancelling. On this basis NDS submits that the word ‘shift’ could be replaced by ‘service’ throughout clause 25.5, except at 25.5(vii)(D) where the phrase “make-up shift” could be replaced with “make-up time” to be consistent with other references to make-up time in the clause.

[169] We propose to adopt ABI’s changes to draft clause 25.5(f)(ii)(B), (iv)(A), (v) and (vii)(D).

(ii) The 12 hours’ notice limitation

[170] Clause 25.5(f)(v) of the draft determination provides:

‘The make up time arrangement can only be used where the employee was notified of the cancelled shift at least 12 hours prior to the scheduled commencement of the shift. In these cases, clause 25.5(f)(iv)(A) applies.’

[171] AFEI submits that the Commission’s provisional view would impose significant limitations on service providers (financial, bureaucratic and administrative) where: 56

•  the Commission has already acknowledged that service providers in this sector now have less certainty in relation to revenue; are experiencing greater volatility in demand for services; and are experiencing an increase in cancellations by clients; an increase in requests for changes to services by consumers; and

•  the likelihood of client cancellation in home care and disability services with less than 12 hours’ notice is a strong possibility by reason of the nature of this industry (ill health or injury, medical appointments, hospitalisation, transfer to permanent residential care etc), and particularly in circumstances where there is no funding to cover this additional financial cost.

[172] No other party contested our provisional view that the make-up time arrangement only be used where the employee was notified of the cancelled shift 12 hours prior to its scheduled commencement.

[173] No evidence is advanced in support of AFEI’s assertions and, contrary to the submission put, the evidence supports a finding that most client cancellations occur in the 24 hours prior to the commencement of the schedule service. We do not propose to depart from our provisional view that make-up time can only be used where the employee was notified of the cancelled service at least 12 hours’ prior to the scheduled commencement of the service.

(iii) Double dipping

[174] This issue is discussed at [825] to [827] of the May 2021 Decision, but not resolved. Parties were invited to address the issue in the finalisation of the draft determination.

[175] ABI submits that in its initial submission in response 57 to the ASU issue, it had indicated that it was ‘not opposed to a variation to our proposal to explicitly state that the employer may only require an employee to work make-up time where the employer is permitted to charge the client a cancellation fee.’

[176] ABI now submits that having had an opportunity to consider the ‘double dipping’ issue in more detail, it no longer considers it appropriate that there be a provision prohibiting the use of the make-up time arrangement ‘where the employer is permitted to charge the client in respect of the cancelled service’.

[177] Under ABI’s proposed clause, an employer would not be able to utilise the make-up time arrangement ‘where the employee was notified of the cancelled shift after arriving at the relevant place of work to perform the shift’.

[178] As mentioned earlier, we did not adopt that part of ABI’s proposal, and instead provisionally altered it such that an employer is only able to use the make-up time arrangement ‘where the employee was notified of the cancelled shift at least 12 hours prior to the scheduled commencement of the shift’.

[179] ABI submits that this provisional adjustment ‘materially diminishes the scope for employers to utilise the make-up time regime’ and for that reason it is not reasonable or appropriate that there be a further limitation on an employer’s ability to utilise the make-up time regime. In particular, ABI submits that there are a range of difficulties with the inclusion of a further limitation that is based directly on ‘permission to charge’ a client in respect of a cancelled shift, such as:

1. There are a range of different funding and pricing regimes applicable to disability services and home care work, such as the NDIS, Home Care Packages, Commonwealth Home Support Programme (CHSP), etc. Each of those programs are structured differently and have different rules around pricing and cancellations. Those structures and rules are also frequently changing and evolving as reforms are implemented. The effect of this is that the Award term would be susceptible to change (and capable of being changed) as a result of changes to government policy.

2. It is not appropriate for the Award to include entitlements that are directly linked to government regulation and such an approach is unconventional in the context of the modern awards system.

3. The notion of ‘permitted to charge’ introduces a level of ambiguity and uncertainty, in particular:

•  Does ‘permitted to charge’ mean permitted by law, in the sense of there being no legal prohibition on the business charging the client, or does it refer to whether the business is permitted to charge under the terms of the particular service agreement between the business and the client?

•  Does the phrase ‘permitted to charge the client in respect of the cancelled service’ mean an ability to charge the full amount that the client would have paid for the service, or does it mean an ability to charge anything (e.g. a $1 cancellation fee)?

•  How does the clause operate in a block-funding setting?

[180] In response, the ASU contends that it is ‘manifestly unfair to allow an employer to require additional work from an employee when they have billed their funding body for that employee’s wages for the cancelled period’. The ASU notes that the client cancellation term already offers the employer an ‘unusual ability to unilaterally vary an employee’s hours of work’ and submits that ‘employers should not be able to expect a windfall gain when a client cancels a shift’. 58

[181] The arguments advanced by ABI are cogent and persuasive.

[182] The operation of the proposed term would be uncertain and dependent on government policy and various pricing/funding arrangements; all of which are subject to change. We accept the submission of ABI that it is not appropriate for the proposed award term to include entitlements that are directly linked to government regulation in this way. As NDS submits, the funding arrangements around client cancellations have changed significantly over the past 2 years. 59 We will delete clause 25.5(f)(vi) from the draft determination.

(iv) Provision of make-up time

[183] Proposed clause 25.5(f)(vii) imposes some constraints on the use of make-up time in respect of a cancelled service as follows:

(vii) Where the employer elects to provide make-up time:

(A) the make-up time must be rostered in accordance with clause 25.5(a);

(B) the make-up time must be rostered to be performed within 6 weeks of the date of the cancelled shift;

(C) the employer must consult with the employee in accordance with clause 8A regarding when the make-up time is to be worked prior to rostering the make-up time; and

(D) the make-up shift can include work with other clients or in other areas of the employer’s business provided the employee has the skill and competence to perform the work.

[184] Two issues arise in respect of proposed clause 25.5(f)(vii):

(a) the 6 week window for arrangements for make-up time; and

(b) the application of the minimum payment and broken shift provisions to make-up time.

(a) The 6 week window

[185] ABI is opposed to the provisional view that the window for arranging make-up time is only 6 weeks. Similarly, AFEI submits that ‘for providers who currently roster or who plan to roster employees in advance, a practice that would become more of a necessity now in the light of the variations concerning minimum engagement and broken shifts, the make-up shift limitation of 6 weeks would present an overly complex administrative onus/burden on employers.’ 60

[186] ABI submits that as set out in the May 2021 Decision at [822], it had proposed that the client cancellation clause operate such that, where the employer elects to provide make-up time:

(a) the make-up time would be required to be rostered in accordance with clause 25.5(a); and

(b) the make-up time would be required to be rostered to be performed within 3 months of the date of the cancelled shift.

[187] ABI states that its initial proposal was put on the basis that make-up time could be rostered over a 3 month window and submits that if the time window is reduced to 6 weeks, the requirement to roster makeup time in accordance with clause 25.5(a) should be varied; as the 2 elements are interrelated. Clause 25.5(a) provides:

‘(a) The ordinary hours of work for each employee will be displayed on a fortnightly roster in a place conveniently accessible to employees. The roster will be posted at least two weeks before the commencement of the roster period.’

[188] ABI submits that if make-up time is required to be displayed on a fortnightly roster posted at least 2 weeks before the commencement of the roster period, a significant part of the 6 week window will not be available to the employer.

[189] ABI provides the following example of this issue to illustrate the point:

‘(a) An employer utilises a fortnightly roster (e.g. 5-18 July, 19 July - 1 August, 2-15 August, etc.);

(b) A client cancellation event occurs on 6 July 2021;

(c) As at 6 July 2021, the employer had already published the subsequent fortnightly roster (the roster for the fortnightly period commencing 19 July 2021 had been published on 5 July 2021);

(d) The employer is not due to publish the next fortnightly roster 19 July 2021 (13 days after the client cancellation event);

(e) The next fortnightly roster is then published on 19 July 2021;

(f) As the roster must be published 14 days in advance, the first work day shown on that roster is 2 August 2021.’ 61

[190] ABI submits that there are 2 ways in which these issues can be addressed:

1. A 3 month time period could be adopted (as originally proposed by ABI), or

2. The requirement to publish make-up time shifts on the normal roster in accordance with clause 25.5(a) could be removed and be replaced with the ability to schedule make-up time on 7 days’ notice (or less by agreement).

[191] ABI submits that ‘the second option above… is preferable for both employers and employees and should be adopted.’ 62

[192] ABI further submits:

‘We acknowledge that a 3 month time window will potentially allow larger balances of make up time to accrue, which in broad terms is not in the interests of employers or employees. We also agree that there is merit in retaining a nexus, as much as possible, between the paid cancelled shift and the make up time shift.’ 63

[193] In ABI’s view, it is in the interests of both employers and employees that make-up time be worked as soon after the cancelled shift as practicable.

[194] In respect of the second option, ABI proposed amending draft clause 25.5(f)(vii)(A) as follows:

(vii) Where the employer elects to provide make up time:

(A) the employer must provide the employee with 7 days’ notice of the make up shift (or a lesser period by agreement with the employee) make up time must be rostered in accordance with clause 25.5(a);

[195] We agree with ABI’s proposed amendment to clause 25.5(f)(vii)(A). The amendment proposed is a reasonable and sensible adjustment to the proposed clause 25.5(f)(vii)(A) and is consistent with clause 25.5(d)(i) which provides that an employee can alter an employee’s roster on 7 days’ notice. We propose to make a minor amendment to ABI’s draft clause to clarify that the rostering provisions in clause 25.5(a) do not apply when providing notice of make-up time as, follows:

(A) despite clause 25.5(a), the employer must provide the employee with 7 days’ notice of the make-up shift (or a lesser period by agreement with the employee)

[196] We will amend the Award in the manner proposed by ABI, with the minor amendment set out above. We will also make the additional changes to clause 25.5(f)(vii) proposed by ABI and set out at [165] above for consistency within the clause. These changes will be as follows:

(vii) Where the employer elects to provide make-up time:

(A) despite clause 25.5(a), the employer must provide the employee with 7 days’ notice of the make-up time (or a lesser period by agreement with the employee);

(B) the make-up time must be worked within 6 weeks of the date of the cancelled service;

(C) the employer must consult with the employee in accordance with clause 8A regarding when the make-up time is to be worked; and

(D) the make-up time can include work with other clients or in other areas of the employer’s business provided the employee has the skill and competence to perform the work.

