[2021] FWCFB 5641
FAIR WORK COMMISSION

DECISION


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 & AM2020/100)

Social, community, home care and disability services

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE

MELBOURNE, 18 OCTOBER 2021

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. Introduction and overview

[1] On 4 May 2021 we issued a decision 1 (May 2021 Decision) in relation to the Tranche 2 claims in the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award). In that decision 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. A draft determination was attached to 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 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] The matter was the subject of a hearing on Friday, 6 August 2021. The transcript of the hearing is available here.

[4] On 3 August 2021 we issued a Statement 3 in which we 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. We return to those issues shortly.

[5] In a decision published on 25 August 2021 4 (the August 2021 Decision) we set out our reasons for deciding to vary the SCHADS Award in the following ways:

Broken shifts

1. We confirmed 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 would be 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 the decision would include a transitional arrangement applying to minimum payments for part-time employees.

Roster changes

4. Clause 25.5(d)(ii) would 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, 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) would 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 would be 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’ – would be deleted from the draft determination.

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

9. An additional term would 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

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

Overtime

11. We confirmed 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 would 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):

12. We confirmed 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.

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

  Clause 10.3(g)(i) would 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) would be deleted.

  A new clause 10.3(g)(viii) would 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

14. Clause 31.2(b) of the draft determination, in relation to quantum of leave, would 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

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

Operative date

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

[6] A revised draft determination was attached to the August 2021 Decision to give effect to the above matters (Revised Draft Determination). These matters have now been decided.

[7] The August 2021 Decision did not however, finalise all matters arising out of the Tranche 2 claims. 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 and 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 would 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. The ASU has filed a draft determination in respect of this issue.

[8] 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 [7] above were to be filed by no later than 4.00pm (AEST) on Wednesday, 25 August 2021. Any submissions and evidence in reply were to be filed by no later than 4.00pm (AEST) on Monday 30 August 2021.

[9] Initial submissions were received from the following interested parties:

  ABI

  AFEI

  Ai Group

  ASU

  HSU

  NDS

  UWU

[10] Submissions in reply were received from: 6

  ABI

  AFEI

  Ai Group

  ASU

  Challenge Community Services

  HSU

  NDS

[11] On 31 August 2021, the Commission published Background Paper 3 which summarised the submissions filed in respect of the following outstanding issues:

  Damaged clothing

  Remote response

  Broken shifts – quantum of allowances, and

  Matters arising from the August 2021 Decision.

[12] The hearing in respect of these matters took place on 1 September 2021. The transcript of that hearing is available here.

[13] On 3 September 2021 we issued a Statement 7 (September 2021 Statement) concerning the residual issues in respect of broken shifts. We return to that Statement in section 5 of this decision.

[14] This decision is to be read in conjunction with the May 2021 Decision and the August 2021 Decision.

[15] This decision deals with the following outstanding issues:

  Matters arising from the August 2021 Decision

  Damaged clothing

  Remote response, and

  Broken shifts.

[16] In the next 4 sections of our decision we set out our reasons for deciding to vary the SCHADS Award in the following ways:

Matters arising from the August 2021 Decision

1. Save for 2 matters, we confirm our provisional view regarding the particular characteristics of the transitional arrangements that will apply to minimum payments for part-time employees (set out at [129] – [130] of the August 2021 Decision). The 2 changes we have decided to make are:

  clause 10.5A(a) provides that the transitional arrangement applies to agreements under clause 10.3(c) which were made ‘before 1 March 2022’, we decided to alter this date to 1 February 2022; and

  clause 10.5A(c) provides for employees to be given ‘28 days’ notice’ in writing of a unilateral alteration to their agreed pattern of work, we decided to extend the period of notice to 42 days’ (6 weeks).

2. A number of technical amendments were made to the revised draft determination:

  As proposed by ABI, replace clause 10.3(f) with the following:

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

  A number of minor amendments to clauses 25.5(f) and 25.6 (as proposed by the HSU).

Damaged Clothing

3. The SCHADS Award will be varied to include the following terms:

20.3 Laundering of clothing other than uniforms

(a) If during any day or shift, the clothing of an employee (other than a uniform) is soiled in the course of the performance of their duties, the employee will be paid a laundry allowance of 32 cents per shift provided that:

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

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

20.4 Repair and replacement of clothing other than uniforms

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

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

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

(iii) The damage or soiling of an employee’s clothes is not caused by the negligence of the employee.

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

Remote Response

4. The SCHADS Award will be varied to include the following terms:

25.10 Remote work

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

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

(i) not part of their ordinary houses of work rostered in accordance with clause 25.5 (or, in the case of casual employees, not a designated shift); and

(ii) not additional hours worked by a part-time employee under clause 28.1(b)(iii) or 10.3(e) or overtime contiguous with a rostered shift; and

(iii) not required to be performed at a designated workplace.

(c) Minimum payments for remote work

(i) Where an employee performs remote work they will be paid for the time spent performing remote work, with the following minimum payments applying:

(A) where the employee is on call between 6.00am and 10.00pm – a minimum payment of 15 minutes’ pay;

(B) where the employee is on call between 10.00pm and 6.00am – a minimum payment of 30 minutes’ pay;

(C) where the employee is not on call - a minimum payment of one hour’s pay;

(D) where the remote work involves participating in staff meetings or staff training remotely - a minimum payment of one hour’s pay.

(ii) Any time worked continuously beyond the minimum payment period outlined above will be rounded up to the nearest 15 minutes and paid accordingly.

(iii) Where multiple instances of remote work are performed on any day, separate minimum payments will be triggered for each instance of remote work performed, save that where multiple instances of remote work are performed within the applicable minimum payment period, only one minimum payment period is triggered.

(d) Rates of pay for remote work

(i) Remote work will be paid at the employee’s minimum hourly rate unless one of the following exceptions applies:

(A) Remote work is performed outside the span of 6am-8pm, it will be paid at the rate of 150% of the minimum hourly rate for the first two hours and 200% of the minimum hourly rate thereafter or, in the case of casual employees, at 175% of the minimum hourly rate for the first two hours and 225% of the minimum hourly rate thereafter;

(B) Remote work performed in excess of 38 hours per week or 76 hours per fortnight, it will be paid at the applicable overtime rate prescribed in clause 28.1;

(C) Remote work performed in excess of 10 hours per day, it will be paid at the rate of 150% of the minimum hourly rate for the first 2 hours and 200% of the minimum hourly rate thereafter; or in the case of casual employees, 175% of the minimum hourly rate for the first 2 hours and 225% of the minimum hourly rate thereafter;

(D) Remote work performed on a Saturday will be paid at the rate of 150% of the minimum hourly rate or, in the case of casual employees, 175% of the minimum hourly rate;

(E) Remote work performed on a Sunday will be paid at the rate of 200% of the minimum hourly rate or, in the case of casual employees, 225% of the minimum hourly rate;

(F) Remote work performed on a public holidays, it will be paid at the rate of 250% of the minimum hourly rate or, in the case of casual employees, 275% of the minimum hourly rate.

(ii) The rates of pay in clause 25.10(d)(i) above are in substitution for and not cumulative upon the rates prescribed in clauses 26, 28, 29, and 34.

(e) Other requirements

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

(f) Miscellaneous provisions

(i) In this clause, the term ‘minimum hourly rate’ means the weekly rates prescribed by clauses 15, 16 and 17 (as applicable) divided by 38.

(ii) Where remote work is performed, the minimum payments at clause 10.5 do not apply.

(iii) The performance of remote work will not count as work or overtime for the purpose of the following clauses:

(A) Clause 25.3 - rostered days off;

(B) Clause 25.4 - rest breaks between rostered work;

(C) Clause 28.3 - rest period after overtime;

(D) Clause 28.5 - rest break during overtime.

20.9 On call allowance

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

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

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

28.4 Recall to work overtime

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

Broken Shifts

5. We confirm our provisional view that the broken shift allowance for a 1 break broken shift will be 1.7% of the standard rate (currently $17.53).

6. We have decided to vary our provisional view with respect to the quantum of the broken shift allowance for a 2 break broken shift. The broken shift allowance for a 2 break broken shift will be set at 2.25% of the standard rate (currently $23.20).

7. We confirm our provisional view that we not express an opinion about the interaction of clauses 25.6 and 29.4 of the Award and whether the Award currently permits an afternoon or night shift (as defined by clause 29.2) to be broken in accordance with clause 25.6 of the Award.

8. The SCHADS Award will be varied to include 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, overtime and public holiday penalty rates to be paid in accordance with clauses 26, 28 and 34.

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

(i) The night shift allowance is not payable for work performed on a night shift that commences before 6.00 am.

(ii) The shift allowances are only payable in respect of periods of work in a broken shift that satisfy the definitions of afternoon shift, night shift and public holiday shift (as defined by clause 29.2 and in accordance with clause 25.6(e)(i)).

Example: If an employee performs work on a broken shift from 9:00 am – 11:00am (first period of work) and then from 5:30pm – 8:30pm (second period of work), the afternoon shift allowance will be payable on the second period of work only.

(f) The span of hours for a broken shift is up to 12 hours. All work performed beyond a span of 12 hours will be paid at double time.

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

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

2. Matters arising out of the August 2021 Decision

2.1 General

[17] There are 2 matters arising from the August 2021 Decision about which parties were provided an opportunity for comment:

1. The provisional view regarding the particular characteristics of transitional arrangements that will apply to minimum payments for part-time employees (set out at [129] and [130] of the August 2021 Decision).

2. Any technical amendments to the revised draft determination set out at Attachment 1 to the August 2021 Decision (the Revised Draft Determination).

2.2 Transitional arrangements in relation to minimum payments to part-time employees

[18] In the August 2021 Decision we decided that the determination arising from the decision would include a transitional arrangement applying to minimum payments for part-time employees.

[19] We expressed the provisional view that such a 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’ 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.

[20] A draft term giving effect to this provisional view (as set out at [130] of the August 2021 Decision) 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.’

[21] Interested parties were invited to comment on our provisional view and the draft term in the reply submissions to be filed on 30 August 2021.

[22] The ASU submits that the Commission should adopt the provisional view as to the characteristics of the transitional arrangement save that the transitional arrangements should commence on 1 January 2021 and should only apply to employment arrangements made before 1 January 2021. 8 The ASU also proposes a number of amendments to the draft term.

[23] The draft term provides that the transitional arrangements commence operation on 1 March 2022 and that employment agreements entered into after this date are not subject to the transitional arrangements (see clause 10.5A(a) of the proposed term above). As to this element of the proposed term the ASU submits:

‘There is inherent logic in the Commission’s provisional view that the operative date of the clause should also limit the applicability of the transitional arrangements. At a certain point after the determination of the matter, but before the operative date of the decision, an employer will have had sufficient notice of the variation to the minimum payment term that if they make new working arrangements where employees are required to work for a short period than the minimum payment, that is their informed choice and they should live with the consequences.’ 9

[24] The ASU then submits that 1 January 2022, not 1 March 2022, is the appropriate date ‘because the transitional arrangements should capture fewer employment arrangements and should allow more time for negotiation’. 10 In support of this position the ASU submits:

‘The minimum payment periods were decided in the May Decision. Employers have been on notice that these minimum payments would be applied at some time in the near future since that time even if they did not know the exact operative date of the decision. They can, and should, have been preparing to implement the decision. At this point the unfairness to the employee of entering into an employment arrangement that may be unilaterally altered within six months should outweigh any possible unfairness to an employer that they would have to pay them more than the time they are engage to work.

Additionally, a longer transitional period before the operative date of the decision is desirable. If the transitional arrangements commence in March 2022, then employers and employees would have a much short period of time to negotiate new arrangements before unilateral variations were made. A longer transitional period before the operative date would employers to negotiate with the employees without rushing. This may mean fewer unilateral variations are notified under clause 10.5A(c).’ 11

[25] We expressed the provisional view that the transitional arrangements term should impose an obligation to consult and negotiate in good faith regarding changes to the agreed pattern of work.

[26] The draft term seeks to implement that provisional view at proposed clause 10.5A(b), which states:

‘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.’

[27] The ASU supports this provisional view but contends that the draft term does not fully reflect the provisional view:

‘However, the Draft Determination does not fully reflect the provisional view. There is no obligation to consult an employee before giving notice of a new working arrangement under clause 10.5A(c). The draft term only obliges an employer to discuss the minimum payment requirements with an employee and genuinely seek agreement for a change to an agreement made under 10.3(c).’ 12

[28] The ASU contends that in the context of the proposed clause 10.5A, ‘seeking agreement is a distinct concept from consultation.’ 13 The ASU submits that this is a significant distinction because there is no obligation under clause 10.5A(c) that:

  there be any connection between the notified working arrangements and those discussed with the employee while genuinely seeking agreement under clause 10.5(b); or

  the working arrangements imposed by clause 10.5A(c) accommodate the employee’s specific circumstances.

[29] The ASU also submits that the draft term does not place any limitations on the characteristics of the working arrangement that may be notified to the employee. In particular, the ASU submits that the notified working arrangement could possibly: 14

  increase or decrease the employee’s guaranteed weekly hours of work

  change the employee’s days of work

  increase or decrease the number of days on which the employee works

  change the employee’s starting and finishing times, and

  notify hours of work at times when the employee is unavailable.

[30] In these circumstances the ASU submits:

‘the risk to the employee is that they will be required to accept completely novel working arrangements that may not accommodate their circumstances.’ 15

[31] To address this concern the ASU proposes 2 specific amendments to the draft term by inserting the following:

(b) before taking any action under clause 10.5A(c) or 10.5A(d), an employer must give an employee written notice that they are an employee to whom clause 10.5A applies.

(e) Clause 8A applies if an employer proposes to give notice under clause 10.5A(d).

[32] The ASU advances 2 points in support of the proposed changes: 16

1. Regular and stable hours of work are important to part-time employees. In particular, regular and stable part-time hours of work allow people with caring responsibilities, who are more commonly women, to reconcile their work and family commitments. Many working parents will structure their hours of work around the availability of formal childcare and informal childcare (such as a grandparent). Affordable, convenient and suitable formal childcare is not necessarily available at short notice. If the employer changes a parent’s days of work or starting and finishing times, they may not be able to find alternative child care arrangements within the 28-day notice period. Some employees may simply quit their employment. A significant proportion of disability workers are women, so this issue is likely to arise.

2. Part-time employees may have other employment, including elsewhere in the disability or home care sectors. Employees may therefore be subject to conflicting notices under clause 10.5A.

[33] The ASU also proposes 2 further changes to the proposed term:

1. Increase the notice period in clause 10.5A(c) from 28 days to 84 days.

2. Include a dispute settling procedure that would permit the Commission to arbitrate the dispute.

[34] As to the first proposed change, the ASU submits:

‘The 84-day notice period (12 weeks or roughly 3 months) would allow more time for an employee to make alternative arrangements for medical, caring and educational obligations as well and negotiate with other employers about their hours of work. It strikes a better balance between the interests of employers and employees. If the transitional arrangements commence on 1 January 2022 as proposed by the ASU, then there will be plenty of time before the variations commence operation to make orders.’ 17

[35] As to the inclusion of a power to arbitrate a dispute, the ASU submits:

‘If the employer is to be given a power to unilaterally vary the hours of work of an employee who otherwise would be guaranteed that those hours of work would not change without their agreement, there should be a disputes settling procedure. This should include an express power for the FWC to arbitrate the matter. This would not be an exercise of the Commonwealth’s judicial power, because it would be based in the consent of the employer and the employee. The employer can be said to consent to arbitration because it would have been on notice under this provision that the FWC had power to arbitrate. An employer would not be obliged to use s 10.5A(c) because it could take a number of steps to avoid using the term. It could simply pay whatever was owed to the employee under the new minimum payment terms, it could restructure its business, or it could continue negotiations for a new agreeable pattern of work.’ 18

[36] The ASU’s proposed amendments to the draft term are set out below, in mark up:

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

Clause 10.5A operates from 1 March January 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 January 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) before taking any action under clause 10.5A(c) or 10.5A(d), an employer must give an employee written notice that they are an employee to whom clause 10.5A applies.

(b)(c) 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)(d) 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 2884 days’ notice to the employee in writing.

(e) Clause 8A applies if an employer proposes to give notice under clause 10.5A(d).