(b) The application of the minimum payment and broken shift requirements to make-up time

[197] Ai Group submits that the final sentence of proposed clause 25.5(f)(v)–Make-up Time is unclear and the reference to ‘these cases’ is ambiguous. It proposes replacing the final sentence with:

‘The make up time arrangement can only be used where the employee was notified of the cancelled shift at least 12 hours prior to the scheduled commencement of the shift. In these cases, clause 25.5(f)(iv)(A) applies Where the employee was notified of the cancelled shift less than 12 hours prior to the scheduled commencement of the shift, clause 25.5(f)(iv)(A) applies.’

[198] Ai Group submits that the application of the minimum payment requirements to part-time employees in the event of a client cancellation substantially undermines the flexibility provided by clause 25.5(f). An employee may be rostered to perform 2 hours of work, during which they are required to service 2 clients. If one of those scheduled services is cancelled, the employer could cancel a portion of the shift in accordance with the proposed clause 25.5(f) and the employee would be required to work for the remainder of the shift.

[199] Ai Group submits that if an employee is entitled to at least 2 hours’ pay by virtue of the proposed clause 10.5 the utility of the client cancellation clause is ‘wholly undermined’ 64 and employers would face the very cost that the client cancellation clause is designed to relieve them of.

[200] Ai Group advances a similar argument in respect of the broken shift provisions.

[201] If an employee is rostered to perform a shift that is more than 2 hours in length and part of the shift is cancelled the shift may be treated as a broken shift and the employee would be entitled to at least 2 hours’ pay in respect of each portion of the shift.

[202] Ai Group submits that the combined effect of the proposed changes to clauses 10.5 and 25.5(f) would unfairly and inappropriately limit the flexibility otherwise afforded by the client cancellation provisions.

[203] Ai Group proposes 3 changes to clause 25.5(f):

1. Insert an additional subclause 25.5(f)(vii)(E) as follows:

‘(E) a part-time employee will not be entitled to the minimum payments prescribed by clause 10.5 in respect of make-up time worked.’

2. Insert an additional clause 25.5(f)(ix) as follows:

‘(ix) Where part of a shift is cancelled in accordance with clause 25.5(f), a parttime employee will not be entitled to the minimum payments prescribed by clause 10.5 in respect of the remaining portion or portions of that shift.’

3. Insert an additional clause 25.5(f)(x) as follows:

‘(x) A shift does not constitute a broken shift for the purposes of clause 20.10 and clause 25.6 where a shift is broken due to a portion of the shift being cancelled in accordance with clause 25.5(f).’

[204] Ai Group submits that the approach proposed is consistent with the need to promote flexible modern work practices and the efficient and productive performance of work and will ensure that the Award is simple and easy to understand.

[205] We have decided not to make the amendments proposed by Ai Group. In our view the client cancellation clause (as amended by this decision) strikes an appropriate balance between the interests of employers and employees. Ai Group’s proposed amendments, if adopted, would disturb that balance. The amendments would mean that employees working make-up time would be worse off than if they had worked the cancelled shift; such an outcome is not the intention of the clause and nor is it fair to the employee concerned.

[206] Further, the variations we have made in respect of minimum payments and broken shifts are directed at the disutility of short engagements and working broken shifts. 65 Ai Group’s proposed changes would undermine the efficacy of those variations.

(v) Residual issues

[207] There are 2 residual issues.

[208] The first is related to clause 25.5(f)(iii) of the draft determination, which states:

‘Where clause 25.5(f)(ii)(A) applies, the employee will be paid the amount payable had the employee performed the cancelled service or the amount payable in respect of the work actually performed, whichever is the greater.’

[209] This provision operates in circumstances where a service is cancelled by a client under clause 25.5(f)(i) and the employer directs the employee to perform other work during the hours they had been rostered to perform the (now cancelled) service. The provision is protective in character in that it ensures that employees directed to perform alternate work are not paid any less than they would have been paid had they done the work entailed in the cancelled service.

[210] The ASU submits that the Commission should take the same position as in respect to alternate duties during a cancelled shift and proposes the following addition to subclause 25.5(f)(vi):

‘(E) an employee who works make up time will be paid the amount payable had the employee performed the cancelled service or the amount payable in respect of the work actually performed, whichever is the greater.’

[211] The HSU supports the amendment proposed by the ASU. ABI does not oppose the amendment and submits:

‘there is this notion that if you're redeployed at the same time, you get paid the higher of what you would have been paid for the cancelled service, or the work that you performed; and the ASU proposal is that that notion carry on in relation to the make-up time down the track. And so we say that we don't oppose that.’ 66

[212] Ai Group opposes the position by the ASU and submits:

‘The short point is that we say that the rate of pay, the applicable penalty that should be applied would be the one that would be attached to working at that particular time, because that penalty would be the appropriate compensation for the disutility of that particular activity.’ 67

[213] We will amend the draft determination in the manner proposed by the ASU. The proposal is consistent with the approach taken in clause 25.5(f)(iii) and ensures that employees are not disadvantaged by the election made by their employer under clause 25.5(f)(ii). The approach advocated by Ai Group would mean that employees who work make-up time may receive less than had they worked the cancelled shift. Such an outcome is not appropriate given the overall structure and purpose of the clause.

[214] The second residual issue concerns the references to the term cancel (and its related grammatical forms) throughout clause 25.5(f).

[215] Ai Group submits that it is concerned that clauses 25.5(f)(ii), 25.5(f)(ii)(B), 25.5(f)(iii), 25.5(f)(iv)(A), 25.5(f)(v), 25.5(f)(vi) and 25.5(f)(vii)(B)) only refer to client cancellations and not to client changes.

[216] Ai Group, noting that proposed clause 25.5(f)(i) expressly applies where a client ‘cancels or changes’ a service, submits that it is clear from the proposed provision and the existing clause 25.5(f) that the provisions are intended to apply to both client cancellations and client changes to a scheduled service.

[217] Ai Group submits that the proposed clause 25.5(f) should be amended as follows to make clear that clauses 25.5(f)(ii), 25.5(f)(ii)(B), 25.5(f)(iii), 25.5(f)(iv)(A), 25.5(f)(v), 25.5(f)(vi) and 25.5(f)(vii)(B)) also apply to both client cancellations and client changes:

‘(f) Client cancellation

(i) Clause 25.5(f) applies where a client cancels or changes a scheduled home care or disability service, within 7 days of the scheduled service, which a fulltime or part-time employee was rostered to provide. For the purposes of clause 25.5(f), a client cancellation includes circumstances in which a client reschedules a scheduled home care or disability service.’

[218] We agree with Ai Group and will amend the clause. We will make a slight change in its proposed wording to simplify the clause as follows

‘(f) Client cancellation

(i) Clause 25.5(f) applies where a client cancels or changes a scheduled home care or disability service, within 7 days of the scheduled service, which a fulltime or part-time employee was rostered to provide. For the purposes of clause 25.5(f), a client cancellation includes where a client reschedules a scheduled home care or disability service.’

3.5 Travel time

[219] Three claims have been made in respect of travel time.

[220] The ASU and UWU seek to insert a new award term - clause 25.7 - Travel Time, as follows:  68

‘25.7 Travel Time

(a) Where an employee is required to work at different locations they shall be paid at the appropriate rate for reasonable time of travel from the location of the preceding client to the location of the next client, and such time shall be treated as time worked. The travel allowance in clause 20.5 also applies.

(b) This clause does not apply to travel from the employee’s home to the location of the first client nor does it apply to travel from the location of the last client to the employee’s home.’

[221] The HSU’s claim involves 2 variations to the SCHADS Award. First, the HSU seeks a new subclause 25.6(d) to provide a payment for travel that may be undertaken in the course of a break during a broken shift, as follows:

‘25.6 Broken shifts

(d) Where an employee works a broken shift, they shall be paid at the appropriate rate for the reasonable time of travel from the location of their last client before the break to their first client after the break, and such time shall be treated as time worked. The travel allowance in clause 20.5 also applies.’

[222] Second, the HSU seeks a new entitlement to a travel allowance for disability support workers and home care workers of $0.78 per kilometre in respect of all travel. In particular, the HSU seeks to vary clause 20.5(a), as follows:

‘(a) Where an employee is required and authorised by their employer to use their motor vehicle in the course of their duties, the employee is entitled to be reimbursed at the rate of $0.78 per kilometre. Disability support workers and home care workers shall be entitled to be so reimbursed in respect of all travel:

(a) from their place of residence to the location of any client appointment;

(b) to their place of residence from the location of any client appointment;

(c) between the locations of any client appointments on the basis of the most direct available route.’ (proposed variation in underlined text)

[223] ABI advances an alternate variation for consideration and submits that an appropriate way of dealing with the issue of unpaid travel time in the gaps between periods of work in a broken shift is to introduce a payment mechanism into the Award in the form of an allowance. ABI submits that this proposal avoids the complexities which arise if the time was to be ‘time worked’.

[224] In the May 2021 Decision we made the following findings in respect of travel time: 69

1. Employees in home care and certain work in disability services have no ‘base location’ where they start and finish each day. A key feature of the duties of such employees is the provision of services in the clients’ homes or other sites at the direction of the employer.

2. Home care workers and many disability services support workers are required to travel to various locations to provide services to clients.

3. Time spent by employees travelling varies depending on which clients they support on any given day and where they reside, and a range of factors may affect how long it takes an employee to travel from one location to another on any given day.

4. Most employees are not paid for time spent travelling to and from clients, (which includes travelling between clients and travelling to the first client / from the last client). Some employees covered by the Award can be travelling to and from clients for significant periods of time without payment.

5. There are a range of practices adopted by some employers to remunerate employees in respect of time spent travelling.

6. Employees report a range of adverse consequences with working broken shifts with short engagements and unpaid travel time.

[225] As mentioned earlier, minimum payments, broken shifts and travel time are inter-related and each has an impact on how work is organised and the remuneration for that work. All parties acknowledge the connection between these issues.

[226] In the May 2021 Decision we decided to:

•  introduce a minimum payment for part-time employees by deleting clause 10.4(c) and inserting a new clause 10.5 to provide the following minimum payment for part-time and casual employees:

•  social and community service employees (except when undertaking disability work) – 3 hours’ pay, and

•  all other employees – 2 hours’ pay,

•  vary clause 25.6 to define a broken shift as a shift consisting of 2 separate periods of work with a single unpaid ‘break’ (other than a meal break) and to accommodate the occasional need for a broken shift to involve more than one 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 an additional payment, in recognition of the additional disutility (relative to a single break shift).

[227] These changes are likely to result in changes to rostering practices and to how work is organised and consequently may also change the extent of ‘unpaid’ travel between engagements. Further, the broken shift allowance we propose is intended to compensate for 2 disutilities:

•  the length of the working day being extended because hours are not worked continuously, and

•  the additional travel time and cost associated with effectively presenting for work on 2 occasions.

[228] In the May 2021 Decision we accepted, as a general proposition, that employees should be compensated for the time spent travelling between engagements, but noted that framing an award entitlement to address this issue raised several issues, including the circumstances in which any payment is to be made and the calculation of that payment. 70 We concluded that this issue required further consideration and said that a conference would be convened to discuss the next steps.

[229] At the conference held on 27 May 2021, the President noted that since the various claims with respect to travel time were made the circumstances have changed in that we have decided to vary the minimum payments term and the broken shifts term. The President observed that:

‘once the changes are made around minimum engagement and broken shifts and they’ve operated for a period, that parties have liberty to have the matter called back on and can pursue a particular outcome in relation to travel time.’ 71

We endorse these remarks. It seems to us that it is likely that employers will seek to change rosters and patterns of work in response to our decisions in respect of minimum payment periods and broken shifts. These changes may well reduce the incidence of unpaid travel time.

[230] We have decided to defer further consideration of the various travel time claims until the variations in respect of minimum payment periods and broken shifts have been in operation for 12 months.

4. Overtime

4.1 Provisional views

[231] In the May 2021 Decision, we expressed the provisional view that, in respect of part-time employees, the SCHADS Award should be varied in 2 respects:

1. To make it clear that working additional hours is voluntary, and

2. To introduce a mechanism whereby a part-time employee who regularly works additional hours may request that their guaranteed hours be reviewed and increased, and their employer cannot unreasonably refuse such a request. 72

[232] In the May 2021 Decision, we noted that similar mechanisms to the proposed review of guaranteed hours referred to in provisional view 2 are provided in the Hospitality Industry (General) Award 2020 and the Restaurant Industry Award 2020.

[233] The following findings were made in relation to this issue: 73

1. Working in a face to face contact role with clients with disability or requiring assistance due to their age, can be physically and mentally taxing, but the degree of exertion will depend on a range of contextual factors including the particular work, the client and the employee.

2. Employers in the home care and social and community services sectors rely on part-time employees regularly working additional hours above their contracted weekly or fortnightly hours.

3. Employers regularly offer part-time employees additional hours in excess of their guaranteed hours.

4. Many part-time employees would like to receive more hours of work.

5. Part-time employees are not being forced to work additional hours.

6. For services delivered under the NDIS, the cost modelling which was used to devise the price caps imposed by the NDIA does not account for overtime rates of pay.

[234] The provisional views are given effect in Item 1 of the draft determination 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:

(i) a regular pattern of work including the number of ordinary hours to be worked each week (the guaranteed hours), and

(ii) the days of the week the employee will work and the starting and finishing times each day.

(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) Nothing in clause 10.3(e) requires an employee to agree to any change in their guaranteed hours.

(g) Review of guaranteed hours

(i) Where a part-time employee has regularly worked more than their guaranteed hours for at least 12 months, the employee may request in writing that the employer vary the agreement made under clause 10.3(c) to reflect the ordinary hours regularly being worked.

(ii) The employer must respond in writing to the employee’s request within 21 days.

(iii) The employer may refuse the request only on reasonable business grounds.

EXAMPLE: Reasonable business grounds to refuse the request may include that the reason that the employee has regularly worked additional agreed hours is temporary—for example where this is the direct result of another employee being absent on annual leave. For home care employees, reasonable business grounds to refuse a request may also include the lack of continuity of funding, changes in client numbers and client preferences.

(iv) Before refusing a request made under clause 10.3(g)(i), the employer must discuss the request with the employee and genuinely try to reach agreement on an increase to the employee’s guaranteed hours that will give the employee more predictable hours of work and reasonably accommodate the employee’s circumstances.

(v) If the employer and employee agree to vary the agreement made under clause 10.3(c), the employer’s written response must record the agreed variation.

(vi) If the employer and employee do not reach agreement, the employer’s written response must set out the grounds on which the employer has refused the employee’s request.

(vii) Clause 10.3(g) 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.’

[235] In the May 2021 Decision we also addressed a lack of clarity in the SCHADS Award as to when overtime is payable in respect of work performed by day workers outside the ordinary span of hours. At [555] of the May 2021 Decision we noted that ‘it would seem as a matter of logic that overtime is payable for such work’ and at [556] we expressed the provisional view that:

‘… the SCHADS Award should be varied to make clear that where an employee who is a day worker (including part-time and casual employees) performs work outside of the ordinary span of hours (including as part of a period of work in a broken shift), the employee is entitled to overtime for such work.’

[236] Item 14 of the draft determination gives effect to this provisional view 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 or outside the span of hours (day workers only):

(i) 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 2 hours and double time thereafter;

(ii) 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 3 hours and double time thereafter;

(iii) for all authorised overtime on a Sunday, payment will be made at the rate of double time;

(iv) for all authorised overtime on a public holiday, payment will be made at the rate of double time and a half; and

(v) 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.

(b) Part-time employees and casual employees

(i) All time worked by part-time or casual employees in excess of 38 hours per week or 76 hours per fortnight will be paid for at the rate of time and a half for the first 2 hours and double time thereafter, except that on Sundays such overtime will be paid for at the rate of double time and on public holidays at the rate of double time and a half.

(ii) All time worked by part-time or casual employees which exceeds 10 hours per day, will be 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.

(iii) Time worked up to the hours prescribed in clause 28.1(b)(ii) will, subject to clause 28.1(b)(i), not be regarded as overtime and will be paid for at the ordinary rate of pay (including the casual loading in the case of casual employees).

(iv) All time worked outside the span of hours by part-time and casual day workers will be paid for at the rate of time and a half for the first two hours and double time thereafter, except that on Sundays such overtime will be paid for at the rate of double time and on public holidays at the rate of double time and a half.

(v) Overtime rates payable under clause 28.1(b) will be in substitution for and not cumulative upon the shift premiums prescribed in clause 29—Shiftwork and are not applicable to ordinary hours worked on a Saturday or Sunday.

[237] It is convenient to address overtime in respect of full-time employees first.

4.2 Work outside the span of hours

[238] No party contested our provisional view that work performed by day workers, including part-time and casual employees outside of the ordinary span of hours be paid at overtime rates.

[239] ABI proposed that the provisional draft term be amended slightly ‘to aid precision’, as follows:

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/or, in the case of day workers, for work done outside the span of hours under clause 25.2(a)(day workers only):

[240] The UWU did not oppose ABI’s amendment. 74

[241] The ASU opposed ABI’s amendment submitting, without elaboration, that ‘we think it adds greater confusion and we wouldn’t support that’. 75

[242] The other parties did not express a view in respect of ABI’s amendment to the proposal.

[243] In our view ABI’s amendment adds clarity and we will adopt it with one minor change which is to replace ‘and/or’ with ‘and’.

4.3 Part-time employees – additional hours

[244] This section concerns the 2 provisional views and the relevant part of the draft determination set out above.

[245] Clause 10.3(g)(iii) of the draft determination provides that an employer may refuse the request only on reasonable business grounds, and provides an example including where a there is uncertainty about funding and client numbers and preferences for home care employees.

[246] A number of interested parties proposed various amendments to the example provided in the draft clause 10.3. The HSU had a concern that the example could lead to employers always being able to cite reasonable business grounds in relation to home care employees regardless of the permanency of the performance of additional hours and the length of time they had been performed. 76 NDS took a different view and submits that the term ‘reasonable business grounds’ is well understood and does not require the use of an example which might serve to unnecessarily restrict the scope of such grounds. We agree with NDS and will delete the example from the draft determination.

[247] ABI does not oppose either of the provisional views but contends that the draft clause 10.3 be amended in two respects:

1. In relation to clause 10.3(g)(i), it considers that a more accurate description of what is being contemplated by 10.3(g) is the increase of an employee’s guaranteed hours.

ABI submits that such an agreement to increase an employee’s guaranteed hours may not necessarily ‘reflect the ordinary hours regularly being worked’ by the employee. Nor should it have to. In ABI’s view, the Commission should not narrow the ways in which an employer and employee can reach agreement on increased guaranteed hours for the employee. In ABI’s view, this wording may have the unintended effect of limiting the operation of the clause.

Additionally, ABI has concerns about the proposed use of the phrase ‘ordinary hours’. While it has not considered the issue in great detail, it states that it should not be assumed that the additional hours worked by an employee were ‘ordinary hours’ within the meaning of the Award.

2. ABI submits that an additional sub-clause be inserted to confirm that an employee cannot make a request for a review of guaranteed hours where they have refused a previous offer to increase their guaranteed hours in the last 6 months, or where their employer has refused a request from the employee to increase their guaranteed hours based on reasonable grounds in the last 6 months.

[248] ABI’s proposed amendments to the wording of clause 10.3(g) are as follows:

‘(g) Review of guaranteed hours

(i) Where a part-time employee has regularly worked more than their guaranteed hours for at least 12 months, the employee may request in writing that the employer vary the agreement made under clause 10.3(c) to reflect the ordinary hours regularly being worked increase their guaranteed hours …

(viii) An employee cannot make a request for a review of their guaranteed hours when:

(A) The employee has refused a previous offer to increase their guaranteed hours in the last 6 months; or

(B) The employer refused a request from the employee to increase their guaranteed hours based on reasonable grounds in the last 6 months.