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

(h) The Fair Work Commission may deal with a dispute about a notice given under clause 10.5A(d), including mediation or conciliation, by making a recommendation or expressing an opinion, or by arbitration.

(f)(i) 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.’

[37] The HSU supports the ASU’s submission and the changes proposed to the draft term with one exception. For the reasons set out at [4]–[12] of the HSU’s submissions, the HSU proposes that the transitional arrangements only apply to employment arrangements made before 1 October 2021. In particular, the HSU seeks the following amendment to proposed clause 10.5A(a):

(a) Clause 10.5A applies in relation to agreements made under clause 10.3(c) before 1 March 2022October 2021, 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.’

[38] In its submission of 30 August 2021, the NDS submits that it has no objection to proposed clause 10.5A. 19

[39] In Background Paper 3, the Commission posed the following questions to the employer parties in respect of proposed transitional arrangements: 20

  Question for ABI, AFEI, Ai Group and NDS: Do you contest the provisional view regarding transitional arrangements? Do you have any comments in respect of the draft term?

  Question for parties other than the ASU and HSU: What do you say in response to the amendments to proposed clause 10.5A advanced by the ASU and HSU?

[40] Responses to these questions were provided during the course of oral hearing on 1 September 2021.

[41] The various employer interests support, or at least do not oppose, our provisional view and do not propose any amendments to the draft term. As to the proposed transitional term, ABI submits:

‘We think it’s fair and reasonable and appropriate and resolves the concerns or issues our clients raised on the last occasion.’ 21

[42] The employer interests oppose the specific amendments to the draft term proposed by the Unions. 22

[43] Save for 2 matters we confirm our provisional view. The 2 matters concern the scope of the transitional arrangement and the period of notice required to be given to employees in respect of a unilateral alteration to their agreed pattern of work.

[44] As to the first matter, clause 10.5A(a) provides that the transitional arrangement applies to agreements under clause 10.3(c) which were made ‘before 1 March 2022’. We have decided to alter this date to 1 February 2022. This change will ensure that employers are given sufficient notice of the variation to the minimum term while also allowing the ‘space’ to provide some additional notice to employees of any unilateral alteration in their agreed hours.

[45] Contrary to the Union submissions we are not persuaded that an application date earlier than 1 February 2022 would provide a fair and balanced transitional arrangement.

[46] As to the second matter, we propose to alter the notice provision. Clause 10.5A(c) provides, relevantly, for employees to be provided ‘28 days’ notice’ in writing of a unilateral alteration to their agreed pattern of work. We have decided to extend the period of required notice to 42 days’ (6 weeks). We accept that employees need as much notice as practicable to adjust their caring responsibilities and other activities to the altered pattern of work.

[47] In combination these 2 changes provide both a longer transition period, thus providing more time to negotiate new arrangements, and greater notice to employees in the event that unilateral variations are necessary. In our view, having regard to the matters set out in the May 2021 decision and the August 2021 decision dealing with the s.134 considerations in relation to minimum payment for part-time employees, we are satisfied that the above transitional amendments are necessary.

[48] We are not persuaded that the other amendments proposed by the ASU are necessary, in short:

  the purported distinction between seeking agreement and consultation is, in the context of clause 10.5A, illusory given that clause 10.5A(b) provides that an employer ‘must discuss the relevant minimum payment requirements with the employee and genuinely try to reach an agreement on a variation that … will reasonably accommodate the employee’s circumstances’

  the provision of a written notice to an employee stating that they are an employee to whom clause 10.5A applies imposes an unnecessary regulatory burden

  the express application of clause 8A is unnecessary, and

  the inclusion of a power to arbitrate a dispute, in the terms proposed, is beyond power (see ss 595 and 739 of the Act).

2.3 Technical amendments to the Revised Draft Determination

[49] In the August 2021 Decision we stated that we wished to provide an opportunity for interested parties to comment on any technical amendments to the Revised Draft Determination at Attachment 1 to that decision, but noted that this was:

‘… 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.’ 23

[50] During the course of the hearing on 1 September 2021, ABI and the HSU proposed particular amendments to the Revised Draft Determination. After the hearing we issued the following directions:

Revised Draft Determination

1. ABI is to file its proposed amendment to clause 10.3(f) and a short note in support of the proposed amendment by 4.00pm on Thursday 2 September 2021.

2. HSU is to file its proposed amendment to clause 25.5(f)(v) and 25.6(b)(ii) and a short note in support of the proposed amendments by 4.00pm on Thursday 2 September 2021.

3. Other parties are to file any written reply to the submissions filed pursuant to Directions 3 and 4, by 4.00pm on Wednesday 8 September 2021.

4. ABI and HSU are to provide any written reply to the submissions filed pursuant to the Direction 5, by 4pm on Friday 10 September 2021.

5. All submissions should be filed in both PDF and Word document formats, via email to amod@fwc.gov.au.’

[51] The following submissions were received:

  ABI (2 September 2021)

  AFEI (8 September 2021)

  HSU (1 September 2021)

  NDS (8 September 2021).

2.3.1 ABI’s proposed amendment to clause 10.3(f)

[52] ABI notes that there appears to be a disconnect between the terms of the Revised Draft Determination and the provisional view we expressed in the May 2021 Decision at [987]; that the Award makes it clear that working additional hours is voluntary. Item 1 of the Revised Draft Determination proposes a new clause 10.3(f) which provides:

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

[53] ABI submits that the current wording of the Revised Draft Determination fails to give effect to our provisional view because it relates to ‘agreed changes’ under clause 10.3(e) rather than ‘additional hours’. 24 ABI proposes the following alternate drafting:

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

[54] The NDS supports the amendments proposed by ABI in respect of clause 10.3(f) and AFEI does not oppose the suggested amendment. 25 No submissions were received from the Unions in respect of ABI’s proposal.

[55] We agree that there is a disconnect between the terms of the Revised Draft Determination and the provisional view expressed in the May 2021 Decision. We also agree that ABI’s proposed amendment addresses this issue and we will amend the draft determination accordingly.

2.3.2 The HSU’s proposed amendments to clauses 25.5(f) and 25.6

[56] The HSU filed a submission proposing several minor amendments to clauses 25.5(f) and 25.6, as follows: 26

1. Changes to Client Cancellation at 25.5(f)(v) to ensure the applicability of payment under clause 25.5(f)(iv)(A) is triggered where a minimum of 12 hours’ notice of a cancelled service has not been provided by the employer.

2. Corrections to a minor typographical error at 25.5(f)(vi)(B) by inserting the word ‘be’.

3. Changes to Broken Shifts at 25.6(b)(ii) by either:

(a) referring to 10.3(e) (which makes provisions for variations to agreed work patterns and hours made under clause 10.3 generally), or

(b) referring to agreements made or varied in accordance with clause 10.3.

[57] The NDS supports the amendments in respect of clauses 25.5(f) and 25.6(b)(ii) proposed by the HSU and AFEI does not oppose the amendments proposed. 27 No other party made a submission.

[58] In our view most of the amendments proposed clarify the operation of clause 25.5(f) and we will amend the draft variation accordingly. We do not propose to vary clause 25.6(b)(ii) to refer to variations made under clause 10.3 or 10.3(e) as an agreement made under 10.3 may also be varied by new clause 10.5A.

3. Damaged Clothing

[59] In the May 2021 Decision, we concluded that ‘an award variation is warranted to provide for the reimbursement of reasonable costs associated with the cleaning or replacement of personal clothing which has been soiled or damaged in the course of employment.’ 28

[60] The parties were directed to confer about the form of a suitable variation. The issue was also discussed at conferences held on 27 May and 19 August 2021.

[61] The parties’ discussions were productive and most parties agree that the SCHADS Award should be varied to include the following terms: 29

20.3 Laundering of clothing other than uniforms

(a) If during any day or shift, the clothing of an employee is soiled in the course of the performance of their duties, the employee will be paid the daily laundry allowance under clause 20.2(b) per day or shift provided that:

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

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

20.4 Repair and replacement of clothing other than uniforms

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

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

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

(iii) The damage or soiling of an employee’s clothes is not caused by the negligence of the employee.

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

[62] In advancing the above proposal, Ai Group submits that it: 30

(a) addresses the various views we expressed in the May 2021 Decision in relation to damaged clothing

(b) provides a level of compensation for laundering of soiled clothing that is aligned with the approach adopted under clause 20.2 of the Award in relation to the laundering of uniforms

(c) will require reimbursement of reasonable costs incurred in repairing clothing or replacing with a substitute item of clothing

(d) includes sensible notice and evidence requirements relating to the relevant factual matters that give rise to the obligation to make the payments contemplated by the clause incorporates a level of flexibility in relation to such matters, and

(e) limits an employer’s liability to cover the costs of damage to clothing that has occurred where an employee has not complied with reasonable requirements of the employer in relation to the wearing of personal protective equipment or negligence.

[63] The proposed variation is supported by Ai Group, AFEI; 31 NDS;32 ASU;33 HSU;34 and UWU.35 It is convenient to refer to the proposed variation as the ‘Joint Proposal’.

[64] In its reply submission ABI also supported the proposed variation, subject to what it characterised as ‘very minor technical drafting amendments.’ 36 In particular, ABI proposes that the reference to a ‘daily’ allowance in clause 20.3(a) be removed, given that the allowance payable under clause 20.2(b) of the Award is not expressed as a daily allowance. ABI’s proposed amendments are set out in mark-up below:

20.3 Laundering of clothing other than uniforms

(a) If during any day or shift, the clothing of an employee (other than a uniform) is soiled in the course of the performance of their duties, the employee will be paid the daily laundry allowance under clause 20.2(b) per day or shift provided that:

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

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

20.4 Repair and replacement of clothing other than uniforms

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

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

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

(iii) The damage or soiling of an employee’s clothes is not caused by the negligence of the employee.

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

[65] ABI’s proposed amendments to the Joint Proposal were the subject of submissions during the hearing on 1 September 2021. 37 During the course of the hearing a consensus emerged that the introductory words in proposed clause 20.3(a) be amended as follows:

‘(a) If during any day or shift, the clothing of an employee (other than a uniform) is soiled in the course of the performance of their duties, the employee will be paid a laundry allowance of 32 cents per shift provided that …’

[66] The other amendment proposed by ABI (to proposed clause 20.4(b)) was agreed.

[67] In our May 2021 Decision, we considered the evidence in relation to this issue and agreed with ABI’s contention that the evidence suggests that it is common for support workers in the disability services sector to not wear uniforms when undertaking work. Further, we concluded that it is likely that some employees will have their clothing damaged or soiled because of the work they are required to undertake. A mentioned earlier, we concluded that ‘an award variation is warranted to provide for the reimbursement of reasonable costs associated with the cleaning or replacement of personal clothing which has been soiled or damaged in the course of employment’. 38

[68] The merits favour the variation of the SCHADS Award in the manner proposed above. We shall amend the Revised Draft Determination to include the Joint Proposal with amendments discussed at [65] and [66] above.

[69] We now turn to the s.134 considerations.

[70] Section 134(1)(a) of the Act requires that we consider ‘relative living standards and the needs of the low paid’. A threshold of two-thirds of median full-time wages provides a suitable benchmark for identifying who is ‘low paid’, within the meaning of s.134(1)(a). A proportion of employees covered by the SCHADS Award may be regarded as ‘low paid’ within the meaning of s.134(1)(a) of the Act.

[71] The ‘needs of the low paid’ is a consideration which weighs in favour of the variation we propose to make. The proposed variation compensates employees for costs associated with the cleaning and replacement of personal clothing soiled or damaged in the performance of their duties.

[72] Section 134(1)(b) requires that we consider ‘the need to encourage collective bargaining’. We are not persuaded that the proposed variation would ‘encourage collective bargaining’, it follows that this consideration does not provide any support for the proposed variation.

[73] Section 134(1)(c) requires that we consider ‘the need to promote social inclusion through increased workforce participation’. Obtaining employment is the focus of s.134(1)(c).

[74] The impact of the proposed variation on total employment is unlikely to be significant. We regard this consideration as neutral.

[75] Section 134(1)(f) of the Act requires that we consider ‘the likely impact of any exercise of modern award powers on business, including on productivity employment costs and the regulatory burden’. We accept that the variation proposed will increase employment costs and the regulatory burden; though not to a significant extent. This consideration weighs against the proposed variation.

[76] The considerations in s.134(1)(c), (d), (da), (e), (g) and (h) of the Act are not relevant in the present context.

[77] 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 sections 134(1)(a)–(h). We have taken into account those considerations insofar as they are presently relevant and have decided to vary the SCHADS Award as proposed above. We are satisfied that this variation is necessary to ensure that the SCHADS Award achieves the modern awards objective.

4. Remote Response

4.1 General

[78] Clause 28.4 of the SCHADS Award deals with ‘Recall to work overtime’ and states:

28.4 Recall to work overtime

An employee recalled to work overtime after leaving the employer’s or client’s premises will be paid for a minimum of two hours’ work at the appropriate rate for each time so recalled. If the work required is completed in less than two hours the employee will be released from duty.’

[79] Clause 20.9 of the Award, ‘On call allowance’, states:

20.9 On call allowance

(a) An employee required by the employer to be on call (i.e. available for recall to duty) will be paid an allowance of 2.0% of the standard rate in respect to any 24 hour period or part thereof during the period from the time of finishing ordinary duty on Monday to the time of finishing ordinary duty on Friday.

(b) The allowance will be 3.96% of the standard rate in respect of any other 24 hour period or part thereof, or any public holiday or part thereof.’

[80] The current on-call allowances in the SCHADS Award are $20.63 (clause 20.9(a)) and $40.84 (clause 20.9(b)).

[81] One of the issues raised during the Review was how the SCHADS Award operates in circumstances where an employee, who is not ‘at work’ or otherwise rostered to work or performing work at a particular time, is contacted and required to undertake certain functions remotely without physically attending the employer’s premises (such as providing information to the employer over the telephone). It is convenient to refer to such work as ‘remote response work’.

[82] The SCHADS Award does not currently directly address work performed outside of ordinary hours that does not require travel to a physical workplace.

[83] There were initially 3 claims in respect of remote response and recall to work overtime by ABI, the HSU and ASU. The ABI claim went through several different iterations and, the HSU subsequently withdrew its claim.

[84] The various claims were considered in the May 2021 Decision and the following findings were made in respect of this issue: 39

1. Employees covered by the SCHADS Award are requested or required, from time to time, to perform ‘remote work’ (i.e. work away from the workplace) at times outside of their rostered working hours.

2. Given the nature of the SCHADS sector, it is necessary to have arrangements in place for out of hours work.

3. Employers have different practices in place for ensuring that employees are available to receive calls or otherwise respond to emergencies or other inquiries or issues that may arise. 

4. There is disutility associated with performing work outside of ordinary hours in circumstances where the employee is not recalled to a physical workplace (i.e. remote response work).

[85] We concluded that the evidence did not support any findings beyond these general propositions.

[86] At [722] of the May 2021 Decision we concluded that it was necessary to introduce a term dealing with remote response work and made the following general observations about such a term:

‘1. A shorter minimum payment should apply in circumstances where the employee is being paid an ‘on call’ allowance.

2. There is merit in ensuring that each discrete activity (such as a phone call) does not automatically trigger a separate minimum payment.

3. A definition of ‘remote response work’ or ‘remote response duties’ should be inserted into the Award. We note that ABI proposes the following definition:

‘In this award, remote response duties means the performance of the following activities:

(a) Responding to phone calls, messages or emails;

(b) Providing advice (“phone fixes”);

(c) Arranging call out/rosters of other employees; and

(d) Remotely monitoring and/or addressing issues by remote telephone and/or computer access.’

4. The clause should include a mechanism for ensuring that the time spent by an employee working remotely is recorded and communicated to their employer.’

[87] At [730] of the May 2021 Decision we said:

‘As mentioned earlier, we accept that there is disutility associated with performing remote response work. However, the level of disutility associated with employees performing remote response work is less than that experienced by employees who are recalled to a physical workplace or who are ‘on call’ to be recalled to work, as employees are not required to:

  stay in the vicinity of the workplace while on-call

  keep themselves, their work clothes and transport in a state of readiness while on-call for a possible recall to work

  spend time travelling to or from the workplace if recalled to work, or

  incur additional travelling expenses (such as public transport fares, petrol or road tolls) if recalled to work.’

[88] At [732] of the May Decision, we stated that we were not persuaded that ‘the ASU’s proposed minimum payments are warranted.’ The ASU’s proposal required that all remote response work be paid at overtime rates and that if the employee is not ‘on-call’ (and hence not receiving an ‘on-call’ allowance) they are paid overtime rates for a minimum of 2 hours. If they are ‘on-call’ the minimum payment proposed was one hour at overtime rates.

[89] We stated that we saw the logic inherent in the structure of ABI’s minimum payment regime but took a different view as to the minimum periods prescribed. We expressed the provisional view that the minimum payment for remote response work performed between 6am and 10pm should be 30 minutes and that the minimum payment between 10pm and 6am should be 1 hour. We noted however, ‘that there is an inter-relationship between the minimum payment period and the rate of payment.’ 40

4.2 The proposals

4.2.1 The Joint Proposal

[90] The form of a remote response term has been the subject of on-going discussions between the parties. These discussions have been productive and with one exception, most of the parties have reached agreement as to the content of a ‘remote work’ clause, as well as the consequential amendments to existing clauses 20.9 and 28.4 of the SCHADS Award.

[91] In correspondence dated 23 August 2021, ABI set out the terms of the parties’ agreement. 41

[92] The parties to the agreement are ABI, NDS, and the Unions (collectively, the Joint Parties).

[93] The Joint Parties support the variation of the SCHADS Award to insert a new clause 25.10 as follows:

25.10 Remote work

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

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

(i) not part of their rostered working hours (or, in the case of casual employees, not a designated shift); and

(ii) not additional hours worked by a part-time employee under clause 28.1(b)(iii) or 10.3(e) or overtime contiguous with a rostered shift; and

(iii) not required to be performed at a designated workplace.

(c) Minimum payments for remote work

(i) Where an employee performs remote work they will be paid for the time spent performing remote work, with the following minimum payments applying:

A. where the employee is on call between 6.00am and 10.00pm – a minimum payment of 15 minutes’ pay;

B. where the employee is on call between 10.00pm and 6.00am – a minimum payment of [to be determined];

C. where the employee is not on call - a minimum payment of one hour’s pay;

D. where the remote work involves participating in staff meetings or staff training remotely - a minimum payment of one hour’s pay.

(ii) Any time worked continuously beyond the minimum payment period outlined above will be rounded up to the nearest 15 minutes and paid accordingly.

(iii) Where multiple instances of remote work are performed on any day, separate minimum payments will be triggered for each instance of remote work performed, save that where multiple instances of remote work are performed within the applicable minimum payment period, only one minimum payment period is triggered.

(d) Rates of pay for remote work

(i) Remote work will be paid at the minimum hourly rate unless one of the following exceptions applies:

A. Where remote work is performed outside the span of 6am-8pm, it will be paid at the rate of 150% for the first two hours and 200% thereafter or, in the case of casual employees, at 175% for the first two hours and 225% thereafter;

B. Where the remote work results in an employee working in excess of 38 hours per week or 76 hours per fortnight, it will be paid at the applicable overtime rate prescribed in clause 28.1;

C. Where the remote work results in an employee working in excess of 10 hours per day, it will be paid at the rate of 150% for the first two hours and 200% thereafter;

D. Where remote work is performed on Saturdays, it will be paid at the rate of 150% or, in the case of casual employees, 175%;

E. Where remote work is performed on Sundays, it will be paid at the rate of 200% or, in the case of casual employees, 225%;

F. Where remote work is performed on public holidays, it will be paid at the rate of 250% or, in the case of casual employees, 275%.

(ii) The rates of pay in clause 25.10(d)(i) above are in substitution for and not cumulative upon the rates prescribed in clauses 26, 28, 29, and 34.

(e) Other requirements

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

(f) Miscellaneous provisions

The performance of remote work will not count as work or overtime for the purpose of the following clauses:

(i) Clause 25.3 - rostered days off;

(ii) Clause 25.4 - rest breaks between rostered work;

(iii) Clause 28.3 - rest period after overtime;

(iv) Clause 28.5 - rest break during overtime.’

[94] For convenience we refer to the Joint Parties’ proposed term as the ‘Joint Proposal’.

[95] At [22] of its submission dated 25 August 2021, ABI makes the following observations in relation to the Joint Proposal and how it is intended to operate:

‘(a) The proposed clause 25.10 is intended to regulate circumstances where an employee, who is not ‘at work’ or otherwise rostered to work or performing work at a particular time, is required to perform work remotely without physically attending a designated workplace.

(b) Clause 25.10 is intended to apply (and is expressed to apply) where an employee is required by their employer to perform ‘remote work’ as defined by clause 25.10(b).

(c) The term ‘remote work’ was adopted in favour of ‘remote response work’, as the word ‘response’ was considered unnecessary, might not always be an accurate description of the work, and could cause confusion. In any event, the term ‘remote work’ is a defined term so the label that is used does not have any material impact on the scope of the clause. What is important is the definition rather than the label.

(d) Clause 25.10(b) contains a definition of ‘remote work’. In short, the definition is intended to capture circumstances where an employee performs work outside of their normal working hours and away from a designated workplace.

(e) The definition limits the clause to only such work that is performed ‘at the direction of, or with the authorisation of, their employer’. This is an important (and appropriate) element and will prevent an obligation to payment being triggered where an employee elects to perform duties outside of their working hours that were not required to be performed (or not required to be performed at that time).

(f) The definition caters for casual employees who might not have ‘ordinary’ or ‘normal’ or ‘rostered working hours’ by incorporating the notion of a ‘designated shift’ for casuals. We consider that this language clarifies how the clause applies for casual employees, in that ‘remote work’ is work that is not part of a casual’s ‘designated shift’.

(g) The definition also makes it clear that where an employee performs overtime that is contiguous with a rostered shift (e.g. a rostered shift extends past the scheduled finishing time), such work is not ‘remote work’.

(h) Equally, the definition makes it clear that where a part-time employee agrees to perform additional hours beyond their agreed pattern of work under clause 10, such additional hours are not ‘remote work’.

(i) Those provisions are appropriate safeguards to ensure that agreed additional hours for parttime employees do not lose the benefit of the applicable minimum engagement purely by the work being performed away from a designate workplace.

(j) This definition of ‘remote work’ is preferred to the definition originally proposed by our clients (which is reproduced at [722] of the Decision). The reason for this is that if a definition is created which is narrow and does not encapsulated all forms of work, it would lead to a situation where uncertainty would remain as to how certain duties that fell outside the definition was to be regulated.

(k) Consideration was given as to whether it was necessary to include a carve-out to the definition of ‘remote work’ to make it clear that ‘remote work’ does not include ‘the performance of personal tasks that are incidental to maintaining their employment’ (including things such as an employee reviewing or managing their own roster, communicating with their employer about their availability for work, or accepting additional hours, calling in sick, etc.). However, the parties to the agreed position formed the view that as such activities do not amount to the ‘performance of work’ within the general industrial meaning of that phrase, it was unnecessary to include such a carve-out. Certainly, it is not the parties’ intention for those incidental activities to constitute ‘remote work’ or trigger any entitlement under the clause.

(l) Turning to the payment provisions, clause 25.10(c) provides minimum payments or minimum payment periods for remote work. The quantum of the minimum payments depends on:

(i) whether or not the employee is on-call at the time the remote work is performed;

(ii) in the case of employees who are on-call, the time of the day the work is performed; and

(iii) whether the work constitutes participation in staff meetings and/or staff training.

(m) It is proposed that where employees who are not on call perform remote work, the applicable minimum payment will be one hour’s pay as set out in clause 25.10(c)(i)(C). This is consistent with the proposal advanced by our clients during the hearing (as reproduced at [659] of the Decision).

(n) Equally, where an employee participates in staff meetings and/or training in circumstances where they are not required to attend a designated workplace, it is proposed that the applicable minimum payment would be one hour’s pay as per clause 25.10(c)(i)(D).

(o) Where an employee is on call, the parties have agreed that the minimum payment should be 15 minutes’ pay where the work is performed between 6am and 10pm. This is an appropriate minimum payment and reflects the fact that employee is on-call and is being paid the on-call allowance.

(p) The parties have not reached agreement on the applicable minimum payment for remote work performed between 10pm and 6am by employees who are on-call. We address this matter in more detail at paragraphs 36-47 below.

(q) Clause 25.10(c)(ii) provides that where work is performed beyond the applicable minimum payment period, the time worked will be rounded up to the nearest 15 minutes.

(r) Clause 25.10(c)(iii) deals with how the minimum payments operate in circumstances where multiple instances of remote work are performed on any given day.

(s) Clause 25.10(d) deals with the rate of payment. The default position that has been adopted is that remote work will be paid at the applicable minimum rate of pay (based on the employee’s classification) unless one of the circumstances specified in clauses 25.10(d)(i)(A)-(F) applies.

(t) The scenarios at (A)-(F) reflect the existing rules in the Award. That is, remote work would be paid at a premium rate where:

(i) it is worked outside the span of 6am-8pm;

(ii) it results in an employee working in excess of 38 hours per week or 76 hours per fortnight;

(iii) it results in an employee working in excess of 10 hours per day;

(iv) it is performed on a Saturday, Sunday or public holiday.

(u) We consider those rules around the rate of payment to be appropriate and in keeping with the existing rules in the Award.

(v) Clause 25.10(d)(ii) contains interaction rules in respect of the premiums contained in the Award. In short, the rates of pay outlined in clause 25.10(d) will apply in substitution for and not cumulative upon the rates prescribed in clauses 26, 28, 29, and 34. This accords with the general approach adopted in the Award.

(w) Clause 25.10(e) requires an employee to maintain and provide to their employer a time sheet or other record acceptable to the employer specifying the time at which they commenced and concluded performing any remote work and a description of the work that was undertaken. The clause requires employees to provide such records within a reasonable period of time after the remote work is performed. Our clients consider this to be a sensible administrative provision to aid the effective operation of the provision.

(x) Lastly, clause 25.10(f) specifies certain interaction rules regarding clause 25.10. The clause makes it clear that the performance of remote work will not count as work or overtime for the purpose of clauses 25.3, 25.4, 28.3 and 28.5. This has the effect of ensuring that the performance of remote work does not disrupt rostering or prevent an employee from commencing work on the following day as rostered.’

[96] No party took issue with ABI’s observation about how the proposed clause is intended to operate. 42

[97] To facilitate the inclusion of a new ‘remote work’ provision, the Joint Parties also propose a consequential amendment to clause 28.4 which serves to clarify that clause 28.4 only applies where an employee ‘is recalled to work overtime after leaving the workplace and requested by their employer to attend a workplace in order to perform such overtime work’. In other words, the amendment to the existing clause 28.4 serves to confirm that where an employee performs remote work as defined by clause 25.10, clause 28.4 will not apply. A consequential amendment has also been proposed to clause 20.9 of the Award. 43

[98] A marked-up version of the proposed consequential amendment is set out below:

20.9 On call allowance

(a) An employee required by the employer to be on call (i.e. available for recall to duty at the employer’s or client’s premises and/or for remote work) will be paid an allowance of: 2.0% of the standard rate in respect to

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

(b) $40.84 The allowance will be 3.96% of the standard rate in respect of any other 24-hour period or part thereof on a Saturday, Sunday, or any public holiday or part thereof.

28.4 Recall to work overtime

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

[99] Background Paper 3 drew the parties’ attention to the fact that the proposed consequential amendments delete those parts of the existing provisions which express the quantum of the allowances as a percentage of the standard rate, raising an issue as to whether the proposed terms compliance with s.149 of the Act. Section 149 provides:

149 Automatic variation of allowances

If a modern award includes allowances that the FWC considers are of a kind that should be varied when wage rates in the award are varied, the award must include terms providing for the automatic variation of those allowances when wage rates in the award are varied.’

[100] During the course of the hearing on 1 September 2021 it was common ground that the reference to the percentages of the standard rate be reinstated in the 2 consequential amendments with the dollar amounts in brackets. 44

[101] ABI submits that the Joint Proposal provides a fair and reasonable minimum safety net of conditions for employees performing remote work. Further, ABI submits that the agreed position: 45

  is consistent with the observations we made in the May 2021 Decision at [721]–[722]

  adequately resolves our concerns around complexity in terms of the rate of pay issue (see [737]–[738] of the May 2021 Decision), and

  meets the modern awards objective.

[102] In respect of the proposed monetary payments contained in the Draft Determination, ABI notes that in the May 2021 Decision we observed that the determination of an appropriate monetary entitlement for remote response work involves an assessment of the value of the work and the extent of disutility associated with the time at which the work is performed. 46

[103] ABI notes that in relation to the value of work performed by employees when undertaking remote work, there was limited evidence before the Commission about the precise nature of the work that is performed by employees away from a designated workplace. However, the evidence tended to suggest that the work is generally of an administrative or operational nature, and includes such tasks as organising rostering, responding to operational queries, and providing phone advice to employees. 47 ABI submits:

‘As a general proposition, the evidence suggested that the value of work undertaken by employees performing ‘remote work’ is either equivalent to, or less than, the value of the work performed by the relevant employee whilst at work. Certainly, it is doubtful that an employee performing remote work would be expected to perform tasks beyond their skillset or classification level. On that basis, the value of work consideration would support an outcome where employees are paid at the applicable minimum hourly rate for their classification under the Award when performing remote work. The Draft Determination adopts this approach.

Turning to the disutility associated with remote work, the Full Bench has already determined that:

(a) the disutility is less than that experienced by employees who are recalled to a physical workplace; and

(b) the disutility is also less for employees who are not ‘on call’ as compared to those who are ‘on call’ to be recalled to a physical workplace.

Our clients would add a further point: the disutility associated with remote work is less than that for performing work in the normal manner (i.e. attending work as rostered). This is because employees are not required to get ready for work, get dressed in work clothing, travel to the workplace and travel home. On that basis, the disutility associated with remote work is arguably less than the disutility associated with working a rostered shift.

The only disutility associated with remote work is:

(a) the inconvenience of the prospect of having your leisure time disturbed (if you are on-call);

(b) the inconvenience of having your leisure time disturbed (if you are required to perform remote work); and

(c) the inconvenience of being required to perform remote work at unsocial hours (if you are required to perform work at unsocial hours).

The disutility at (a) above is appropriately compensated by way of an on-call allowance which is already a feature of the Award. No party sought to increase the quantum of the on-call allowance through the course of these proceedings.

The disutility at (b) above is addressed by establishing an appropriate quantum of the payment to be made to an employee for the time spent performing remote work. In this regard, we submit that the extent of the disutility is quite modest by reason of the fact that the work can be performed remotely via phone or email, and employees are:

(a) not required to attend the workplace to perform the work;

(b) not required to undertake the other usual incidental tasks associated with attending work (e.g. travelling to/from the workplace, getting dressed and ready for work, incurring travel costs, etc.); and

(c) in most cases, not required to perform work for more than a very short period of time (e.g. the evidence suggests that most form of remote work involve short phone calls or simple tasks that take a very short period of time to complete).

The disutility at (c) above is appropriately addressed by providing greater payments during the evening period.

Having regard to both the value of work consideration and the disutility consideration, our clients consider that the payment regime provided for in the Draft Determination strikes the appropriate balance.’ 48

4.2.2 Ai Group’s Remote Response Proposal

[104] Ai Group advances a separate proposal relating to remote work which opposes elements of the Joint Proposal and submits that, in various respects, the approach it proposes should be preferred.

[105] As a general proposition Ai Group submits:

‘the level of support or otherwise from employer groups for a particular proposed variation is not a determinative consideration. It should be the merit of the proposals advanced, as considered through the prism of the relevant statutory context, and s.134 in particular, that should sway the Full Bench’s deliberations. The clause that has the widest number of supporters should not be viewed as having inherently greater merit. Proposals should not be selected or preferred based upon their popularity.’ 49

[106] A major difference between Ai Group’s proposal and the Joint Proposal is the differing scope of activities that fall within the definition of ‘remote response work’. In the Ai Group initial proposal remote response work is defined as follows: 50

remote response work means the performance of work by an employee whilst not at a designated workplace if the employee has been directed or authorised by their employer to undertake such work in these circumstances…’

[107] Ai Group subsequently proposes that the definition it previously advanced be ‘slightly reworded and restructured’ by including the following as a separate paragraph after the sentence defining remote response work:

Remote response work does not include an employee’s performance of administrative tasks associated with maintaining their employment. For example, remote response work would not include any activity of an employee involving:

(a) communicating with their employer in order to indicate whether they are willing to work hours outside of their roster hours or undertake a shift which is broken twice in accordance with clause [X];

(b) responding to notification of cancelled shifts;

(c) responding to suggestions for make-up time for cancelled shifts in accordance with clause [X];

(d) engaging with any kind of online platform or electronic system in order to obtain or arrange when they will work; or

(e) reviewing or enquiring about their roster.’ 51

[108] Ai Group also proposes the following definition of the term ‘designated workplace’52

designated workplace means a place where work is performed in accordance with the requirements of an employee’s employer, other than an employee’s residence or such other location that the employee chooses to work.’