[249] ABI’s first proposed amendment to clause 10.3(g)(i) was opposed by AFEI and Ai Group. Ai Group advanced its own amendment to clause 10.3(g)(i), for the reasons set out at [170] to [175] of its submissions of 3 August 2021, as follows:

(i) Clause 10.3(g) applies to a part-time employee if:

(A) Over the preceding 12 months, they have regularly worked ordinary hours in addition to their guaranteed hours;

(B) Those additional hours constituted a pattern of hours which, without significant adjustment, the employee could continue to perform as a part-time employee under the provisions of this award; and

(C) The employee has not made a request pursuant to clause 10.3(g)(iii) that was refused by the employer in the preceding 6 month period.

(ii) A part-time employee to whom clause 10.3(g) applies is an Eligible Part-time Employee.

(iii) An Eligible Part-time Employee may make a request to their employer, in writing, that the agreement made under clause 10.3(c) or an agreement subsequently made under clause 10.3(e) be varied to reflect the ordinary hours regularly worked by the employee over the preceding 12 month period.

[250] Ai Group also notes 77 that clause 10.3(g) contemplates the making of a request and agreement to vary by reference to the hours agreed between an employer and part-time employee prior to engagement, in accordance with clause 10.3(c). As such, the clause does not take account of the possibility that the initial part-time working arrangements agreement had subsequently been varied pursuant to clause 10.3(e). Ai Group contends that the proposed clause be varied such that ‘it contemplates any subsequent agreement made under clause 10.3(e).’

[251] We note here that we agree with Ai Group and will amend proposed clause 10.3(g)(i) to delete ‘clause 10.3(c)’ and insert ‘clause 10.3(c), or as subsequently varied under clause 10.3(e).’

[252] Ai Group does not oppose ABI’s second proposed amendment and advances an amendment in similar terms.

[253] We propose to amend draft clause 10.3(g)(i) as proposed by ABI. We agree with ABI that the ways in which an employer and employee can reach agreement on increased guaranteed hours should not be constrained by the terms of clause 10.3(g)(i) having regard to the fact that an employee request may be refused on reasonable business grounds.

[254] We are not persuaded that the remaining amendments to clause 10.3(g)(i) proposed by Ai Group are necessary.

[255] We will also amend draft clause 10.3(g) to insert the additional subclause 10.3(g)(viii) proposed by ABI with a minor amendment to include the word ‘reasonable’ before ‘business grounds’. The addition is a sensible safeguard against abuse and will reduce the regulatory burden of the new term.

[256] The ASU submits that we should adopt the position taken by the Award Modernisation Full Bench in Award Modernisation [2009] AIRCFB 345 in relation to the Aged Care Award 2010, the Nurses Award 2010 and the Health Professionals and Support Services Award 2010; namely, employees be provided with the opportunity to give written consent to work additional hours at their ordinary rates of pay up to 10 hours per day or 38 hours per week and if such written consent is not provided the employee be paid at overtime rates for the additional hours. The UWU also supported the payment of additional hours at overtime rates in the absence of a signed consent form. 78 In support of this proposal, the ASU submits:

‘This would provide a fair and relevant safety net to part-time employees without any significant impact on flexibility for employers, given the noted willingness of SCHDS Industry workers to make agreements to work additional hours.’ 79

[257] In the absence of an entitlement to overtime for part-time employees where they are required to work additional hours, the ASU supports the introduction of the ‘review of part-time hours’ term but ‘doubt it will do very much to ensure that an employee’s contracted hours reflect their actual weekly working hours’. 80

[258] The ASU also proposes that clause 10.3 be reviewed after a year of operation. 81

[259] In its supplementary submission, Ai Group responds to the ASU proposal that the SCHADS Award be varied to require agreement ‘in writing’ to work additional hours and that if such agreement is not reached part-time employees are to be paid at overtime rates.

[260] Ai Group contends that this is a new substantive proposal which has not previously been the subject of submissions or evidence; and that the ASU has not identified any evidence in support of the assertions advanced at [59] of its submission. Ai Group submits:

‘It is axiomatic that the approach proposed by the unions would substantially increase the regulatory burden facing employers, by requiring written agreement with their employees in respect of the performance of additional hours. It would also create a structural incentive for employees to not agree to perform additional hours of work and it may result in increased employment costs.

Ai Group’s primary position is that the material before the Commission does not establish that the proposal advanced by the unions is necessary to ensure that the Award achieves the modern awards objective and accordingly, it should be rejected. In particular, for the reasons advanced, the Award would not provide a fair safety net (as it applies to for employers) if the proposal was adopted, it would not encourage flexible modern work practices or the efficient and productive performance of work and it would have an adverse impact on employers.’ 82 [Footnotes omitted]

[261] We agree with Ai Group; the ASU proposal is a new claim and, in any event, we are not satisfied that the variation proposed is necessary to ensure that the SCHADS Award achieves the modern awards objective. As mentioned earlier, in the May 2021 Decision we found that the evidence clearly established that employers regularly offer part-time employees work in excess of their guaranteed hours;⁸³ and that ‘there is no evidence to suggest that part-time employees are being forced to work additional hours’.⁸⁴

[262] Nor are we persuaded that it is necessary to review clause 10.3 after 12 months. If the ASU seeks to amend clause 10.3 after a period of operation it may make an application to vary the Award.

[263] Lastly, the UWU submits that in addition to the findings in the May 2021 Decision, we should also find ‘that employees working under this award often work additional hours because they feel obliged to – because they feel a sense of professional and caring responsibility - and as such free consent to accept or reject the working of such hours (which occurs frequently) often may not exist, whatever the award says’. 85 We do not propose to revisit the findings may in the May 2021 Decision and we are not satisfied that the evidence supports a finding in the terms proposed.

5. 24-Hour Care Clause

[264] In the May 2021 Decision we confirmed our provisional view that the 24-hour-care term be retained, but that the existing clause required amendment. 86 Further, at [1071] of the May 2021 Decision we said that we proposed to vary clauses 25.8 and 31.2 as follows:

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 eight 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.

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;

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

[265] Notably, we were not expressing a provisional view, we had decided to vary clauses 25.8 and 31.2 as indicated above; so much is clear from [1283] of the May 2021 Decision. Two issues have been raised about the amendments to clauses 25.8 and 31.2 in the recent submissions. 87

[266] First, NDS proposes an amendment to clause 25.8(c) of the draft determination, in particular the opening words of the subclause:

‘(c) The employee will be afforded the opportunity to sleep for a continuous period of eight hours during a 24-hour care shift …’

[267] NDS submits this provision gives rise to a concern about what happens if there is an unplanned interruption such that the opportunity for a continuous period of sleep is denied and submits that it may assist with clarity to use wording that aligns with the wording of clause 25.7 which deals with sleepovers. NDS proposes that the first sentence of the draft clause 25.8 (c) could be replaced with:

‘The employee may be required to sleep overnight at the premises where the client for who the employee is responsible is located (sleepover). This period of sleepover will be scheduled to be a continuous period of 8 hours. In the event of the employee on sleepover being required to perform work during the sleepover period, the employee will be paid for the time worked in accordance with clause 25.8(e).’

[268] AFEI also raises a concern about clause 25.8(c) and, in particular, about the use of the word ‘continuous’ in clause 25.8(c).

[269] In the proceedings leading to the May 2021 Decision, the Unions proposed an amendment to clause 25.8(d) which sought to address the lack of clarity in the current clause regarding sleeping during a 24-hour-care shift, as follows:

‘(d) During a 24 hour care shift, the employee will be afforded the opportunity to sleep for a continuous period of eight hours (the “sleep break”) during a 24 hour care shift …’

[270] In its reply submission in the earlier proceedings ABI did not oppose the proposed amendment to the existing clause to provide that ‘during a 24-hour-care shift, the employee will be afforded the opportunity to sleep for a continuous period of eight hours’ and characterised the proposal as ‘sensible’. 88 We agreed and incorporated the proposal into our amendment to clause 25.8. We rejected the Unions’ proposal to set the time parameters within which the sleep period was to occur. At [1060] to [1061] of the May 2021 Decision we said:

‘As to the proposed time parameters within which the sleep period must occur (Unions’ proposed clause 25.8(e)), there is limited evidence before us as to the specific arrangements currently in place in the sector, and accordingly we propose to take a cautious approach to the imposition of prescriptive arrangements as to when the sleep period must occur. In our view there is no probative evidence such as to warrant the prescription proposed.

In relation to the proposed payment regime for where sleep is interrupted, ABI’s proposed clause 25.8(e) has the effect of treating such work as overtime. In our view no further change is necessary.’

[271] We do not propose to make the changes sought by NDS and AFEI. In addition to being outside the scope of these proceedings, NDS’ proposal is more restrictive than the term in the draft determination and NDS’ proposal regarding payment unnecessarily complicates the operation of clause 25.8.

[272] The concern about the use of the word ‘continuous’ in the expression ‘a continuous period of eight hours’ is that an employee’s sleep may be interrupted such that they do not get 8 hours ‘continuous’ sleep. We do not share the expressed concern. It is plain from the prefatory words in subclause 25.8(c) that the obligation of an employer is limited to affording the employee ‘the opportunity to sleep for a continuous period of eight hours’. We do not propose to amend clause 25.8 in the draft determination.

[273] Second, Ai Group submits that the proposed clause 31.2(b) does not express a period of time within which the eight 24-hour care shifts must be worked in order to render an employee eligible for an additional week of annual leave. Ai Group submits that on its current wording, an employee who performs eight 24-hours care shifts over a period of 2 years would also be entitled to an additional week of leave.

[274] It is clear from paragraph [1034] of the May 2021 Decision that proposed clause 31.2(b) was intended to provide an employee who has worked at least eight 24-hour care shifts ‘in any 12 month period’ with an additional week of annual leave.

[275] In order to align the proposed clause 31.2(b) with the view we expressed in the May 2021 Decision, Ai Group submits that the proposed clause should be amended as follows:

‘(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; …’

[276] Ai Group submits that the amended proposed wording adopts the language currently used in clause 31.2 and is intended to reduce the regulatory burden on employers. Ai Group proposes that rather than a requirement to assess whether an employee works eight 24-hour care shifts in any 12 month period, the relevant period of time should be the yearly period in respect of which an employee accrues annual leave, which will generally correspond with when they first commenced employment in a permanent position.

[277] No other party opposed Ai Group’s proposed amendment. We will amend clause 31.2(b) in the draft determination in the manner suggested by Ai Group. The amendment is consistent with the May 2021 Decision and is not opposed.