[109] The corresponding elements of the Joint Proposal are as follows:

25.10 Remote work

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

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

(i) not part of their rostered working hours (or, in the case of casual employees, not a designated shift); and

(ii) not additional hours worked by a part-time employee under clause 28.1(b)(iii) or 10.3(e) or overtime contiguous with a rostered shift; and

(iii) not required to be performed at a designated workplace.’

[110] Both proposals reflect a requirement that remote work be defined as work that is performed at the ‘direction’ or ‘authorisation’ of an employer. Both proposals seek to regulate payments for work that is undertaken at a ‘designated workplace’. Ai Group submits that a provision to this effect should be included in any variation to the Award. 53

[111] The Joint Parties propose that the term ‘remote work’ be utilised instead of ‘remote response work’54 Ai Group agrees with this proposal.55

4.2.3 Drafting issues between the two proposals

[112] In its submission, Ai Group identifies 11 other areas of difference between its proposal and the Joint Proposal; which are set out in Background Paper 3 at [87]–[125].

[113] During the course of the 1 September 2021 hearing, we made the following directions:

1. ABI and Ai Group are to file a joint report identifying any proposed drafting changes to the Joint Proposal (Joint Report). Ai Group is to provide a note identifying any remaining merit differences between its proposal and the Joint Proposal by 4.00pm (AEST) on Wednesday, 8 September 2021.

2. Other parties are to file a response to the Joint Report and note filed pursuant to Direction 1 by 4.00pm (AEST) on Friday, 10 September 2021.

[114] The Joint Report prepared by ABI and Ai Group notes that they have had productive discussions regarding the issues raised by Ai Group in relation to the Joint Proposal. 56 The Joint Report includes an Amended draft determination setting out the changes proposed by ABI and Ai Group to the remote response clauses contained in the Joint Proposal.

[115] Of the 11 issues or areas of difference discussed in Background Paper 3, the Joint Report prepared by ABI and Ai Group characterised 4 as ‘drafting’ issues, with the other 7 going to issues of merit.

[116] The 4 matters said to be ‘drafting issues’ are: 57

(a) Issue 2: the notion of a ‘designated shift’

(b) Issue 3: the interaction with clause 10.5

(c) Issue 5: issues relating to rates of pay, and

(d) Issue 8: the interaction between minimum payment provision and minimum rates provision.

[117] As a result of discussions with Ai Group, ABI proposes drafting changes to address 3 of the 4 ‘drafting issues’. 58

[118] Issue 2 concerned the definition of a ‘designated shift’. In particular, Ai Group had contended that the Joint Proposal did not make clear what constituted a designated shift in the context of a casual employee. 59 In relation to Issue 2, regarding the notion of a ‘designated shift’, ABI does not agree with the substance of the concerns raised by Ai Group and considers that the current drafting of the Joint Proposal is suitable and on that basis does not propose any drafting amendments in respect of this issue.60

[119] The proposed drafting changes in respect of the 3 other issues are dealt with below.

Issue 3: Interaction with clause 10.5

[120] The concern raised related to the potential for the proposed minimum payment provisions at clause 10.5 of the Award to apply to remote work. To resolve that concern, ABI proposes to insert a new subclause, at 25.10(f)(ii), to make it clear that the minimum payment provisions at clause 10.5 of the Award do not apply to ‘remote work’ as defined in clause 25.10, as follows: 61

‘Where remote work is performed the minimum payments at clause 10.5 do not apply.’

Issue 5: Issues relating to rates of pay

[121] Ai Group’s 2 concerns in respect of this issue are:

  the drafting of clauses 25.10(d)(i)(B) and (C), and

  the fact that clause 25.10(d) described rates as a percentage. 62

[122] In relation to the first point, the Joint Report prepared by ABI and Ai Group contends that the language in the Revised Draft Determination (‘results in an employee working’), ‘lacked precision and was unclear as to whether the premium rate would apply to all work performed or only that work which exceeded 38 hours per week, 76 hours per fortnight or 10 hours per day.’ 63 To address this issue, clauses 25.10(d)(i)(B) and (C) have been re-drafted to more clearly identify that the premium rate would only apply in respect of ‘remote work performed in excess of’ the relevant threshold, as follows:

(B) Where the remote work results in an employee working Remote work performed in excess of 38 hours per week or 76 hours per fortnight, it will be paid at the applicable overtime rate prescribed in clause 28.1;

(C) Where the remote work results in an employee working Remote work performed in excess of 10 hours per day, it will be paid at the rate of 150% of the minimum hourly rate for the first two hours and 200% of the minimum hourly rate thereafter or, in the case of casual employees, 175% of the minimum hourly rate for the first two hours and 225% of the minimum hourly rate thereafter;

[123] In relation to the second point, the words ‘of the minimum hourly rate’ have been inserted after each percentage in clauses 25.10(d)(i)(A) and (D)–(F) to clearly articulate how the quantum is to be calculated, as follows: 64

(A) Where rRemote work is performed outside the span of 6am-8pm, it will be paid at the rate of 150% of the minimum hourly rate for the first two hours and 200% of the minimum hourly rate thereafter or, in the case of casual employees, at 175% of the minimum hourly rate for the first two hours and 225% of the minimum hourly rate thereafter…

(D) Where rRemote work is performed on a Saturdays, it will be paid at the rate of 150% of the minimum hourly rate or, in the case of casual employees, 175% of the minimum hourly rate;

(E) Where rRemote work is performed on a Sundays, it will be paid at the rate of 200% of the minimum hourly rate or, in the case of casual employees, 225% of the minimum hourly rate;

(F) Where rRemote work is performed on a public holidays, it will be paid at the rate of 250% of the minimum hourly rate or, in the case of casual employees, 275% of the minimum hourly rate.

Issue 8: Interaction between minimum payment provision and minimum rates provision

[124] As summarised at [108] of Background Paper 3, Ai Group’s concern is in relation to the ‘various technical difficulties’ that are said to flow from the interaction between minimum rates and the minimum payment methodology adopted. This issue was also addressed during the hearing on 1 September 2021. 65

[125] ABI submits that while understanding the issues raised by Ai Group, it considers them to be directed towards the alleged complexity or substantive operation of the Joint Proposal rather than raising drafting issues. 66 On that basis ABI does not propose any drafting change in response to the issues raised by Ai Group.67

[126] To confirm the intended operation of the Joint Proposal, ABI submits that the way in which the Joint Proposal operates is as follows: 68

1. Where an employee performed remote work, they will be paid for the time spent performing remote work, subject to a minimum payment period.

2. A minimum payment period applies, so where the time worked is less than the applicable minimum period, the employee will be paid for the minimum period.

3. Remote work is paid at the employee’s minimum hourly rate unless a premium rate applies. The premium rates of pay in clause 25.10(d)(i) are expressed to be referable to, and only apply to, the performance of remote work. In other words, the premium rate would not apply to the entire minimum payment period unless remote work was performed for the entirety of that period.

Other amendments

[127] In addition to the issues addressed above, 3 other drafting changes are proposed.

(i) Standard rate

[128] It is proposed that clause 20.9(a) and (b) be amended to express the monetary entitlements as a percentage of the standard rate, with the applicable dollar amount included thereafter in brackets. 69

(ii) Use of the phrase “minimum hourly rate”

[129] The phrase ‘minimum hourly rate’ appears in clause 25.10(d) of the Joint Proposal and has also been included in clauses 25.10(d)(i) (A)-(F), for the reason explained above.

[130] The current Award does not use the term minimum hourly rate and only refers to weekly rates of pay in clauses 15, 16 and 17. The latest version of the Exposure Draft however, does contain the term ‘minimum hourly rate’. 70 ABI considers it appropriate to use the term but, for present purposes and to ensure the clause works with the current Award, proposes a new clause 25.10(f)(i) as follows:71

‘(i) In this clause, the term ‘minimum hourly rate’ means the weekly rates prescribed by clauses 15, 16 and 17 (as applicable) divided by 38.’

[131] It is envisaged that clause 25.10(f)(i) can be removed following the finalisation of the Exposure Draft for this Award and/or the conduct of the plain language redrafting process relating to the instrument.

(i) Drafting correction to clause 25.10(d)(i)(C)

[132] The casual rates of pay had inadvertently not been spelled out in the Joint Proposal; this has now been rectified.

[133] The drafting changes referred to above were incorporated into an ‘Amended Draft Determination’ attached to the Joint Report filed by ABI and Ai Group.

4.2.4 Ai Group’s remaining drafting concerns

[134] In a submission filed on 14 September 2021, Ai Group set out its remaining concerns regarding the drafting of the Joint Proposal which centre on 2 issues:

  the definition of ‘remote work’, and

  the rates of remuneration.

[135] The definition of ‘remote work’ has been clarified through the variations to clause 25.10(b)(i). However, Ai Group remains concerned that it is not clear what constitutes a ‘designated shift’ as contemplated in clause 25.10(b):

‘Some casuals will undoubtedly be engaged on an as needs basis and absent any formal rostering or scheduling arrangement that could be obviously described as a ‘designated shift’. We have addressed this issue in previous submissions.’ 72

[136] Further, Ai Group submits that the term ‘designated workplace’, used in clause 25.10(b)(iii), should be defined:

‘As currently framed, it is not clear who designates the workplace. It is also not clear that it would not include an employee’s home.’ 73

[137] Ai Group suggests the inclusion of the following definition:

designated workplace means a place where work is performed in accordance with the requirements of an employee’s employer, other than an employee’s residence or such other location that the employee chooses to work.’

[138] In respect of the rates of remuneration, Ai Group contends that the drafting of proposed clause 25.10 pertaining to the remuneration that the clause requires to be paid is ‘unclear or, at the very least, confusing’. 74

[139] Ai Group submits that it is unclear what occurs when the remote work traverses the relevant time periods which trigger the different minimum payment periods, and provides the following example to illustrate the point made:

‘If an employee is required to take a brief 5-minute call at 9.57pm what payment would be required? We would assume that a 15-minute minimum payment applies, but it might also be argued that a hour or 1-hour minimum payment applies (depending on whether ABI or the Unions’ position on clause 25.10(c)(i)(C) is adopted) given the work is partly performed after 10pm.’ 75

[140] Ai Group also questions the payment required where multiple instances of remote work occur at times that would attract different minimum payment periods is even less clear, as illustrated in the examples below:

‘(a) If an employee takes a 5-minute call at 9.52pm and then a 2-minute call at 10.02pm, what payment would be required? Again, we would assume that a 15-minute minimum payment applies, but it might also be argued that a hour or 1 hour minimum payment applies (depending on whether ABI or the Unions’ position on clause 25.10(c)(i)(C) is adopted) given the work is partly performed after 10pm.

(b) If an employee takes a 5-minute call at 9.52pm, a 2-minute call at 10.02pm on a 5 minute call at 11pm, what payment should apply? It is unclear to us how this would be determined.

(c) If an employee takes a 5-minute call at 9.52pm, a 2-minute call at 10.02pm and a 10 minute call at 11pm and a 5 minute call what payment should apply? It is unclear to us how this work be determined.’ 76

[141] Ai Group contends that clauses 25.10(c)(ii) and (iii) do not adequately deal with these issues:

‘…it is unclear whether clause 25.10(c)(ii) requires that the time be “worked continuously” for the entire duration of the minimum payment period for the provision to apply, or whether it might apply in circumstances where an instance of remote work triggers the minimum payment and then there is a separate instance of remote work that commences later in the minimum payment period but continues for a period beyond the end of the minimum payment period.

Clause 25.10(c)(iii) provides that “…where multiple instances of remote work are performed within the applicable minimum payment period, only one minimum payment period is triggered.” It is not however clear which minimum payment period is triggered.

In relation to clause 25.10(d)(i)(c) we observe that it is unclear how the ‘first two hours’ will be counted so as to determine when the higher rate applies…

Ai Group has, in effect, previously expressed a concern that in attempting to distil the Award’s various provisions relevant to determining the rates that will apply at a particular time in the manner contemplated by clause 25.10(d) would result in a loss of some of the subtleties of the Award’s operation... In particular, it is unclear how the various penalty rates prescribed by clause 25.10(d(i) interact. For example:

(a) It is unclear what rate should apply to work undertaken outside the hours between 6am and 8pm on a public holiday. Should such work be paid at rates prescribed by clause 25.10(d)(i)(a) or 25.10(d)(i)(f)?

(b) Should work undertaken on a Sunday always be paid in accordance with clause 25.10(d)(i)(D) or would a different rate apply if one of the other clauses would also apply to such work? For example, what rates should apply if the work is also undertaken outside the 6.00am to 8.00pm span of hours or on a public holiday.

It is also unclear what hours are required to be taken into consideration in the calculation of the 38 hours or 76 hours per week referred to in clause 25.10(d)(i)(B). Are only ordinary hours required to be counted or are overtime hours required to also be counted?

It is unclear what rate of pay is required to be paid pursuant to clause 25.10(c)(ii) for the period that is not actually worked. The provision requires that ‘time worked continuously beyond the minimum payment period… be rounded up to the nearest 15 minutes and paid accordingly’. It is unclear whether penalty rates are to apply to the proportion of the 15 minutes that is not worked or whether such time is instead required to be paid at minimum rates. We assume that such time would be paid at minimum rates as it does not meet the requirements of the words ‘remote work performed’ as now adopted in clauses 25(d)(i)(A) through to (d)(i)(F), but this is not apparent.

It is also unclear whether clause 25.10(c)(ii) operates to deem time not worked as time worked for various purposes. For example, would time that is rounded up to the nearest 15 minutes (but not actually worked) count as an employee’s ordinary hours of work for various purposes under the Award and for the purposes of accrual of entitlements under the NES? The drafting of the provision is far from clear.’  77

[142] In addition to the above drafting concerns, Ai Group also identified some 9 merit differences between the Joint Proposal and Ai Group’s proposal, as set out below. 78

1. The proposals adopt differing definitions for what might be termed ‘remote work’, in substance:

(a) Ai Group proposes a definition for remote work that focuses on where the work is undertaken. Unlike the Joint Proposal, it does not limit it to work that occurs outside of certain parameters related to when it is worked.

(b) Ai Group’s proposal expressly articulates that certain administrative tasks associated with maintaining employment are not included within remote work. Ai Group observes that it appears to be common ground that such tasks would not constitute work, and as such, should not be captured by the clause. Accordingly, Ai Group submits that the merit difference between the proposal really turns on which approach provides greater clarity, or which approach better furthers the objective of ensuring that the Award is simple and easy to understand.

2. The remuneration structure contemplated under each of the proposals differs significantly.

3. The amount of time that is used to calculate the minimum payments differs under the respective proposals. Relevantly, Ai Group’s proposal provides for differentiated minimum payments at all times based upon whether or not an employee is ‘on call’ and provides for a lesser minimum payment at all times of the day or night if the employee is on call compared to if they are not on call. In contrast, the Joint Proposal contemplates a minimum payment of one hour for all remote work performed when an employee is not on call.

4. Clause X.3 of Ai Group’s proposal includes an exemption for work which is voluntarily undertaken by an employee while they are not on call and which attracts overtime rates. Ai Group does not press this element of its proposal.

5. Clause X.4(a) of Ai Group’s proposal deals with the manner in which work undertaken during periods when an employee is on call, or otherwise during a 24-hour period, can be applied in satisfaction of the minimum payment periods. There is no corresponding provision in the Joint Proposal given the different approach to remunerating employees for remote work.