6. Equal Remuneration Order

[278] In the May 2021 Decision, we decided 89 to include rates specified in the Equal Remuneration Order issued on 22 June 2012 as a note to clause 15 of the SCHADS Award. We expressed the provisional view that notes 1 and 2 be moved to the end of clause 15 and that note 2 be amended as follows:

‘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’ 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

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

[279] Other than a minor amendment proposed by Ai Group no party opposed our provisional view.

[280] Ai Group’s proposed amendment concerns a typographical error that appeared in the fourth column of the table related to Social and Community Services employees in the draft determination attached to the May 2021 Decision. Ai Group notes that this column is headed ‘Final ERO Rate Percentage’, while the fourth column of the table related to Crisis Accommodation employees is headed ‘Final Rate Percentage’. We note that in the May 2021 Decision, at [1259] we indicated that the heading ‘Final Rate Percentage’ would be used in both tables.

[281] Ai Group submits that the heading ‘Final Rate ERO Percentage’ should be used in both tables in order to clearly express that the rates in those columns are derived from the ERO. No party opposed the proposed amendment. We will confirm our provisional view but make the change suggested by Ai Group.

7. Operative Date

7.1 Submissions

[282] In the May 2021 Decision, we expressed the provisional view that an operative date of 1 October 2021 is appropriate.

[283] In their written submissions the HSU, ASU and UWU support an operative date of 1 October 2021 and submit that most matters of substance were determined in the May 2021 Decision and employers have been on notice since then that they will need to implement changes by 1 October 2021. During the course of the hearing on 6 August 2021, the ASU and HSU acknowledged that there was some merit in extending the time but that the operative date should be no later than 1 January 2022. 90 In support of this proposal Mr Robson, on behalf of the ASU, submitted:

‘That does seem to strike a reasonable balance between the operative date of the decision, the original time the decision was made, and gives plenty of time for employers to consult and make decisions with their employees.’ 91

[284] The various employer interests all oppose the provisional operative date of 1 October 2021.

[285] ABI accepts that the provisional commencement date (being almost 5 months from the data of the May 2021 Decision) ‘would, in many other cases, be an entirely reasonable period of notice … of an impending change to a modern award’. 92 However, ABI submits that a significantly longer transition period is warranted in this case, due to a unique combination of factors, including:93

(a) the very challenging operating environment which exists at the present time;

(b) the significance of the changes (both in monetary terms and in relation to impact on operating practices);

(c) the challenges relating to funding; and

(d) the need for businesses to adjust their operating practices, and the time required to allow that to occur.

[286] ABI seeks a commencement date of not earlier than the first full pay period on or after 1 July 2022.  94

[287] NDS notes that the variations to be made to the SCHADS Award ‘will have a major impact on the operations of some disability services, as well as imposing significant costs which are currently unfunded’, 95 and proposes:

‘… an operative date of 12 months after the finalisation of determinations to vary the award should apply. Alternatively, if that timeframe is not possible, then a date of no earlier than 1 July 2022 should apply.’ 96

[288] NDS contends that the award variations are likely to have a significant impact on working arrangements:

‘The required changes are likely to have significant effects on hours of work for employees with pre-existing patterns of work. The implementation of new rostering arrangements will require a change management process that allows for genuine consultation and development of measures to mitigate any adverse effects on employees.’ 97

[289] As to the financial implications of the award variations, NDS submits:

‘Employers have budgeted for the financial year and have limited capacity to adjust within the provisional operative date of October 2021.

The main funding source for disability services is the NDIS, with prices set by the NDIA. NDIA have announced an annual review of pricing will commence in August 2021 and conclude in December 2021 with a view to implementing any changes from 1 July 2022. At best it seems unlikely that there is scope for significant changes to pricing before the end of financial year 2021-2022.

NDS accepts that funding arrangements are not determinative of how modern awards should operate, however we submit they are relevant and are a factor that should be given some significant weight in this matter, particularly in the context of major change.’ 98

[290] Ai Group opposes the provisional operative date and submits that the ‘variations should not commence operation for at least 12 months from the date on which the terms of all of the variations to be made to the Award are finalised and published … in the form of a determination.’ 99 In the alternative, Ai Group submits that ‘at the very least’ the variations should commence operation on 1 July 2022.

[291] Ai Group submits that, in the May 2021 Decision, the Full Bench made a number of findings relevant to issue of the appropriate operative date ‘because they highlight the challenges many organisations covered by the Award and the various challenges they are facing.’ 100 We agree and we return to some of those findings later.

[292] Ai Group also relies on our decision of 18 October 2019 101 in relation to the operative date for the Tranche 1 variations to the SCHADS Award; to which we turn shortly.

[293] Ai Group submits that the interests of employers should not be ‘subjugated’ to the interests of employees and that an operative date of 1 October 2021, or at any time within 12 months of the date of the Commission’s final determination, is not necessary to achieve the modern awards objective because:

(a) it would be very unfair to employers (s.134(1));

(b) it would not foster the efficient and productive performance of work (s.134(1)(d)); and

(c) it would have a significant adverse impact on business, including in relation to employment costs, productivity and the regulatory burden (s.132(f)).

[294] In its Supplementary Submission, Ai Group advances the following submission in relation to its witness evidence:

‘The evidence called by Ai Group deals in large part with the potential implications of the proposed Award variations that were considered in the Decision. The evidence is primarily relied upon by Ai Group in support of its contention that the operative date of the variations should be delayed.

Elements of the evidence called by Ai Group is, to that extent, somewhat speculative in nature. However, evidence concerning potential or upcoming regulatory reform will necessarily be speculative. This should not undermine the weight that is attributed to it.

We note that in the Decision, the Commission said as follows in respect of criticism made by the unions of employer evidence that was called in relation to its claims concerning part-time employment: (emphasis added)

[970] The Unions criticised this evidence on the basis that it was vague and uncertain. We accept that there is some substance to this criticism. But, of necessity, evidence as to the likely consequences of a particular regulatory change will often be speculative. Despite the limitations in the evidence we accept that the variation proposed by the HSU is likely to change the organisation of work in the industry and that the imposition of overtime rates will act as a deterrent to employers offering additional hours to parttime employees. … 102

Similar observations were made by the Commission in the context of its decision about claims to reduce penalty rates and evidence that was led from employers about the potential impact if those claims were successful:

[771] … In light of the concessions made, we accept that much of the evidence of the lay witnesses may be regarded as speculative in nature. But this is necessarily the case. Evidence about intentions in light of proposed changes is necessarily hypothetical and speculative. Hospitality is a dynamic sector, subject to constant change, in response to changes in consumer preferences. It would be difficult to predict, with certainty, what precise actions would be taken in response to a particular change. 103

Ai Group’s evidence should be viewed through the same lens that was adopted by the Commission in the aforementioned decisions.’ 104

[295] We accept that, of necessity, evidence about the likely consequence of a particular regulatory change will often be speculative in nature.

[296] AFEI submits that an operative date of 1 October 2021 ‘provides insufficient time for employers to implement the variations made’ 105 and that:

‘The operative date should be no earlier than 1 July 2022 but ideally from twelve months when all matters in the Tranche 2 decision have been finalised (for example, the FWC makes the final determination on all matters relating to the Tranche 2 decision (including on remote response, clothing and equipment and broken shift allowance) on 1 September 2021, the operative date should be 1 September 2022) …’ 106

[297] In support of the position put AFEI submits that:

(a) the Tranche 2 Decision would result in significant unbudgeted costs for employers; current funding provides insufficient cover for cost increases; employers will either be obliged to absorb the cost increases or pass cost increases onto participants; detrimental impact from both options

(b) service providers will need to make significant variations to employee rosters; recruitment and training of staff to fulfil service gaps created by changes to the Award, and

(c) an implementation date of 1 October 2021 is unworkable; and employers are currently facing multiple challenges.

[298] AFEI relied on the evidence of Kylie Lambert in support of its position regarding the operative date issue.

[299] We have had regard to Ms Lambert’s evidence, particularly regarding the negative impact on the operations of Daughterly Care of the variations we propose to make to the SCHADS Award 107 and the steps to be taken in response to those variations.108 We also note Ms Lambert’s view that ‘1 July 2022 would be a more reasonable timeframe to implement the proposed variations.’109

[300] The Australian Community Industry Alliance (ACIA) and the Association of Private Nursing Services (APNS) also oppose an operative date of 1 October 2021 and identify a range of logistical challenges their members would face to meet the provisional timeframe. APNS submits that ‘1 July 2022 would be a more reasonable time frame to implement the proposed variation’. 110 ACIA submits that the changes ‘should not be implemented until 1 July 2022’.111

[301] Australian Unity submits that implementation be delayed ‘for a period of at least 12 months from the final decision.’ 112

7.2 Consideration

[302] As contended by Ai Group 113 and the UWU114 we accept that our consideration of the operative date issue should be guided by the approach taken in the Penalty Rates (Transitional Arrangements) Decision.115

[303] The Penalty Rates (Transitional Arrangements) Decision dealt with the implementation of the Commission’s decision to reduce Sunday and public holiday penalty rates in certain Hospitality and Retail sector awards. In particular, the Full Bench concluded that ‘any transitional arrangements must meet the modern awards objective and must only be included in a modern award to the extent necessary to meet that objective.’ 116

[304] In relation to the s.134 considerations, the Full Bench stated that the setting of transitional arrangements required a particular focus on: 117

(a) relative living standards and the needs of the low paid (s.134(1)(a));

(b) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden (s.134(1)(f)); and

(c) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards (s.134(1)(g)).

[305] Relevantly, the Full Bench also said:

‘We must also perform our functions and exercise our powers in a manner which is ‘fair and just’ (as required by s.577(a)) and must take into account the objects of the Act and ‘equity, good conscience and the merits of the matter’ (s.578).

…

Finally, fairness is a relevant consideration, given that the modern awards objective speaks of a ‘fair and relevant minimum safety net’. Fairness in this context is to be assessed from the perspective of both the employee and employers covered by the modern award in question.’ 118

[306] We propose to apply these observations to our consideration of the operative date of the variations we propose to make. There are also a number of contextual issues which bear on the operative date issue.