6. Clause X.4(b) of Ai Group’s proposal deals with what happens if an employee performs multiple instances of remote work during a period while they are on call or in a 24-hour period. In short, it requires an employer to pay the highest minimum payment but does not require multiple minimum payments. Clause 25.10(c)(iii) of the Joint Proposal requires multiple minimum payments be made for separate instances of remote work, unless the remote work was performed within the applicable minimum payment period.

7. Ai Group’s proposal and the Joint Proposal differ in relation to the approach taken to imposing requirements upon employees to record time spent undertaking remote work and communicating this to employers.

8. Clause X.6 of Ai Group’s proposal contemplates transitional arrangements that are said to be ‘intended to moderate the adverse impact of insertion of a new monetary obligation in the Award upon employers of employees that currently pay such employees above award rates, including employers that currently remunerate employees for work that might be said to be remote work in a manner that differs from that contemplated by Ai Group‘s Proposal’. The Joint Proposal does not include any transitional arrangements.

9. Clause X.8 of Ai Group’s proposal carves out certain types of remote work from the application of the minimum payment provisions of its proposal and from the minimum payment provisions that will operate pursuant to clause 10.5 of the Award. In short, Ai Group’s proposal that the minimum payment provisions should not be triggered by the performance of remotely performed tasks that take less than 5 minutes and that take less than 10 minutes in circumstances where this is the result of an employee not properly performing their work (such as not completing handover notes) and the employee’s performance of the work being essential to the health or safety of an employee. The Joint Proposal does not include any corresponding provision.

[143] We also note that Ai Group comprehensively addresses the justification for its proposal and the deficiencies in the Joint Proposal in its submissions filed on 3 August 2021, 79 25 August 202180 and 30 August 202181 and in the course of the most recent hearing.

[144] In its submission dated 15 September 2021, AFEI submits that Ai Group’s proposal warrants ‘serious consideration’ by the Commission, for 4 reasons:

1. Ai Group’s second proposal provides ‘much needed clarity’ that is not provided by the Joint Proposal. AFEI supports the identified ‘clarity issues’ in Ai Group’s submission. 82

2. Intention of Joint Proposal is not reflected in amended draft determination; in particular, the drafting of clause 25.10(d) ‘appears inconsistent with the intention behind the Joint Proposal.’ 83

Further, AFEI submits that even if the intention of the Joint Proposal is reflected in the draft determination, then the result would create a significant administrative burden for employers and be inconsistent with ss 134(1)(d)(f) and (g). 84

3. Ai Group’s proposal complies with the Commission’s general observations about such a term, namely that: 85

  A shorter minimum payment should apply in circumstances where the employee is being paid an ‘on call’ allowance.

  There is merit in ensuring that each discrete activity (such as a phone call) does not automatically trigger a separate minimum payment.

  A definition of ‘remote response work’ or ‘remote response duties’ should be inserted into the Award.

  The clause should include a mechanism for ensuring that the time spent by an employee working remotely is recorded and communicated to their employer.

AFEI submits that Ai Group’s proposal ‘satisfies these general observations’ but the Joint Proposal does not:

‘…the Joint Proposal concerning ‘multiple instances of remote work’ (the Joint Proposal provides that “where multiple instances of remote work are performed on any day, separate minimum payments will be triggered for each instance of remote work performed, save that where multiple instances of remote work are performed within the applicable minimum payment period, only one minimum payment period is triggered”) appears to not be entirely consistent with point 2 of the FWC’s general observations (to ensure that each discrete activity does not automatically trigger a separate minimum payment.’ 86

4. Ai Group’s second proposal is consistent with ss 134(1)(f) and (g) in that it:

  promotes flexible modern work practices and the efficient and productive performance of work

  lessens any impact on business, including on productivity, employment costs and regulatory burden, and

  is simple and easy to understand. 87

4.2.5 Consideration

[145] No Union submissions were filed in response to the Joint Report prepared by ABI and Ai Group and Ai Group’s further submission. We have proceeded on the basis that the Unions support the position advanced by ABI in respect of the Joint Proposal, including the various amendments contained in the Amended draft determination attached to the Joint Report prepared by ABI and Ai Group.

[146] We have given careful consideration to the terms of the Joint Proposal and the proposal advanced by Ai Group. In our view the respective merits favour the Joint Proposal. In particular, the Joint Proposal provides a fair and reasonable minimum safety net of conditions for employees performing remote work and, further:

  is consistent with our observations in the May 2021 Decision at [721]–[722], and

  adequately resolves our concerns around complexity in terms of the rate of pay issue (see [737]–[738] of the May 2021 Decision).

[147] The fact that the Joint Proposal has the support of several of the employer interests and all of the Unions is also relevant, though not determinative. As noted in a recent Full Bench decision concerning the review of the Professional Employers Award 2020:

‘A consequence of the shift in the nature and purpose of modern awards is that the weight to be given to the views of interested parties is, generally speaking, less now than it was previously.   

… we must decide for ourselves whether the variations proposed have merit and are necessary to ensure that the award achieves the modern awards objective.’ 88

[148] Ai Group’s proposal is more expansive in scope than the Joint Proposal and lacks a requisite evidentiary foundation. Ai Group is at liberty to pursue its proposal by making an application to vary the Award once the draft determination arising from these proceedings has been finalised.

[149] We have also considered Ai Group’s remaining concerns regarding the drafting of the Joint Proposal (see [135] to [142] above). It seems to us that a number of Ai Group’s ‘concerns’ are in respect of potential issues that may arise in the implementation of the Joint Proposal in practice. Addressing each of these potential issues would add considerable complexity to the Joint Proposal. In particular, we do not consider it necessary that the definition of ‘remote work’ carves out certain tasks such as an employee reviewing or managing their own roster, communicating with their employer about their availability for work, accepting additional hours or calling in sick. We note the position of the parties to the agreed position is that those incidental activities do not constitute remote response work and do not trigger any entitlement to payment. Moreover, we agree.

[150] We are not persuaded that it is necessary to amend the Joint Proposal to address the issues raised by Ai Group. The intent of the Joint Parties is clear as set out above and if, once implemented, the new remote response term gives rise to any implementation issues these can be addressed by a variation application.

[151] We have determined to adopt the drafting changes as outlined in the Joint Report prepared by ABI and Ai Group and set out in the Amended draft determination attached to that document. Those changes will be incorporated into the further revised draft determination.

[152] It is now convenient to deal with the disputed issue in respect of the Joint Proposal – the appropriate minimum payment amount for on call remote response work performed between 10pm and 6am.

4.3 The appropriate minimum payment for on call work between 10pm and 6am

[153] The Joint Parties have agreed that the minimum payment that should apply to work performed between 6am and 10pm, by employees who are on call, should be 15 minutes’ pay; but have been unable to reach agreement on what the minimum payment period where an employee who is on call performs remote work between 10pm and 6am. 89

[154] ABI submits that the appropriate minimum payment for such work is 30 minutes’ pay and advances 5 points in support of that position: 90

1. In determining whether to adopt the Joint Proposal that has been put forward, the Commission should place weight on the fact that the Joint Proposal has been put forward by agreement between eight interested parties which include the three relevant trade unions as well as five employer/industry associations.

2. If the Commission is to endorse the Joint Proposal, it must ensure that each of the relevant minimum payments are appropriate and proportionate when they are considered against each other.

3. The Commission must assess the relative disutility between remote work performed during 6am-10pm by employees who are on call and remote work performed during 10pm-6am by employees who are on call. Under both scenarios, the employee will be on call and will be in receipt of the on call allowance. There is no evidence to suggest the nature of the work would be any different. The only difference is the time at which the work is performed. In ABI’s submission, the additional disutility associated with performing remote work during 10pm-6am would not warrant a minimum of more than twice the daytime minimum payment. This supports setting a minimum payment of no more than 30 minutes.

4. Weight must be given to the rate of payment that is proposed to apply. Under the proposed clause 25.10(d)(i)(A), the rate of pay for remote work performed between 10pm and 6am will in all cases be no less than 150% of the minimum rate (175% for casuals), and in some cases will be 200% (225% for casuals). This is compared to the rate of payment for daytime remote work which, in the vast majority of cases, will not attract a premium rate and will be paid at the minimum rate.

This is a significant factor. When the rate of pay is taken into account, under our advocated position, in most cases the position will be:

(a) remote work performed between 6am-10pm by on call employees will be attract a 15 minute minimum payment at the minimum rate; compared with

(b) remote work performed between 10am-6am by on call employees will be attract a 30 minute minimum payment at 150%.

In dollar terms, this results in the minimum payment for ‘evening’ work being triple the minimum payment for ‘daytime’ remote work.

5. Weight must be also be attributed to the fact that on call employees will receive the on call allowance under clause 20.9.

[155] NDS supports the position advanced by ABI and submits:

‘We agree that the minimum payment for an employee who is on-call between 10pm and 6am should be higher due to the disutility associated with late night calls. Agreement has not been reached regarding this and the proposed clause does not specify a minimum payment. We propose a minimum payment of 30 minutes. Once again, we take account of the likelihood that many calls will be quite short in duration and consider that this provides a proportionate entitlement.’ 91

[156] The ASU supports the Commission’s provisional view that the minimum payment should be 1 hour for remote work when not on call, between 10pm and 6am. 92

[157] The ASU relies on its previous evidence and submissions about the disutility associated with remote work, in particular the evidence of Ms Anderson and Ms Flett. 93 The ASU also filed additional witness statements in respect of this issue:

  Witness Statement Feargus John Macbeth Manning 94

  Witness Statement of Paul McKenzie, 95 and

  Witness Statement of Daniel Trickett. 96

[158] The ASU also submits that the minimum engagements and rates of pay prescribed by the Joint Proposal are not unusual:

‘Indeed, if remote response was paid at the employee’s minimum rate of pay in the SCHDS Award, it would be the only federal award to do so.

Relevantly:

  The Nurses Award 2020 provides for a 1-hour minimum payment at overtime rates for employees who are required to perform work ‘via telephone or other electronic communication away from the workplace’.

  The Contract Call Centres Award 2020 provides for a range of minimum engagements for remote work (between 30 minutes and 1 and a half hours depending on the time of day), paid at overtime rates. There is no on-call term in the award.

  The Telecommunications Services Award 2020 provides for a range of minimum engagements for technical services stream employees performing remote work (between 30 minutes and 1 and a half hours depending on the time of day), paid at overtime rates.

  The Local Government Award 2020, the Victorian Local Government Award 2015 and the Water Industry Award 2020 pay overtime rates for ‘remote response’ as defined by the Award.

  In the Telstra Award 2015, an employee working at home will be paid at overtime rates for the hours actually worked when rostered on-call, and an employee who works remotely when they are not rostered on-call would receive 200% of their ordinary rate of pay.’ 97

[159] Attachment A to the ASU’s submission is a summary of remote work terms in the Modern Awards, Modern Enterprise Awards and State Reference Public Sector Awards.

[160] It is convenient to note here that Attachment A to AFEI’s reply submissions contains a commentary on the modern awards containing remote work provisions identified by the ASU. In summary, AFEI submits:

‘Remote work provisions are not common in Modern Awards. The ASU’s table identifies a number of enterprise-based instruments and public sector instruments, that also are arguably enterprise-based instruments, and only five modern awards that contain remote work provisions. The enterprise-based instruments should not be considered relevant as comparators for the SCHADS Award.

In relation to the five modern awards, AFEI makes the following observations:

i. the coverage of the Contract Call Centres Award 2020 (CCCA) is considerably narrower than the SCHADS Award. As noted below the highest classification is Contract Call Centre Industry Technical Associate. Remote work performed by senior employees and managers of contract call centre operations is not covered by the CCCA and in all likelihood such employees would be award free;

ii. similarly the coverage of Telecommunications Award 2020 (TA) is more limited than the SCHADS Award, again more senior employees and managers are not covered by the TA, and the remote work provisions are limited in the TA to the Technical stream only;

iii. the Nurses Award 2010 (NA) is an occupational award, and unlike the SCHADS Award does not apply to most, if not all, employees within an organisation. Moreover, the two highest classifications of registered nurses are exempt from the NA’s overtime payments; and

iv. of the five modern awards identified by the ASU, the Local Government Industry Award 2020 (LGIA) and the Water Industry Award 2020 (WIA) are the most comparable to the SCHADS Award in employee coverage, and it appears that the remote work provisions are not limited to any particular employees. The remote work entitlements, however, appear to be significantly different to the Joint Proposal. Neither the LGIA nor the WIA contain minimum payments, other than rounding-up payment for actual time work to the nearest 15 minutes, nor do the two awards make any distinctions between the time remote work is performed.’ 98

[161] In reply the ASU submits that AFEI ‘overstates the submission from the ASU’ and that ‘the purpose of highlighting these remote response provisions is to put the joint proposal into context’. 99 In essence the reference to the provisions in other awards is in support of the ASU contention that the Joint Proposal is ‘not unusual’ and ‘is moderate and relevant n the circumstances in the SCHADS industry’.100 

[162] The ASU acknowledges that there are differences between the Joint Proposal and the provisions in the modern awards identified but submits:

‘the position in the Joint Proposal is relevant to the SCHADS industry and is supported by the entirety of the employee interest in these proceedings and a significant proportion of the employer interest … it’s what’s fair and relevant to the circumstances of the SCHADS industry.’ 101

[163] The HSU also supports a 1 hour minimum payment between 10pm and 6am and submits:

‘the disutility of being disturbed between the hours of 10pm and 6am is patently more than any disutility to an employee receiving a call/ email during the day or earlier hours of the evening.’ 102

[164] The UWU also supports a 1 hour minimum payment between 10pm and 6am. 103

[165] ABI summarises the submissions advanced by the Union parties in support of a 1 hour minimum payment as follows: 104

1. They accept that remote work should attract a shorter minimum payment than the minimum engagements / minimum payments that otherwise apply under the Award.

2. The Commission already provisionally rejected a 45-minute minimum payment advanced by ABI during the hearing.

3. In the May 2021 Decision the Commission expressed the provisional view that the appropriate minimum payment period should be 1 hour.

4. The provisional view referred to in 3 above should be adopted as it was ‘reached with regard to the appropriate balance to be struck between the interaction between an appropriate minimum payment in the circumstances and the rate of payment to be applied to such work’.

5. The disutility associated with performing remote work between 10pm and 6am is ‘patently more’ than the disutility associated with performing remote work during the day.

[166] The Union parties did not take issue with ABI’s summary of their position. 105

[167] ABI’s reply to the Union submissions is set out at [19]– [48] of its 30 August 2021 submission. ABI accepts, generally speaking, that there is a greater disutility associated with employees (who are on call) performing remote work between 10pm and 6am as compared to performing remote work between 6am and 10pm. 106

[168] As ABI notes, the ‘crux of the debate is about the extent of the disutility, and the proportionate disutility between ‘day time’ remote work and ‘night time’ remote work by on-call employees.’ 107 In respect of this issue ABI submits:

‘The ‘night time’ minimum payment cannot be viewed or established in a vacuum. It must be proportionate to the 'day time' minimum payment period. It must also be set having regard to the fact that, under the Agreed clause, the applicable rate of pay will in all cases be at least 150%.

Generally speaking, the modern awards system compensates for disutility associated with the performance of work through the imposition of premium rates: for example, working at unsocial hours attracts a night shift loading, working on the weekends attracts a weekend penalty rate, etc.

In this case, the Agreed Clause provides for remote work performed outside the span of hours to be compensated at 150% for the first two hours and 200% thereafter. The rationale for this is that a premium rate should apply to compensate for the disutility associated with performing remote work at unsocial hours. This is to be contrasted with ‘day time’ remote work which, in most cases, will not attract a premium rate.

…a one hour minimum payment goes well beyond an appropriate monetary entitlement for the type of work performed (having regard to both the value of the work and the disutility associated with the work).’ 108

[169] ABI contends that if the Unions’ proposed 1 hour minimum payment was to be adopted, it would result in ‘unreasonable, disproportionate and unfair amounts of money being payable by employers’ and would ‘establish an award term that is inconsistent with the modern awards objective.’ 109

[170] To demonstrate the unreasonableness of the Unions’ submission, ABI provides an example of the amounts that would be payable to three different classes of employee if they were to perform remote work during 10pm–6am while on call:

  SACS employee Level 2, pay point 3 (permanent employee)

  Home care employee Level 3, pay point 2 (casual employee), and

  SACS employee Level 6, pay point 2 (permanent employee).

[171] The below table sets out the minimum monetary amount that would apply to each of the sampled classifications of employees. 110

[172] The table assumes that the applicable rate of pay would be 150% for permanent employees and 175% for casual employees in relation to ‘mid-week’ work. Under the Joint Proposal, this would be the lowest rate that would apply to the work. The table also assumes the weekend work is performed on a Sunday. 111 ABI advances the following submissions in respect of the table above:

‘…the proposed one hour minimum payment advocated for by the Union Parties would result in very significant payments applying to remote work. This is particularly the case where employees might, in many cases, perform work for only a very short period of time (e.g. 1-5 minutes) and without leaving their home (and potentially in some cases without even getting out of bed).

The Union Parties’ proposed minimum payment would also result in on-call employees being remunerated greater than employees who are not on-call and who are required to perform remote work. This would be an anomalous outcome.

Put simply, the payments advocated for by the Union Parties are manifestly excessive. They bear no resemblance to the value of the work performed or the disutility associated with such work.’ 112

[173] The Unions do not take issue with the calculations set out in the table above and contend that they are appropriate to the disutility of working at these times. 113

[174] As to ABI’s ‘proportionate disutility’ argument, the HSU submits that the 15 minute minimum payment between 6am and 10pm was not its preferred position and represented a significant concession. The HSU also submits: 114

  the disutility of being woken up between 10pm and 6am is significant; and

  the rates proposed by the Unions are not inconsistent with other modern awards (with particular reference being made to the Nurses Award 2020 and the Ambulance and Patient Transport Industry Award 2010.

[175] The ASU agrees with the HSU submissions and submits that the 1 hour minimum payment between 10pm and 6am is ‘not unprecedented in this award’; and point to the sleepover and 24 hour clauses in particular. 115

[176] In response, ABI submits that the analogy with the sleepover and 24 hour provisions is ‘a very helpful one’ and in fact supports ABI’s position in relation to the disputed issue:

‘there's a clear difference between the work that we're talking about regulating, and to give you some examples if we take the sleepover clause, clause 25.7, what's here is that the person is at a workplace rather than at their home … They're not sleeping in their own bed, they're sleeping at a particular workplace, generally in a home with clients for whom they're tasked with caring. If their sleep is interrupted the nature of the work that they perform is quite different…

…the type of interruptions that employees would have when they're on a sleepover would be clients waking in the middle of the night, there being interruptions, assisting clients to use the bathroom, dealing with situations, and I think some of the ASU evidence about what takes place and the nature of the work that was referred to this morning is instructive… one of the Karinga employees who gave a statement talks about working in a very challenging group home with people with very high levels of needs and some of the circumstances that those employees are faced with.

That type of work and those types of challenges are not going to be faced when we're talking about remote work. So I think there's a very significant difference in terms of the nature of the work. Whether we're talking about sleepovers that are interrupted or 24 hour care we're talking about employees who are physically at a designated workplace physically dealing with people, dealing with clients. There's work health and safety obligations and expectations that are quite different to an employee in their own home receiving a phone call. So quite the contrary to the characterisation that the unions seek to put on the matter. These clauses that they have referred to do not support a one hour minimum payment in respect of remote work worked during the evening.’ 116

4.3.1 Evidence

[177] We turn first to the evidence filed by the ASU (see [157] above).

[178] Ms Anderson is rostered to be on call once a week and describes the impact of on-call work at [24] of her statement; but does not specifically deal with the period from 10pm to 6am.

[179] Ms Flett works in a team that provides after hours on call support to staff, volunteers and young people and describes the impact of on call work at [21] to [25] of her statement; in particular:

‘When I work through the night on call, I feel exhausted the following day. I find it is different from working a shift when you are awake through the night. In the morning, you just feel like you are jetlagged as you have only slept in parts and will need to sleep again later in the day once the mornings duties are finalised and you go off shift.

The following day after a night shift I can't do the things I like to do. I cannot exercise at a high level, my balance is affected, I cannot ride my motorbike or pushbike. I also find it harder to engage with my partner friends and family. I find that I don't have the energy to socia1ise, so I tend to withdraw a little bit and miss out.

I find that I do not get that regular connection with my partner in an undisturbed space.’

[180] Mr Manning is employed by The Disability Trust, as a roster clerk. Examples of rosters for a group home and a respite home are attached to his statement. Mr Manning’s evidence says nothing about the disutility of remote response work while on call.

[181] Mr McKenzie and Mr Rickett both work for Caringa, a disability services provider. Attached to Mr McKenzie’s statement is a ‘time analysis worksheet’ over the period from the early evening on Friday 6 June 2020 to Monday 8 June 2020. During this period, Mr McKenzie received 143 phone calls; the earliest call was at 5am on Saturday 6 June and the latest at 10:17pm on Monday 8 June.

[182] Mr McKenzie describes feeling fatigued after working on call and:

‘Also when I was doing afterhours duties out of worktime, I used to get quite anxious as I was anticipating to be called and interrupted at any time when you are at home or out in the community. I was always waiting for that call. The calls would come at those inconvenient times such as eating dinner out with the family, at the movies, enjoying other peoples company etc. It was highly inconvenient when I was driving a vehicle as I had to find a place that was safe to pull over and take the call. If this call warranted it, I would have to then head home to my computer so that I had access to computer screens to try and solve the problem.

I could not drive to any destination that had no service. Every time the family wanted to go somewhere on that weekend that was close by you had to make sure there was reception otherwise you could not go. This has all ceased with the introduction of the roster clerks system.’ 117

[183] Mr Trickett describes his experience of working remotely on call as follows:

‘In the past, I regularly worked remotely through an on-call roster. This had an impact on my health and my personal life.

When I started working as a team leader, there were very few calls during my on-call week, sometimes as little as one or two. on-call work was an inconvenience…

But then Caringa started growing and taking on more clients. The number of calls grew until I could expect to be called between 50 and 100 times each week. I want to stress that each call meant follow up actions were required too. Depending on the issue, I could have several hours of work from home after responding to a call.

As the number of calls grew, working on-call became very fatiguing and started interfering with my life. I was regularly working at night during the week. I could receive calls at any time of night, including after midnight. Then I would be expected to attend work the next day at 8.45 am. I was also working regularly on the weekends. Often I would do four or five hours each day.

As soon as the phone rang, it was my responsibility to answer it. This would mean waking up at night, burning dinners, and sometimes missing dinners. I remember sitting on the side of the road in my car after taking my son to an appointment answering sick calls and ensuring we had shift coverage. I missed birthday parties and sports, I couldn’t make plans when I was on-call. My son had to grow up pretty quickly. He said to me that he knew that if I was in my study I was busy, so he knew not to bother me. I was lucky because he is pretty responsible, but I feel sorry for him.’  118

[184] Mr McKenzie and Mr Trickett no longer work on call; as Mr McKenzie notes in this statement:

‘A result of consultation with Caringa management, roster clerks were hired and the afterhours duties were taken off the Outcomes and Practice Leaders responsibilities from approximately the 12/10/2020. I was and still am delighted with this decision and solution. For myself it has resulted in getting my weekends back and after working 38 hours a week I was back to having a much needed break on the weekends.

With the introduction of the new roster clerk positions I am no longer required to complete this task I can go back to planning activities on those weekends that were affected by the afterhours.’

[185] The ASU submits that the additional witness statements ‘further prove[s] the disutility associated with performing remote response work’ 119 and makes the following points about the additional evidence filed:

‘Both Daniel Trickett and Paul McKenzie gave evidence about the ways that being rostered oncall has impacted their personal lives. Mr Trickett and Mr McKenzie both needed to remain close to home when they were rostered on-call and could not spend any time in a location that had poor mobile phone reception. This was because they needed to be able to respond immediately if required to work. They could be recalled to work at the physical work or to work remotely. Mr McKenzie reported feeling anxious due the anticipation of being called. Many employees find themselves in similar circumstances to Mr Trickett and Mr McKenzie when on-call – they do not know whether they will be required to provide a remote response or physically attend a workplace when they are called upon.

Mr Trickett and Mr McKenzie describe the significant impact that being on-call can have on an employee’s livelihood – this will only be heightened for those employees who are required to provide remote response when not rostered on-call. An employee in these circumstances is unlikely to have made alternative arrangements in relation to caring responsibilities and food preparation, and would likely experience significant disruptions to any leisure activities.

Additionally, the evidence filed by the ASU in these proceedings demonstrates that employees in the SCHDS Sector can and will exceed the minimum engagements in the Joint Proposal. The evidence of Mr McKenzie demonstrates that he worked approximately 15 hours over the 2020 New South Wales June Long Weekend, including 5 hours and 45 minutes on the Queen’s Birthday Public Holiday.

Additionally, the evidence of Mr McKenzie and Mr Trickett demonstrates that it is possible to organise work in the disability sector without relying on supervisors to work on call. Caringa, who employ both Mr Trickett and Mr McKenzie, have recently employed a number of rostering clerks to handle many of the administrative duties that were previously performed by on-call employees. As noted by Mr Trickett, the higher cost associated with paying overtime to employees on-call was a significant factor in the Caringa making this decision.’ 120

[186] ABI addressed the ASU’s evidence during the course of oral argument, 121 and submits:

‘it’s supportive of the making of a remote work clause. We say that the weight that can be attributed to it by the Commission is possibly modest in the sense that is evidence from three employees across two workplaces and setting out their individual experiences.’ 122

[187] We agree with ABI. The evidence adduced by the ASU describes the individual experiences of a small number of employees and is of very limited assistance in our consideration of an appropriate minimum payment for work performed by on call employees between 10pm and 6am.

[188] During the course of oral argument on 1 September 2021, the HSU alluded to a deterrence effect of providing for a 1 hour minimum payment between 10pm and 6am.

[189] In replying to these submissions, ABI submits:

‘[the HSU] raised a couple of submissions around the clause seeking to not encourage particular behaviours or disincentivising, you know, an employer calling someone who's not on-call. I think the point I'd like to make about that is that the task of the Commission is to establish terms and conditions that meet the modern award's objective, that provide a fair and reasonable set of minimum terms and conditions. I'm not sure that the task of the Commission is to set about creating terms that encourage particular behaviours. Of course that may be a consequence of the Commission's decision but that's not the purpose for which the Commission undertakes its activities.’ 123

[190] We agree with ABI. As the Penalty Rates Full Bench observed, ‘the notion of deterrence [does not] sit comfortably with the modern awards objective’: 124

‘The modern awards objective is to ‘ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of tem1s and conditions’. As we have mentioned, fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question. It is difficult to conceive of the circumstances in which setting a rate of pay for work at particular times or on particular days with the objective of deterring the scheduling of work at that time or on those days can be said to be fair to the employers covered by the relevant modern award.

Nor is the notion of deterring the scheduling of work at particular times or on particular days expressly mentioned as a s.134 consideration. Indeed the matters mentioned in s.134(1)(a) to (h) appear to be inconsistent with the concept of deterrence. In particular, the ‘need to promote flexible modern work practices and the efficient and productive performance of work’ (s.134(l)(d)) appears antithetical to the idea of deterring the performance of work at specified times.

Further, s.134(1)(da)(ii) and (iii) refer specifically to employees working ‘unsocial... hours’ and ‘working on weekends or public holidays’ and ‘the need to provide additional remuneration’ for employees in such circumstances… the provision is focused on the compensatory element of the historical rationale for penalty rates - there is no express reference in s.134(1)(da) to the notion of deterrence.’ 125

[191] The determination of an appropriate monetary entitlement for remote response work involves an assessment of the value of the work and the extent of disutility associated with the time at which the work is performed. In the present context there is no probative evidence to suggest that the nature and value of the on call remote response work varies depending on the time when it is performed. The only difference is the disutility attaching to the time at which the work is performed.

[192] As we found in the May 2021 Decision, there is a disutility associated with performing work outside of ordinary hours in circumstances where the employee is not recalled to a physical workplace (i.e. remote response work). Further, we accept that there is a greater disutility associated with on call employees performing remote work between 10pm and 6am as opposed to performing that work between 6am and 10pm. In particular, employees are more likely to have their sleep disturbed between 10pm and 6am.

[193] In determining what the appropriate minimum payment for work performed between 10pm and 6am by employees who are on call, it is appropriate that we have regard to the fact that the Joint Parties are advocating for a 15 minute minimum payment for work performed during 6am - 10pm.

[194] The context is relevant. We agree with ABI that the minimum payments prescribed in the remote response clause should be proportionate when considered against each other. We also agree that the additional disutility associated with performing remote response work during 10pm to 6am does not warrant a minimum payment of more than twice the minimum payment for such work performed between 6am and 10pm.

[195] These considerations weigh heavily in favour of setting a minimum payment of 30 minutes for remote response work between 10pm and 6am.

[196] The Union parties place considerable reliance on our provisional view that a 1 hour minimum payment was appropriate for on call remote response for work performed between 10pm and 6am.

[197] We would observe that our provisional view was just that, provisional; and, further, it was expressed in circumstances where the proposed rate of pay was unclear. As we noted in the May 2021 Decision ‘there is an interrelationship between the minimum payment period and the rate of payment’. 126 The Joint Proposal provides that in all cases the applicable rate of pay will be at least 150% of the relevant minimum rate.

[198] We have decided that a 30 minute minimum payment for on call remote response work between 10pm and 6am is fair in the context of the amended Joint Proposal.

[199] The merits favour a variation of the SCHADS Award in the manner proposed in the Joint Report (including the consequential amendments to clauses 20.9 and 28.4, and the drafting changes referred to in the Amended draft determination attached to the Joint Report prepared by ABI and Ai Group), with the reinstatement of the percentages of the standard rates in clause 20.9 and the inclusion of a 30 minute minimum payment for on call remote response work between 10pm and 6am.

[200] We now turn to the s.134 considerations.

4.3.2 The modern awards objective

[201] Section 134(1)(a) of the Act requires that we consider ‘relative living standards and the needs of the low paid’. A threshold of two-thirds of median full-time wages provides a suitable benchmark for identifying who is ‘low paid’, within the meaning of s.134(1)(a). A proportion of employees covered by the SCHADS Award may be regarded as ‘low paid’ within the meaning of s.134(1)(a) of the Act.

[202] The ‘needs of the low paid’ is a consideration which weighs in favour of the variation we propose to make. This compensates employees for the disutility of performing remote response work.

[203] Section 134(1)(b) requires that we consider ‘the need to encourage collective bargaining’. We are not persuaded that the proposed variation would ‘encourage collective bargaining’, it follows that this consideration does not provide any support for the proposed variation.

[204] Section 134(1)(c) requires that we consider ‘the need to promote social inclusion through increased workforce participation’. Obtaining employment is the focus of s.134(1)(c).

[205] The impact of the proposed variation on total employment is unlikely to be significant. We regard this consideration as neutral.

[206] Section 134(1)(da) requires that we consider ‘the need to provide additional remuneration for, relevantly, ‘employees working overtime’ and ‘employees working unsocial, irregular or unpredictable hours’. The proposed variation provides such additional remuneration.

[207] Section 134(1)(f) of the Act requires that we consider ‘the likely impact of any exercise of modern award powers on business, including on productivity employment costs and the regulatory burden’. We accept that the variation proposed will increase employment costs and the regulatory burden. This consideration weights against the proposed variation.

[208] The considerations in s.134(1)(c), (d), (e), (g) and (h) of the Act are not relevant in the present context.

[209] 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). We have taken into account those considerations, insofar as they are presently relevant and have decided to vary the SCHADS Award as proposed above. We are satisfied that this variation is necessary to ensure that the SCHADS Award achieves the modern awards objective.

5. Broken Shifts

5.1 General

[210] 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 to: 127

  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.

[211] The Draft Determination in respect of this aspect of the May 2021 Decision was varied by the August 2021 Decision. Item 12 of the Revised Draft Determination provides as 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 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.’

[212] There is a controversy about the correct interpretation of the SCHADS Award, in particular about whether shift workers can work broken shifts. The interpretation issue arises in the context of our decision to vary clause 25.6. We return to this issue shortly. We deal first with the quantum of the broken shifts allowances.

5.2 Quantum of the ‘Broken Shifts’ allowance

[213] In the May 2021 Decision we expressed the following provisional views: 128

1. 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 (now $17.53 per broken shift following the Annual Wage Review 2021-22).