[307] As noted in the September 2019 Decision 119 and in the May 2021 Decision120 the social, community, home care and disability services industry is undergoing structural change as a result of reforms that have been (and continue to be) implemented. In the May 2021 Decision we concluded that the evidence supported a range of general findings, including:121

The SCHADS Sector

1. The SCHADS Award covers employees across a range of sectors including social and community services, crisis assistance, disability services, home care and family day care. 122

2. Many service providers in the SCHADS industry are not-for-profit organisations.

Reform in the SCHADS Sector

3. There have been significant regulatory changes in the disability services and home care sectors over recent years. These have included:

(a) the introduction of the NDIS which has been progressively implemented throughout Australia from July 2013, 123 and

(b) the introduction of reforms in the home care sector since around 2012. 124

4. A key feature of those regulatory changes was the transition from traditional ‘block funding’ models to individualised funding arrangements underpinned by the principle of ‘consumer-directed care’. 125

5. The principle of ‘consumer-directed care’ involves providing individual consumers with choice and control over what services are provided to them, when and where those services are provided, how those services are provided, and by whom those services are provided. 126

6. These reforms have fundamentally changed the operating environment in the following ways:

(a) service providers now have less certainty in relation to revenue¹²⁷

(b) service providers are experiencing greater volatility in demand for services,¹²⁸ as consumers have a greater ability to terminate their service arrangements¹²⁹

(c) there has been an increase in the number of service providers in the market¹³⁰

(d) service providers are exposed to greater competition for business¹³¹

(e) service providers have reduced levels of control in relation to the delivery of services, as individual consumers have more control over the manner in which services are provided to them

(f) there is a greater fragmentation of working patterns,¹³² as the employer is now less able to organise the work in a manner that is most efficient to it,¹³³ and

(g) greater choice and control for consumers has led to greater rostering challenges by reason of:

(i) an increase in cancellations by clients; 134

(ii) an increase in requests for changes to services by consumers; 135 and

(iii) an increase in requests for services to be delivered by particular support workers. 136

While the operating environment has changed, the work performed by employees in the sector has not fundamentally changed – they continue to provide similar services as in the past, albeit that the extent and scope of their work have expanded as a consequence of increased funding to the sector.

The NDIS

7. NDIS is a market based, individualised system 137 designed to give participants more choice and control over their daily lives.138

8. The implementation of the NDIS is overseen by the NDIA which is an independent statutory agency. As part of its market stewardship role, the NDIA imposes price controls on some supports by limiting the prices that registered providers can charge for those supports and by specifying the circumstances in which registered providers can charge participants for supports. 139 These prices are contained in the NDIS PB Support Catalogue 2019-20.140

9. The prices and rules contained in the Price Guide are monitored by the NDIA’s Pricing Reference Group. 141 The prices are typically updated on an annual basis by way of an Annual Price Review.142 The Pricing Reference Group helps guide NDIS price regulation activities and decisions.143

10. The NDIA uses an Efficient Cost Model to:

(a) estimate the costs to disability service providers of employing disability support workers to deliver supports through the NDIS, 144 and

(b) inform its pricing decisions in respect of the supports delivered by disability support workers on which it imposes price limits. 145

11. The Efficient Cost Model purports to estimate the costs of delivering a billable hour of support taking into account ‘all of the costs’ associated with every billable hour. 146

12. In relation to labour costs, the Efficient Cost Model uses the SCHADS Award as ‘the foundation’ of its assumptions and methodology. 147

13. The Efficient Cost Model does not contain any specific provision for, or does not account for, a range of actual or contingent costs proscribed by the SCHADS Award which are associated with delivering services.

14. Additionally, the Efficient Cost Model contains other assumptions that have the effect of further underestimating the true costs of service providers in delivering services under the NDIS. For example:

(a) the Efficient Cost Model does not account for payroll tax 148

(b) the Efficient Cost Model does not account for over-Award payments under applicable enterprise agreements 149

(c) the Efficient Cost Model assumes that 80% of the disability support workforce is permanently employed, which results in the model underestimating the costs incurred by service providers where their workforce consists of casual employees at a rate of greater than 20% of the overall frontline workforce 150

(d) the Efficient Cost Model assumes ‘utilisation rates’ (paid time that is billable compared to overall paid time) of between 87.7% and 92%, 151 which does not provide sufficient allowance for essential non-billable tasks such as administration, handover, training, team meetings, and other non-chargeable tasks,152 and

(e) the Efficient Cost Model assumes that a support worker is employed in a particular classification for each type of support delivery, but in reality the employee delivering the support may actually be at a higher pay-point. 153

15. The NDIA has been aggressive in its price regulation activities in trying to set the absolute minimal cost to control the cost to government of the NDIS as a whole. 154

16. Employers in the disability services sector have been under significant financial strain since the introduction of the NDIS. 155

17. The transition to the NDIS has been financially very challenging for some employers 156 and the pricing model has had a negative effect on the sector.157

The Home Care Sector

18. The home care sector is primarily funded by the Commonwealth Government. The Commonwealth Government controls the supply of services and packages, the levels of funding, the regulatory framework, the administrative infrastructure for payment of subsidies and consumer entry and navigation through the system. 158

19. There has been a decline in the overall performance of home care providers, which is reported as being attributable to increased competition ‘caused by the introduction of consumers being able to choose the provider from whom they receive their services’. 159

[308] We have taken these matters into account in determining the operative date. In particular, we are cognisant of the fact that:

(a) the SCHADS sector is largely dependent on government funding;

(b) the NDIA has been trying to control the cost to government of the NDIS and the pricing model adopted has had a significant effect on the sector;

(c) the transition to the NDIS has been financially very challenging for some employers; and

(d) there has been a decline in the overall performance of home care providers.

[309] In relation to the impact on clients, Ai Group advanced the following submission in support of a delayed operative date:

‘Employers covered by the Award provide services to some of the most vulnerable members of our community. It is not fair, appropriate or desirable that the quality or continuity of the care that they receive is compromised, or that, worse, employers decide that they are not in a position to continue to provide services to them in a way that is sustainable.’ 160

[310] We gave consideration to the constraints of the funding arrangements in the SCHADS sector in the September 2019 Decision; in which we said:

‘In the context of the provision of social services where employers are largely dependent on government funding, or, in the case of the NDIS, a fixed price, we are cognisant of the fact that significant unfunded employment cost increases may result in a reduction in services to vulnerable members of the community – a point made by the NDS. But such outcomes are a consequence of current funding arrangements, which are a matter for Government …

The Commission’s statutory function is to ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net. It is not the Commission’s function to make any determination as to the adequacy (or otherwise) of the funding models operating in the sectors covered by the SCHADS Award. The level of funding provided and any consequent impact on service delivery is a product of the political process; not the arbitral task upon which we are engaged.

We recognise that it may take time for a funding arrangement to adapt to a change in circumstances, such as an increase in employment costs occasioned by a variation to the award safety net. Such matters can be addressed by appropriate transitional arrangements.’ 161

[311] We adhere to these views. In particular, the funding arrangements in the sector tell in favour of a delayed operative date and we are cognisant of the fact that significant unfunded employment costs may result in a reduction in services to vulnerable members of the community; but such an outcome is a consequence of funding decisions, which are a matter for government.

[312] We accept that the variations we propose to make to the SCHADS Award will significantly impact businesses who operate under the Award, in particular they will increase employment costs; impose constraints on working arrangements (in particular they will have the consequence of reducing employer flexibility in rostering); and will result in increased regulatory burden.

[313] We also accept that these changes will take time to implement – to change rostering and payroll systems; and to consult with employees and clients. Employers will also need time to seek changes in the relevant funding arrangements.

[314] Against these considerations is the fact that a significant proportion of employees covered by the SCHADS Award may be regarded as ‘low paid’ within the meaning of s.134(1)(a) and a number of the variations we propose to make will assist those employees to better meet their needs; a consideration in favour of not deferring these variations.

[315] Further, in the May 2021 Decision we accepted that some of the existing terms in the SCHADS Award do not provide a fair and relevant minimum safety net and that the variations we have determined are necessary to ensure that the Award achieves the modern awards objective. This is also a consideration which weighs against the deferral of the variations.

[316] In our view, an appropriate, fair and just balance between these considerations is to provide that the award variations arising from these proceedings will commence operation from the first full pay period on or after 1 July 2022. In our view an operative date of 1 July 2022 is necessary to ensure that the SCHADS Award achieves the modern awards objective.

[317] The approach we have decided to take in respect of the operative date of these variations is consistent with the approach taken to the Tranche 1 variations.

[318] In the September 2019 Decision we decided to vary the rates of pay in the SCHADS Award for casual employees working overtime and on weekends and public holidays.

[319] At the time of the September 2019 Decision, the SCHADS Award provided that casual employees were paid overtime rates for all time worked in excess of 38 hours per fortnight or 10 hours per day; but that the overtime rates for casuals were in substitution for the 25 per cent casual loading (clause 28.1(b)(iv)(B)). We decided to delete clause 28.1(b)(iv)(B) with the effect that overtime rates are paid in addition to the 25 per cent casual loading. We expressed the provisional view 162 that the increase in overtime rates for casuals be operative from 1 December 2019.

[320] In the September 2019 Decision we also decided to vary clause 26 – Saturday and Sunday work and clause 34.2 – Payment for working a public holiday, to ensure that casual employees receive the 25 per cent casual loading in addition to the rates for Saturday and Sunday work, and for working on public holidays. We expressed the provisional view 163 that the increase in weekend and public holiday penalty rates for casuals should be phased in, in two instalments, the first on 1 December 2019 and the second on 1 July 2020.

[321] Subsequently, in October 2019, we decided 164 that these variations would not commence operation until 1 July 2020 (the SCHADS Tranche 1 Transitional Arrangements Decision).

[322] In the SCHADS Tranche 1 Transitional Arrangements Decision we adopted the observations in the Penalty Rates (Transitional Arrangements) Decision and concluded that ‘an appropriate fair and just balance between these considerations is to provide that the increases in overtime, weekend and public holiday rates for casuals will commence operation, in full, from 1 July 2020.’ 165

[323] Finally, we turn to Ai Group’s submission that if we adopted its alternative position and determined an operative date of 1 July 2022, then:

‘ If the Commission does not accept our submissions in this regard, the Commission should, at the very least, decide that the variations will commence operation on 1 July 2022. We respectfully submit that if the Commission decides to adopt this proposition, it should move to determine the final form of the variations to be made as soon as practicable (whilst still affording a fair opportunity to the parties to address any newly proposed changes), so as to ensure that employers have the benefit of the requisite degree of certainty required in order to commence the various processes that they will need to implement in order to ensure that they are able to operate in conformance with the Award from the operative date.’ 166

[324] Consistent with the view expressed by Ai Group, we intend to move quickly to determine the final form of the variations to be made to the SCHADS Award. We discuss this issue further in section 8, Next Steps, of this decision.