2. The broken shift allowance payable for a ‘2 break’ broken shift should be set at 2.5% of the standard rate (now $25.78 per broken shift following the Annual Wage Review 2021-22).

[214] The provisional view as to the quantum of the allowance is contested.

[215] The Unions support the provisional view as to the quantum of the broken shift allowances. 129 A number of the employer parties take a different view.

[216] ABI submits that the proposed quantum is ‘too high’ 130 and contends that other changes which the Commission has decided to make ‘will go a significant way to ameliorating the issues with the broken shifts clause (such as fragmented working patterns and very short shifts).’131 The particular changes highlighted by ABI are:

  the implementation of a two-hour minimum engagement for each part of a broken shift for part-time and casual employees in the home care and disability services streams, and

  the limitation of broken shifts to two portions of work (and one break) or, by agreement with an individual employee (on a per occasion basis), three portions of work (and two breaks).

[217] As to the proposed quantum, ABI submit that ‘it is clear that there is a huge disparity across the modern award system in terms of the allowances applying in relation to broken shifts’; ‘broken shift allowances range from $2.53 per day to $17.18 per day, with most being towards the lower end of the range’. 132

[218] ABI contends that if the Commission’s provisional view is affirmed the SCHADS Award ‘will become home to the highest broken shift allowance across the entire modern award system.’ 133

[219] ABI accepts that the setting of the quantum of the broken shifts allowance requires the exercise of broad judgment; but submits that the provisional amounts are too high. 134 In particular, ABI contends that the proportional difference between the 2 allowances should not be as significant:

‘In our submission, the introduction of a requirement that ‘two break’ broken shifts can only be worked by agreement with an individual on a per occasion basis means that the ‘two break’ allowance should not be set as high comparative to the ‘one break allowance’ as currently proposed.’ 135

[220] ABI submits that the proposed broken shift allowances be adjusted downwards to 1.5% ($15.47) and 2.0% ($20.63) on the basis that ‘this will provide employees with a reasonable amount of compensation for the disutility associated with working broken shifts, and still result in the allowances being at “towards the upper end of the range” compared to other modern awards.’ 136

[221] AFEI notes that the provisional quantums are set towards the upper end of the range in other modern awards (which range from 0.28% to 2.29%) and does not agree that the broken shift allowances in the SCHADS Award should be set towards the upper end of the range in other modern awards for 3 reasons: 137

1. A comparison with other modern awards is not a sound basis for determining the quantum of allowance appropriate for the SCHADS Award as it is intended to specifically address the needs of the disability services and home care industries.

2. The introduction of a 2 hour minimum engagement term will ameliorate the disutility of working broken shifts.

3. In light of the determinations made by the Commission, the disutility of working broken shifts is diminished and ‘allowances towards the ‘upper end’ of the scale is not justified and should be reduced.’

[222] AFEI proposes that the broken shift allowances be set at: 138

  1.3% of the standard rate for a 1 break shift; and

  2.0% of the standard rate for a 2 break shift.

[223] Ai Group also supported lower broken shift allowances. 139

[224] The Joint Employer submission dated 17 September 2021 deals with the quantum of the broken shift allowance at [70]–[94]. The issue is also addressed in the Joint Employers reply submission of 27 September 2021.

[225] The Joint Employers agree with the general proposition that any broken shift allowance should be calculated by reference to the standard rate and should not be determined by reference to the start or finish time of a shift, but submit that the broken shift allowances should be substantially lower than those provisionally determined by the Commission. 140

[226] The Joint Employers note that ABI and AFEI have previously argued that the broken shift allowances should be reduced, even if they are to apply in lieu of the shift allowances and support those submissions and, further, contend that the broken shift allowances should be even less if they are to apply in addition to the shift allowances. 141

[227] In the Joint Union submission dated 15 September 2021, the Unions submit that the quantum of broken shift allowances provisionally determined by the Commission in the May 2021 Decision ‘are appropriate and should not be reduced’. 142

[228] We turn first to the submission advanced by the Joint Employers that ‘if the Award is to make clear that shiftworkers can work broken shifts and to provide for the payment of shift allowances for such work, the quantum of the proposed broken shift allowances should be substantially reduced.’ 143

[229] In our view the submission put conflates 2 issues – the quantum of broken shift allowances for day workers (i.e. non-shift workers whose broken shift is between 6am to 8pm) and the remuneration arrangements (including the quantum of broken shift allowances) for shift workers who work broken shifts.

[230] The proposition put seems to be that if shiftworkers work a broken shift and are paid a shift allowance then the quantum of the broken shift allowances should be ‘substantially reduced’ for all broken shift workers. Such a proposition is plainly illogical. The fact that shift workers may receive a shift allowance when working a broken shift provides no logical basis for substantially reducing the broken shift allowance payable to non-shift workers. The 2 issues are quite separate.

[231] A broken shift allowance is intended to compensate employees for the disutility of working a broken shift. As we found in the May 2021 Decision 144 employees report a range of adverse consequences with working broken shifts with short engagements and unpaid travel time,145 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.’

[232] There is considerable variation in the proportion of the standard rate fixed as a broken shift allowance in various modern awards. Fixing the proportion calls for the exercise of broad judgment; it is not a matter which lends itself to precise quantification.

[233] In fixing the broken shift allowances for the SCHADS Award, the fact that employees do not operate from a base location is a relevant consideration. Employees in home care and certain disability services have no ‘base location’ where they start at and finish at each day. The work site for such employees is the home of the client, or locations where the client may need to be taken (such as medical centres, shopping centres, social events).

[234] As we said in the May 2021 Decision,146 this context is relevant because, broadly speaking, a broken shift allowance compensates 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 two occasions.

[235] As to the second of these disutilities, a broken shift of 2 portions of work and a break will usually mean that the employee will travel between the end of the first portion of the shift and the start of the second. Depending on the duration of the break they may travel home or to the location of their next engagement.

[236] These considerations led us to the provisional view that we should set the proportion of the standard rate in the SCHADS Award towards the upper end of the range of other modern awards. We adhere to that view.

[237] That said, we agree with ABI’s submission that the proportional difference between the 1 break and 2 break allowances should not be as significant as we provisionally proposed.

[238] ABI proposes that the broken shift allowances be adjusted downwards, to 1.5% and 2.0% respectively. 147

[239] We do not agree with the quantum put forward by ABI, but we accept the proportional relationship proposed. Given that the working of a 2 break broken shift is subject to employee agreement, on a per occasion basis, we propose to vary our provisional view and reduce the 2 break allowance to 2.25% of the standard rate. We confirm our provisional view in relation to the quantum of the 1 break allowance.

[240] For completeness, we note that in their reply submissions, the Joint Employers submit:

‘The payment of public holiday penalty rates in addition to the broken shift allowance was not contemplated by the Full Bench in its provisional view as to the quantum of a new broken shift allowance. The provision of such additional entitlements would accordingly warrant some reduction in the quantum of the broken shift allowance below that which was proposed by the Full Bench.’ 148

[241] We reject the proposition that the payment of public holiday penalty rates was ‘not contemplated’ when we formulated our provisional view as to the quantum of broken shift allowances. The omission of a reference to public holiday rates in the draft determination was simply an error – we made no deliberate decision to exclude the payment of such penalty rates and, it follows, such inadvertent exclusion had no bearing on the provisional proposed quantums. 149 We have corrected this error in the draft variation determination attached to this decision.

[242] Accordingly, we have determined that:

  an employee working a ‘1 break’ broken shift under clause 25.6 will receive a broken shift allowance of 1.7% of the standard rate, per broken shift, and

  the broken shift allowance payable for a ‘2 break’ broken shift will be set at 2.25% of the standard rate.

[243] There is one final matter we wish to mention regarding the quantum of broken shift allowances we have determined.

[244] In the August 2021 Decision we decided to defer further consideration of the various travel time claims until the variations in respect of minimum payment periods and broken shifts had been in operation for 12 months. There is an interrelationship between the remuneration for broken shifts and travel time. In setting the broken shift allowances, we have taken into account the additional travel time associated with effectively presenting for work on 2 occasions. It follows that if the SCHADS Award is subsequently varied to provide a payment for travel time, the quantum of the broken shift allowances may require downward adjustment.

5.3 Broken shifts after 8pm

[245] As mentioned earlier, there is a controversy about whether shift workers can work broken shifts under the current terms of the SCHADS Award.

[246] The controversy arises from the interaction of clauses 29.4 and 25.6. Clause 29 deals with ‘Shiftwork’. Clause 29.4 provides:

‘Shifts are to be worked in one continuous block of hours that may include meal breaks and sleepover.’

[247] 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.’

[248] Clause 25.6(b) provides:

(b) Payment for a broken shift will be at ordinary pay with penalty rates and shift allowances in accordance with clause 29—Shiftwork, with shift allowances being determined by the finishing time of the broken shift.’

[249] The crux of the issue in contest is the application to shiftworkers of our decision to vary clause 25.6.

[250] The various employer interests broadly supported a draft determination filed by Ai Group on 31 August 2021. 150

[251] Toward the end of the hearing on 1 September we advised the parties that we proposed to formulate a series of questions in respect of the application of our decision to vary clause 25.6. The parties would then have an opportunity to file submissions in respect of those questions.

[252] In a Statement 151 published on 3 September 2021 (the September 2021 Statement) we expressed the provisional view that we not express an opinion about the interaction of clauses 25.6 and 29.4 and whether the SCHADS Award currently permits an afternoon or night shift (as defined by clause 29.2) to be broken in accordance with clause 25.6.152 We also proposed the following questions for the purpose of determining the outstanding issues:

1. Is there any opposition to our provisional view (as set out above)?

2. Should the SCHADS Award permit an afternoon or night shift to be broken in accordance with clause 25.6? (Noting that it is common ground that clause 25.6 only applies to social and community services employees when undertaking disability services work and home care employees).

3. If the Commission decides that the answer to Question 2 is yes, then what terms and conditions should apply to shiftworkers when working broken shifts?

4. Should the SCHADS Award be varied to 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 (as proposed by the ASU). If so, what form should that variation take?

[253] We provided the parties with a short opportunity to comment on the appropriateness of the questions above and whether any further questions should be posed. No amendments were sought to the draft questions and we confirmed the questions posed in a Statement 153 issued on 6 September 2021.

[254] The parties were directed as follows:

1. Parties are to file written submissions, and any evidence upon which the wish to rely, addressing the questions by 4.00pm (AEST) on Wednesday, 15 September 2021.

2. Parties are to file any written submissions and evidence in reply to the submissions filed pursuant to Direction 1 by 4.00pm (AEST) on Friday, 24 September 2021.

3. All submissions should be filed in both PDF and Word document formats, via email to amod@fwc.gov.au.

4. Parties are at liberty to apply.

[255] In the September 2021 Statement we made the following observations in respect of the material to be filed in accordance with these directions: 154

1. If possible, the various interests should seek to collaborate and file joint submissions (i.e., Joint Employer and Joint Union submissions).

2. The submissions filed should be stand alone documents and should not seek to incorporate, by reference, any earlier submissions.

3. Parties who answer Question 2 in the affirmative should set out the basis on which they contend such a term is necessary (in the s.138 sense) by reference to the evidence in the proceedings.

In this context we note that in its submission of 30 August 2021, Challenge Community Services (Challenge) states that after reviewing its rosters for the period 1 January 2021 to 1 August 2021, approximately 12% of all broken shifts were rostered after 8pm.

If Challenge wishes to rely on any assertions made its in submission, it is to file a witness statement(s) attesting to the views asserted in its submissions in accordance with the above directions.

[256] Initial submissions were received from the following interested parties:

  Joint Unions (15 September 2021)

  Joint Employers (17 September 2021)

  AFEI (17 September 2021)

[257] Challenge Community Services also submitted a witness statement of Mr Andrew Corbett.

[258] Submissions in reply were received from:

  Joint Unions (27 September 2021) 155

  Joint Employers (27 September 2021)

[259] Any party who wished to cross-examine Mr Corbett, or who sought an oral hearing, was to inform the Commission by no later than 4pm on Tuesday 28 September 2021. Absent a request for an oral hearing the remaining matters would be determined on the papers. 156 No such request was received. Accordingly, we proceed to determine the outstanding matters on the basis of the material which has been filed.

[260] We now turn to the submissions advanced in respect of the questions at [252] above.

Question 1: The provisional view

[261] It is generally agreed that we should confirm our provisional view and not express an opinion about:

  the interaction of clauses 25.6 and 29.4 of the SCHADS Award, and

  whether the SCHADS Award currently permits an afternoon or night shift (as defined in clause 29.2) to be broken in accordance with clause 25.6.

[262] The Joint Employer submission contend that if we decide to express an opinion about the meaning of the relevant terms then we should conclude that the SCHADS Award does permit an afternoon or night shift to be broken in accordance with clause 25.6. 157

[263] In accordance with the views of all parties we have decided to confirm our provisional view and in those circumstances it is unnecessary to deal with the construction argument advanced by the Joint Employers.

Question 2: Should the SCHADS Award permit an afternoon or night shift to be broken in accordance with clause 25.6?

[264] The Joint Employers contend that disability support work is ‘regularly undertaken after 8pm, including as part of a broken shift’ and submit that the Award should permit an afternoon or night shift to be broken in accordance with clause 25.6 of the Award. 158 The Joint Employers advance 5 points in this regard:159

  the minimum safety net applying to the sectors covered by the SCHADS Award prior to the Award commencing operation typically permitted the performance of broken shifts by shiftworkers

  the proposed approach would remedy an anomaly or error that appears to have emerged from the Part 10A Award Modernisation Process, to the extent that the SCHADS Award does not permit the performance of broken shifts by shiftworkers or is unclear as to whether broken shifts can be performed by shiftworkers

  the proposed approach would be consistent with the need to implement arrangements whereby employees perform ordinary hours of work after 8pm, which constitute part of a broken shift

  the proposed approach would give effect to an interpretation of the extant provisions that is arguably available, and

  the proposed approach would be reflective of the manner in which work is being arranged in practice, at least by some employers.

[265] The Joint Employers also submit that the proposed approach would: 160

  ensure that the Award is fair to employers and employees

  promote flexible modern work practices and the efficient and productive performance of work

  be consistent with the interests of employers and would moderate the cumulative impact of the changes to be made to the Award as a consequence of these proceedings

  ensure that the Award is simple and easy to understand, and

  be consistent with the need to ensure a stable modern awards system.

[266] The Joint Unions are divided in respect of this issue.

[267] The ASU answers the question in the negative and maintains its position that shift workers should only work their hours continuously. 161

[268] The HSU and UWU do not object to the proposition that the award be varied to permit a shift to be worked in a manner that is not continuous and is therefore ‘broken’. 162

[269] The HSU and UWU submit that the evidence supports a finding that:

‘employees in the disability and home care sectors work broken shifts at times that attract a shift penalty and at times that do not… employers pay shift penalties to employees who work broken afternoon and night shifts.’ 163

[270] In support of the above proposition the HSU and UWU rely on the payslips attached to the Encabo and Rathbone witness statements. 164

[271] The ASU takes a different view and submits that the evidence suggests that ‘there is no significant need for shift workers to work broken shifts in disability services.’ 165

[272] In support of this proposition, the ASU relies on:

  the evidence of Mr Feargus Manning, an employee of The Disability Trust.

  the evidence of Mr William Elrick; who states at paragraph [23] of his statement:

‘In group homes workers will often do a morning shift and an afternoon shift, such as 7am – 10am and then 3pm – 10pm. In home support workers generally have a more fragmented working pattern and may be required to do several shifts in a day. For example, rosters of 7am – 9am, 11am – 1pm, and then 5pm – 7pm are common. These shifts are normally for the purposes of providing meal assistance and personal care to clients.’