8. Next Steps

[325] There are only 2 matters arising from the decision about which we wish to provide an opportunity for comment:

1. The provisional view regarding the particular characteristics of the transitional arrangements that will apply to minimum payments for part-time employees (see [129] and [130] above).

2. Any technical amendments to the revised draft determination set out at Attachment 1 to this decision.

[326] The second matter is not an opportunity to seek to reagitate a matter which has been determined. Rather, it is an opportunity to draw our attention to any drafting issues that do not reflect the terms of our decision or which give rise to unintended consequences.

[327] A number of the proposals advanced by the principal parties during this stage of the proceedings amounted to little more than an attempt to reagitate an issue which we had already determined. Similarly, Australian Unity, Zest Personalised Care and Home Care Assistance oppose the 2 hour minimum engagement term for part-time employees and restricting broken shifts to ‘2 breaks’; and ACIA submits that the 2 hour minimum engagement term ‘be reconsidered’. We decided these issues in the May 2021 Decision, and we do not propose to revisit those decisions.

[328] As we noted in the 9 August 2021 Statement, we are conscious of the need to provide certainty in respect of award variations arising from these proceedings and to do so as quickly as possible. That process will be impeded if parties persist in seeking to reagitate concluded issues.

[329] The final phase in these proceedings requires that any submissions in respect of the remaining matters (set out at [3] and [11] above) are to be filed by no later than 4PM (AEST) on Wednesday, 25 August 2021. Any submissions and evidence in reply are to be filed by no later than 4PM (AEST) on Monday, 30 August 2021.

[330] Parties may make submissions about the 2 matters arising from this decision (see [325] above) when they file their reply submissions on Monday 30 August 2021. These matters may also be addressed in oral argument at the hearing on 1 September 2021.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR733158>

ATTACHMENT 1

MA000100  PRXXXXXX
FAIR WORK COMMISSION

DRAFT 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]

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) and XX MONTH 2021 ([2021] FWCFB XXXX), 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:

(i) a regular pattern of work including the number of ordinary hours to be worked each week (the guaranteed hours), and

(ii) the days of the week the employee will work and the starting and finishing times each day.

(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) Nothing in clause 10.3(e) requires an employee to agree to any change in their guaranteed hours.

(g) Review of guaranteed hours

(i) Where a part-time employee has regularly worked more than their guaranteed hours for at least 12 months, the employee may request in writing that the employer vary the agreement made under clause 10.3(c), or as subsequently varied under clause 10.3(e), to increase their guaranteed hours.

(ii) The employer must respond in writing to the employee’s request within 21 days.

(iii) The employer may refuse the request only on reasonable business grounds.

(iv) Before refusing a request made under clause 10.3(g)(i), the employer must discuss the request with the employee and genuinely try to reach agreement on an increase to the employee’s guaranteed hours that will give the employee more predictable hours of work and reasonably accommodate the employee’s circumstances.

(v) If the employer and employee agree to vary the agreement made under clause 10.3(c), the employer’s written response must record the agreed variation.

(vi) If the employer and employee do not reach agreement, the employer’s written response must set out the grounds on which the employer has refused the employee’s request.

(vii) Clause 10.3(g) 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.

(viii) An employee cannot make a request for a review of their guaranteed hours when:

(A) The employee has refused a previous offer to increase their guaranteed hours in the last 6 months; or

(B) The employer refused a request from the employee to increase their guaranteed hours based on reasonable business grounds in the last 6 months.

2. By deleting clause 10.4(c).

3. By renumbering clause 10.5 as 10.6.

4. 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.

5. By inserting a new clause 10.5A as follows:

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

Clause 10.5A operates from 1 March 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 March 2022, where the employee’s agreed regular pattern of work includes shifts or periods of work in broken shifts of less than:

(i) 3 hours for social and community services employees (except when undertaking disability services work);

(ii) 2 hours for all other employees.

(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 28 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.

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

7. 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).

8. 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

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

9. By inserting clause 20.10 as follows:

20.10 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% 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 2.5% of the standard rate, per broken shift.

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

(ii) However, a roster may be changed at any time:

(A) if the change is proposed by an employee to accommodate an agreed shift swap with another employee, subject to the agreement of the employer; or

(B) to enable the service of the organisation to be carried on where another employee is absent from duty on account of illness, or in an emergency.

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

(f) Client cancellation

(i) Clause 25.5(f) applies where a client cancels or changes a scheduled home care or disability service, within 7 days of the scheduled service, which a full-time or part-time employee was rostered to provide. For the purposes of clause 25.5(f), a client cancellation includes where a client reschedules a scheduled home care or disability service.

(ii) Where a service is cancelled by a client under clause 25.5(f)(i), the employer may either:

(A) direct the employee to perform other work during those hours in which they were rostered; or

(B) cancel the rostered shift or the affected part of the shift.

(iii) Where clause 25.5(f)(ii)(A) applies, the employee will be paid the amount payable had the employee performed the cancelled service or the amount payable in respect of the work actually performed, whichever is the greater.

(iv) Where clause 25.5(f)(ii)(B) applies, the employer must either:

(A) pay the employee the amount they would have received had the shift or part of the shift not been cancelled; or

(B) subject to clauses 25.5(f)(v), provide the employee with make-up time in accordance with clause 25.5(f)(vi).

(v) The make-up time arrangement can only be used where the employee was notified of the cancelled shift (or part thereof) at least 12 hours prior to the scheduled commencement of the cancelled service. In these cases, clause 25.5(f)(iv)(A) applies.

(vi) Where the employer elects to provide make-up time:

(A) despite clause 25.5(a), the employer must provide the employee with 7 days’ notice of the makeup-time (or a lesser period by agreement with the employee);

(B) the make-up time must worked within 6 weeks of the date of the cancelled service;

(C) the employer must consult with the employee in accordance with clause 8A regarding when the make-up time is to be worked;

(D) the make-up time can include work with other clients or in other areas of the employer’s business provided the employee has the skill and competence to perform the work; and

(E) an employee who works make-up time will be paid the amount payable had the employee performed the cancelled service or the amount payable in respect of the work actually performed, whichever is the greater.

(vii) Clause 25.5(f) is intended to operate in conjunction with clause 25.5(d) and does not prevent an employer from changing a roster under clause 25.5(d)(i) or (ii).

12. 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

(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.

13. 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.

14. 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.

15. 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):

(i) 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 2 hours and double time thereafter;

(ii) 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 3 hours and double time thereafter;

(iii) for all authorised overtime on a Sunday, payment will be made at the rate of double time;

(iv) for all authorised overtime on a public holiday, payment will be made at the rate of double time and a half; and

(v) 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.

(b) Part-time employees and casual employees

(i) All time worked by part-time or casual employees in excess of 38 hours per week or 76 hours per fortnight will be paid for at the rate of time and a half for the first 2 hours and double time thereafter, except that on Sundays such overtime will be paid for at the rate of double time and on public holidays at the rate of double time and a half.

(ii) All time worked by part-time or casual employees which exceeds 10 hours per day, will be 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.

(iii) Time worked up to the hours prescribed in clause 28.1(b)(ii) will, subject to clause 28.1(b)(i), not be regarded as overtime and will be paid for at the ordinary rate of pay (including the casual loading in the case of casual employees).

(iv) All time worked outside the span of hours by part-time and casual day workers will be paid for at the rate of time and a half for the first two hours and double time thereafter, except that on Sundays such overtime will be paid for at the rate of double time and on public holidays at the rate of double time and a half.

(v) Overtime rates payable under clause 28.1(b) will be in substitution for and not cumulative upon the shift premiums prescribed in clause 29—Shiftwork and are not applicable to ordinary hours worked on a Saturday or Sunday.

16. 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.

17. By updating cross-references accordingly.

B. Item 5 of this determination comes into operation on 1 March 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 March 2022.

C. Items 1 to 4 and 6 to 17 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.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

 1   [2021] FWCFB 2383 (‘May 2021 Decision’).

 2   Ibid at [1262].

 3   [2021] FWCFB 4716.

 4   AFEI corrected a typographical error at [253] of the summary document, ‘no later than’ should be replaced by ‘no earlier than’. See Transcript, 6 August 2021 at PN847-849.

 5   [2021] FWCFB 4863.

 6   ASU submission, 3 August 2021 at [41].

 7   May 2021 Decision at [232].

 8   May 2021 Decision at [452].

 9   May 2021 Decision at [488].

 10   Ibid at [1266].

 11   Ai Group submission, 3 August 2021 at [261].

 12   Ai Group submission, 3 August 2021 at [256].

 13   Ai Group submission, 3 August 2021 at [256].

 14   May 2021 Decision at [410].

 15   May 2021 Decision at [487].

 16   Transcript, 6 August 2021 at PN717.

 17   Ai Group submission, 3 August 2021 at [256].

 18   May 2021 Decision at [246].

 19   May 2021 Decision at [243].

 20   May 2021 Decision at [322].

 21   [2017] FWCFB 3541 (‘Part-time and Casual Employment Case’).

 22   Part-time and Casual Employment Case at [406].

 23   May 2021 Decision at [377].

 24   ABI submission, 3 August 2021 at [38].

 25   ABI submission, 3 August 2021 at [39].

 26   Ai Group submission, 3 August 2021 at [13]-[14].

 27   Ai Group submission, 3 August 2021 at [19]-[22].

 28   Exhibit AIG5, Witness Statement of Richard Cabrita at [8] and [19].

 29   Exhibit AIG5, Witness Statement of Richard Cabrita at [102].

 30   Ai Group submission, 3 August 2021 at [22].

 31   AFEI submission, 3 August 2021 at [41].

 32   AFEI submission, 3 August 2021 at [39].

 33   See Transcript, 6 August 2021 at PN455-475.

 34   Transcript, 6 August 2021 at PN386.

 35   [2017] FWCFB 3001 at [110].

 36   [2017] FWCFB 3001 at [119].

 37   Transcript, 6 August 2021 at PN380.

 38   ABI submission, 3 August 2021 at [109].

 39   Ibid at [110].

 40   Ai Group supplementary submission, 5 August 2021 at [46]-[48].

 41   Transcript, 3 August 2021 at PN720.

 42   Transcript, 3 August 2021 at PN772.

 43   Ibid at [723].

 44   Ai Group submission, 3 August 2021 at [205].

 45   Ai Group submission, 3 August 2021 at [216].

 46   May 2021 Decision at [643].

 47   Ai Group also proposed such an amendment. Zest Personalised Care and Includa also made similar points in their submissions.

 48   NDS submission, 3 August 2021 at [25].

 49   May 2021 Decision at [784].

 50   May 2021 Decision at [803].

 51   May 2021 Decision at [818].

 52   May 2021 Decision at [818].

 53   May 2021 Decision at [819].

 54   Ai Group submission, 3 August 2021 at [239].

 55   ASU submission, 9 August 2021 at page 1.

 56   AFEI submission, 3 August 2021 at [57].

 57   ABI submission, 12 October 2019 at [2.22]

 58   ASU submission, 3 August 2021 at [47].

 59   Transcript, 6 August 2021 at PN791.

 60   AFEI submission, 3 August 2021 at [58].

 61   ABI submission, 3 August 2021 at [50].

 62   ABI submission, 3 August 2021 at [59].

 63   ABI submission, 3 August 2021 at [61].

 64   Ai Group submission, 3 August 2021 at [242].

 65   May 2021 Decision at [535], [550].

 66   Transcript, 6 August 2021 at PN764.

 67   Transcript, 6 August 2021 at PN630.

 68   UWU Submission, 1 April 2019; ASU submission, 2 July 2019.

 69   May 2021 Decision at [584].

 70   May 2021 Decision at [588].

 71   Transcript, 27 May 2021 at PN130.

 72   May 2021 Decision at [987].

 73   HSU Submission, 18 November 2019 at [107]-[113].

 74   Transcript, 6 August 2021 at PN426-428.

 75   Transcript, 6 August 2021 at PN551.

 76   HSU submission, 3 August 2021 at [49].

 77   Ai Group submission, 3 August 2021 at [168]-[169].

 78   UWU submission, at [57].

 79   ASU Submission, 3 August 2021 at [63].

 80   ASU Submission, 3 August2021 at [65].

 81   ASU submission, 3 August 2021 at [69].

 82   Ai Group supplementary submission, 5 August 2021 at [41]-[43].

83 May 2021 Decision at [973].

84 May 2021 Decision at [972].

 85   UWU submission, 3 August 2021 at [56].

 86   May 2021 Decision at [1013].

 87   We note that Includa sought to extend the operation of the 24-hour care clause, to include shifts on a supported holiday and that the excursions clause be reconsidered to ensure consistency. If they wish to pursue their claim, they should make an application to vary the Award.

 88   ABI submission, 26 February 2021 at [113].

 89   May 2021 Decision at [1256].

 90   Transcript, 6 August 2021 at PN556 and PN589.

 91   Transcript, 6 August 2021 at PN556.

 92   ABI submission, 3 August 2021 at [21].

 93   ABI submission, 3 August 2021 at [122].

 94   ABI submission, 3 August 2021 at [182].

 95   NDS submission, 3 August 2021 at [43].

 96   NDS submission, 3 August 2021 at [44].

 97   NDS submission, 3 August 2021 at [55].

 98   NDS submission, 3 August 2021 at [49]-[51].

 99   Ai Group submission, 3 August 2021 at [87].

 100   Ai Group submission, 3 August 2021 at [93].

 101   [2019] FWCFB 7096.

 102   May 2021 Decision at [970].

 103   4 yearly review of modern awards – Penalty Rates [2017] FWCFB 1001 at [771].

 104   Ai Group supplementary submission, 5 August 2021 at [50]-[54].

 105   AFEI submission, 3 August 2021 at [31].

 106   AFEI submission, 3 August 2021 at [14].

 107   See Exhibit AFEI1, Witness Statement of Kylie Lambert at [14], [30]-[51] and [56].

 108   Exhibit AFEI1, Witness Statement of Kylie Lambert at [60].

 109   Exhibit AFEI1, Witness Statement of Kylie Lambert at [61].

 110   APNS submission, 3 August 2021, p 3.

 111   ACIA submission, p 5.

 112   Australian Unity submission, 3 August 2021 at p 11.

 113   Ai Group submission, 3 August 2021 at [90]–[163].

 114   Transcript, 6 August 2021 at PN 883 to 884.

 115   [2017] FWCFB 3001.

 116   [2017] FWCFB 3001 at [143].

 117   [2017] FWCFB 3001 at [143].

 118   [2017] FWCFB 3001 at [144] and [148].

 119   [2019] FWCFB 6067 at [48]-[75].

 120   May 2021 Decision at [211].

 121   May 2021 Decision at [218].

 122   FWC – Survey Analysis of the Social, Community, Home Care and Disability Services Industry Award 2010 (June 2019).

 123   National Disability and Insurance Scheme Act 2013 (Cth). Also see ABI submission, 5 April 2019 at paras 3.15 – 3.18; Ai Group Submission, 8 April 2019 at paras 83 – 87.

 124   ABI submission, 5 April 2019 at paras 3.7 – 3.14; See also the Aged Care Legislation Amendment (Increasing Consumer Choice) Act 2016 (Cth).

 125   Exhibit ASU4 – Stanford Report, September 2019 at para 24; Exhibit UV7 – Witness Statement of Melissa Coad, 16 September 2019 at para 14.

 126   See National Disability and Insurance Scheme Act 2013 (Cth), s.3(1)(e); Exhibit ABI2 – Witness Statement of Darren Mathewson, 12 July 2019 at para 48; Exhibit UV7 – Witness Statement of Melissa Coad, 16 September 2019 at para 16.

127 Exhibit ABI3 – Witness Statement of Jeffrey Wright, 12 July 2019 at paras 22, 24; Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 at para 37; Exhibit ASU4 – Stanford Report, September 2019 at para 8.

128 Exhibit ASU4 – Stanford Report, September 2019 at para 8: ‘Demand for specific services fluctuates constantly due to changes in the number of clients, their approved budgets, their specific choices of services, and other factors’.

129 Exhibit ABI7 – Witness Statement of Scott Harvey, 2 July 2019, Attachment A: ConnectAbility’s Service Agreement allows participants to cancel with four weeks’ notice.

130 NDS, ‘State of the Disability Sector Report 2018’, p 20, CB3385.

131 NDS, ‘Australian Disability Workforce Report’, February 2018, p 14, CB3329; Exhibit HSU25 – Witness Statement of Fiona Macdonald, 15 February 2019, Attachment FM-2, p 85.

132 Exhibit ASU4 – Stanford Report, September 2019 at para 8: ‘The individualised, market-based system which the NDIS uses to deliver services to participating clients is creating a profound fragmentation and instability in the nature of delivered services’.

133 Exhibit ABI7 – Witness Statement of Scott Harvey, 2 July 2019 at para 28.

 134   Exhibit ABI6 – Witness Statement of Deb Ryan, 12 July 2019 at para 41.

 135   Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 at para 34.

 136   Exhibit ABI8 – Witness Statement of Wendy Mason, 17 July 2019 at para 42; Exhibit UV7 – Witness Statement of Melissa Coad, 16 September 2019 at para 26.

 137   Exhibit ASU4 – Stanford Report, September 2019 at para 8; Exhibit HSU25 – Witness Statement of Fiona Macdonald, 15 February 2019, Attachment FM-2, p 85; Natasha Cortis, ‘Working under the NDIS: Insights from a survey of employees in disability services’ (June 2017), section 1, CB3137; NDS Submission, 16 July 2019 at para 8.

 138   Exhibit NDS1 – Witness Statement of David Moody, 12 July 2019 at paras 11 – 12.

 139   NDIS Price Guide 2019-20, 1 October 2019, CB4321.

 140   Exhibit ABI12 – NDIA Support Catalogue, 1 October 2019.

 141   Media Release, ‘NDIS price increases for a sustainable and vibrant disability services market’, Minister for Families and Social Services and Assistant Minister for Social Services, Housing and Disability Services, 30 March 2019, CB2858.

 142   Ibid, CB2859.

 143   Ibid, CB2859.

 144   NDIA, ‘National Disability Insurance Scheme: Efficient Cost Model for Disability Support Workers’, June 2019, CB494.

 145   Ibid, CB493.

 146   Ibid, CB494.

 147   Ibid, CB494.

 148   Ibid, CB496.

 149   Ibid, CB494.

 150   NDIA, ‘National Disability Insurance Scheme: Efficient Cost Model for Disability Support Workers’, June 2019, CB497; Transcript, 15 October 2019 at PN894-PN900.

 151   NDIA, ‘National Disability Insurance Scheme: Efficient Cost Model for Disability Support Workers’, June 2019, CB498.

 152   Natasha Cortis, ‘Working under the NDIS: Insights from a survey of employees in disability services’ (June 2017), CB3156-3157.

 153   NDIA, ‘National Disability Insurance Scheme: Efficient Cost Model for Disability Support Workers’, June 2019, CB494.

 154   Part-time and Casual Employment Case at [630].

 155   Exhibit ASU4 – Stanford Report, September 2019 at para 24.

 156   Exhibit ASU4 – Stanford Report, September 2019 at para 24, 51, 53.

 157   Productivity Commission Study Paper ‘National Disability Insurance Scheme (NDIS) Costs’, CB3759.

 158   Exhibit ABI2 – Witness Statement of Darren Mathewson, 12 July 2019 at para 39.

 159   Aged & Community Services Australia, ‘Seventh report on the Funding and Financing of the Aged Care Sector – summation and commentary’, July 2019, CB457.

 160   Ai Group Submission, 3 August 2021 at [160].

 161   September 2019 Decision at [137]-[139].

 162   September 2019 Decision at [200].

 163   September 2019 Decision at [199].

 164   4 yearly review of modern awards—Group 4—Social, Community, Home Care and Disability Services Industry Award 2010—Substantive claims [2019] FWCFB 7096.

 165   September 2019 Decision at [35].

 166   Ai Group submission, 3 August 2021 at [164].