[273] We accept that the evidence establishes that disability support work and home care work is undertaken after 8pm, including as part of a broken shift. In particular:

  Andrew Corbett, General Manager People and Safety for Challenge Community Services (Challenge) states that a significant number of Challenge employees are regularly rostered on broken shifts including shifts after 8pm Monday to Sunday.

  employs over 1000 employees; of which close to 600 are regularly rostered on broken shifts. 166 Challenge has reviewed its rosters for the period 1 January 2021 to 1 August 2021 specifically focussing on broken shifts that finished after 8pm Monday to Sunday. During this period, 972 out of 8,185 of the broken shifts were rostered past 8pm (about 12% of all rostered broken shifts).167

  William Elrick, an Area Organiser for the Health Services Union (HSU) gave evidence that:

‘Broken shifts are very common in this sector…

In group homes workers often do a morning and afternoon shift, such as 7am – 10am and then 3pm – 10pm.’ 168

  Augustino Encabo, a support worker with the Community Living Association, attached his roster for the period of 24 September 2018 – 16 December 2018 to his statement. Mr Encabo was rostered to perform various broken shifts that ended after 8pm, including on 8 October 2018, 16 October 2018, 17 October 2018, 24 October 2018, 21 November 2018, 10 December 2018, 11 December 2018 and 12 December 2018.

  Wendy Mason, employed by BaptistCare as Operations Group Manager for Home Services, gave the following evidence:

‘The nature of the aged care industry is such that operations are required in many areas on a 24 hours per day, seven days per week basis. Since the introduction of the consumer directed care model in Home Care in 2015 clients are increasingly requesting services outside the ordinary hours of work. This includes evening services that extent to 10.00pm, sleepovers and service provision on Saturdays, Sundays and Public Holidays. Consequently, the Company is seeking to recruit care service employees that are willing and available to work evening and weekend work…

For example, in rural areas it is not uncommon for a care worker who lives locally to finish work for the day at 5.00pm and be rostered to go out again at 8.00pm to provide medical assistance, meal preparation and/or support to assist the client to bed…

The Company engages employees to work broken shifts. Broken shifts are an essential rostering mechanism in order to be able to effectively meet client requirements in relation to, for example, specified or preferred times for particular services under Consumer Directed Care. Certain services are often inflexible in terms of service time including the administration of or assistance with prescribed medications; early morning preparations for assistance with meals, showering and dressing; and evening preparations for bed which could include a brief service up until 9.00pm or 10.00pm at night.’ 169

  Scott Quinn, employed as a disability support worker by Community Based Support, said that ‘[a] typical day of shifts are 12pm – 1pm, 3pm – 5pm, 5.30pm – 6.30pm and 8pm – 9pm’. Attached to Mr Quinn’s statement were handwritten notes identifying the times at which he worked on various days which identify the performance of broken shifts that finished after 8pm on various occasions.

  Jeffrey Wright, employed by HammondCare as People Services Operations Manager, states at paragraph [18] of his statement, 170:

‘As clients have choice and control over their visit times, visits typically follow peak patterns. 55 per cent of visits take place between 7.00am and 12.00pm and the other 45 per cent span a nine hour period to 9.00pm.’

[274] In the May 2021 Decision, we made a number of findings about working arrangements in the SCHADS sector, including that ‘there is a very high incidence of broken shifts in the home care and disability services sectors’. 171 The evidence also supports a finding that disability support work and home care work is undertaken after 8pm, including as part of a broken shift.

[275] Further, as noted in the Joint Employer reply submissions, the following factual propositions appear to be generally agreed by all parties and are reflective of the evidence: 172

(i) employees in the disability and home care sectors work broken shifts at times that attract shift penalties under the Award;

(ii) employers pay shift allowances (however described) to employees who work broken afternoon and night shifts; and

(iii) broken shifts are worked by employees in the disability and home care sectors at times that attract shift penalties under the Award, for reasons that include the needs of clients.

[276] Given the current practice, the desirability of promoting flexible modern work practices, and the views of most of the interested parties, we are satisfied that the SCHADS Award should permit an afternoon or night shift to be broken in accordance with clause 25.6. The issue now becomes the terms and conditions which are to apply in such circumstances.

Question 3: What terms and conditions should apply to shift workers when working broken shifts?

[277] The Joint Unions contend, in essence, that the terms and conditions that apply to day workers working broken shifts (under clause 25.6) should also apply to shift workers when working broken shifts. In particular, shift workers who work broken shifts should be paid the broken shift allowance in addition to their normal shift penalties. 173

[278] The Joint Unions submit that the draft determination should be amended as follows: 174

‘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.’

[279] The Joint Unions advance 4 points in support of their proposition, as follows:

1. The broken shift allowances are insufficient remuneration for broken afternoon and night work:

‘If the broken shift allowance replaces shift penalties then employees working broken night or afternoon shifts would, in some circumstances, be paid less than an employee working a continuous night shift. This would create a perverse incentive for an employer to break a shift to save costs…

For example, an 8-hour broken shift under the draft determination would cost the employer less than an 8-hour continuous shift at afternoon or night shift rates.’ 175

Attachment B to the Joint Union submission sets out a series of tables comparing continuous afternoon and night shifts with broken afternoon and night shifts.

2. It was never the intention of the May 2021 Decision to reduce the remuneration paid to an employee when working afternoon or night shifts. No such claim was advanced by any party; it is untenable on the merits; and would create ‘a perverse incentive for an employer to break a shift to save costs.’ 176

3. The broken shift allowances and the clause 29 shift penalties are separate and distinct forms of compensation for separate and distinct disutility and disability:

‘An employee who works a ‘shift’ as defined in the award, suffers from a particular disutility associated with working shift work. The Commission should take the view that the penalty rates provided for in clause 29 of the award have been set at a level appropriate to compensate for the disutility associated with working shift work under the Award. No party genuinely contests that the shift rates are properly set.

The broken shift allowance is not intended to compensate employees for the disutility of working at particular times of the day or days of the week which attract a particular disutility. The shift penalties do that.

The purpose of the broken shift allowance is to compensate employees for the disability associated with working a broken shift.’ 177

4. No party has led evidence or made any cogent submissions that would persuade the Commission that the disutility of working an afternoon or night shift has diminished because it is broken. The disutility of working a broken shift is compounded when worked on an afternoon or evening shift. 178

[280] The Joint Employers accept that clause 25.6, varied as proposed by the Commission in the Revised Draft Determination, will regulate the performance of broken shifts and contend that an employee should only be entitled to the shift loading during that portion of the broken shift that gives rise to the entitlement to the shift loading. 179 That is, if an employee is required to work a broken shift that ends at 8.30pm, the afternoon shift allowance should be payable only for the final portion of the broken shift. Similarly, if an employee works on a broken shift at 11am–1pm, 6pm–8.30pm and 9pm–11pm; the afternoon shift allowance would only be payable on the second and third portions of the broken shift.180

[281] In support of their proposal the Joint Employers submit:

‘Shift loadings are, on their face, intended to compensate employees for the disutility of performing work late in the day or early in the morning. If work is performed during a separate portion of a broken shift, that does not of itself enliven an entitlement to the relevant shift allowance, an employee will not experience the relevant disutility in respect of such work. There is accordingly no justification for requiring the payment of shift allowances in such circumstances.’ 181

[282] In short, it is contended that shift allowances compensate employees for the disutility of working unsociable hours and there is no justification or rationale for requiring the payment of shift allowances during portions of a broken shift that do not constitute unsociable hours. 182

[283] The Joint Employers submit that their proposal should be adopted because it would: 183

  moderate the adverse consequences for employers that will flow from the Decision, in the form of increased inflexibility and additional employment costs, for which employers may not receive any additional funding

  address the anomalous extant requirement to pay shift allowances for work that does not in fact result in the disutility for which those shift allowances are payable, and

  ensure that the Award does not contain provisions that are not necessary to ensure that it achieves the modern awards objective.

[284] As to the s.134(1) considerations, the Joint Employers submit: 184

  there is no material before the Commission that might suggest that the proposed approach would materially affect, in an adverse way, the relative living standards and needs of the low paid

  it is unlikely that this matter alone will encourage or discourage collecting bargaining

  the need to promote social inclusion through increased workforce participation is a neutral consideration

  the need to provide additional remuneration for employees:

  working overtime, would be satisfied as employees would continue to be entitled to payment at overtime rates, where relevant

  working unsocial, irregular or unpredictable hours would be satisfied as the Award would continue to provide additional remuneration to employees where unsocial hours are worked

  working weekends or public holidays would be satisfied as employees would be entitled to weekend and public holiday penalty rates if a broken shift is performed in such circumstances, and

  working shifts, would be satisfied as employees would receive shift allowances where a broken shift meets an applicable shift definition,

  the principle of equal remuneration for work of equal or comparable value is a neutral consideration, and

  the proposed approach would ensure that the Award is simple and easy to understand.

[285] In their reply submission the Joint Unions press their submissions and proposed draft determination of 15 September 2021 in which they set out:

  the merit argument for the payment of the broken shift allowance in addition to shift penalties, 185 and

  the reasons why the Commission should not reduce the value of the broken shift allowance. 186

[286] The Joint Unions contend that the Joint Employers’ proposed draft determination ‘is ambiguous’ but that ‘the apparent intention is that each distinct period of work on a broken shift would be treated as a distinct shift for the purposes of clause 29.4.’ 187

[287] The Joint Unions oppose the Joint Employer proposal for 4 reasons: 188

1. The Joint Employers do not propose to vary:

(a) the way in which Saturday, Sunday and Public Holiday penalty rates are paid to employee working broken shifts, and

(b) the way that shift penalties are paid to shift workers who work their hours of work continuously.

The Joint Employers make no attempt to justify their inconsistent approach to additional remuneration for shift work, weekend and public holiday work. The Joint Unions submit that this inconsistency exposes the narrowness of the Joint Employers’ objection to the Joint Union proposal and submit:

‘The only genuine argument advanced by the Employers is a generalised complaint that the combined cost of the broken shift allowance and the clause 29 shift penalties would be excessive, and therefore unfair to employers.’ 189

The Joint Unions contend that no evidence has been adduced that demonstrates the impact of the combined entitlements on employers, and the Commission should not be persuaded that the combination of the broken shift allowance and the shift penalties is excessive.

2. If the Joint Employer proposal is adopted different rules regarding the payment of shift penalties would apply to an employee depending on whether or not they were working a broken or unbroken shift:

‘This would make the Award significantly more complex and impose a severe administrative burden on an employer. In the absence of a positive merit argument in favour of such an arrangement, this militates against the Employers’ proposal.’ 190

3. The broken shift allowance and the shift penalties serve distinct purposes. One cannot simply be replaced by the other. The Joint Unions submit:

‘The Employers have not explained how an unpaid break between periods of work on shift means that some of that works does cause disutility when the entire shift would result in disutility if those same hours were worked without the unpaid break. Shift penalties paid to compensate employees for the disutility associated with afternoon and night shifts. That disutility remains even when the shift is broken. An employee working a broken shift only adds disability to that disutility.’ 191

4. The Joint Employers’ reliance on AMWU v UGL Pty Ltd192 is misplaced. The Joint Unions note that:

(i) the Manufacturing Award provides that all employees must work their hours continuously, and

(ii) shift penalties under the Manufacturing Award are paid for the entire shift, and

(iii) an employee covered by the Manufacturing Award who worked a broken shift would be paid at overtime rates for the second period of work, and

(iv) in the Decision cited, the Commission determined that a shift penalty should be paid in addition to the separate and distinct casual loading.

[288] In our view, the merits favour the position advanced by the Joint Employers.

[289] The position advanced by the Joint Unions would result in the employees being paid a shift penalty (in essence a disutility payment) in circumstances where they do not experience the relevant disutility. For example, under the Joint Unions’ proposal an employee working a 5 hour split shift (9:00am to 11:00am then 5:30pm –8:30pm) would receive the afternoon shift premium for the entire 5 hour shift, despite the disconnect between the morning portion of the shift and that part of the shift which constitutes the unsocial hours (i.e. – the evening portion).

[290] The Joint Employers proposal fits more conformably with the purpose of shift penalties – to compensate employees for the disutility of working late in the day or early in the morning.

[291] We are not persuaded that the adoption of the Joint Employers’ proposal will reduce the remuneration currently paid to an employee who works a broken shift which concludes after 8pm, as illustrated by the example below.

[292] Taking the example above at [289], an employee classified at Level 2.1 would receive the following pay under the current award provisions.

[293] Under the current award provisions:

[294] Under the Joint Employer proposal the same employee would receive the following:

[295] Further, contrary to the Joint Unions’ submission, the Joint Employer proposal is consistent with maintaining the distinct purposes served by broken shift allowances and shift penalties.

[296] We note that the Joint Employer proposal seeks to retain the restriction that night shift allowance is not payable if a broken shift commences before 6.00am. We recognise that this retains an anomaly that exists in the current award

[297] In the August 2021 Decision, we 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. We accepted 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. It is open to parties to raise the night shift restriction as part of the further consideration after 12 months. It is also open to parties to apply to vary the clause at any time.

[298] In relation to the s.134(1) considerations:

  we are not persuaded that the Joint Employer proposal would materially affect the relative living standards and needs of the low paid (s.134(1)(a))

  we are not persuaded that the proposed variation would ‘encourage collective bargaining’; it follows that the s.134(1)(b) consideration provides no support for the proposed variation

  s.134(1)(da) requires that we consider ‘the need to provide additional remuneration for, relevantly, ‘employees working overtime’ and ‘employees working unsocial, irregular or unpredictable hours’. The proposed variation provides such additional remuneration, and

  s.134(1)(f) of the Act requires that we consider ‘the likely impact of any exercise of modern award powers on business, including on productivity employment costs and the regulatory burden’. We accept that the variation proposed will have an impact on employment costs.

[299] The considerations in s.134(1)(c), (d), (e), (g) and (h) of the Act are not relevant in the present context.

[300] 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). We have taken into account those considerations, insofar as they are presently relevant and have decided to vary the SCHADS Award as proposed by the Joint Employers, with some minor amendments to the wording. We are satisfied that this variation is necessary to ensure that the SCHADS Award achieves the modern awards objective.

Question 4: Should the SCHADS Award be varied to 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?

[301] The Joint Unions propose that the SCHADS Award be varied to 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’. 193 The Joint Unions support the Draft Determination filed by the ASU on 9 August 2021. The draft determination filed by the ASU provides for the inclusion of the following new term:

‘27.3 Travel during meal and tea breaks

If an employer requires an employee to travel during a meal break or a tea break that time spent travelling will count as work and will be paid as such for the purposes of this clause.’

[302] In support of their proposed variation the Joint Unions submit that ‘it is likely, given current practices in the sector, that employers will require employees to travel during their work breaks.’ 194 Such a practice is said to be undesirable on the basis that ‘an employee should be able to use their unpaid meal breaks to rest and enjoy their meal in any way they please. If they are required to travel by their employer, then the travel should be treated as work’.195

[303] The Joint Unions contend that as the Award currently stands, it is unclear how travel at the direction of the employer during a meal break is to be treated; it may or may not be ‘work’ for the purposes of the award, depending on when it is performed. 196

[304] The Joint Unions submit that it is necessary to provide a clear entitlement to overtime if an employee is required to travel during their meal break. 197

[305] In their reply submission, the Joint Employers oppose the ASU’s proposed variation and contend that the regulation of work undertaken during meal breaks is currently adequately addressed by clause 27.1 of the Award. 198 Clause 27.1 provides:

‘27.1 Meal breaks

(a) Each employee who works in excess of five hours will be entitled to an unpaid meal break of not less than 30 minutes and not more than 60 minutes duration, to be taken at a mutually agreed time after commencing work.

(b) Where an employee is required to work during a meal break and continuously thereafter, they will be paid overtime for all time worked until the meal break is taken.’

[306] The Joint Employers contend that there is no lack of clarity in the current provisions:

‘The provision entitles an employee to a break and also deals with the prospect that an employee may be required to work during that break. If an employee is required to undertake work during their break in the nature of travelling between work locations, they would be entitled to be paid at overtime rates for such work. Importantly, they are to be paid overtime rates until a meal break is taken. This would logically provide a meaningful incentive for an employer to avoid requiring an employee to undertake work in a manner that prevents them from taking a meal break.’ 199

[307] The Joint Employers submit that there are no sufficient cogent submissions or probative evidence to warrant varying the current meal break provisions: ‘A case for such change has simply not been made out.’ 200 To the extent that the Joint Unions point to some evidence led earlier in the proceedings, the Joint Employers make 4 observations as follows:201

1. The evidence led was adduced in the context of a different claim and consequently, was not the subject of cross examination for the purposes of testing its probative value in the context of the Commission’s consideration of the current proposal.

2. The evidence referred to was primarily directed at the issue of travel undertaken in the course of broken shifts rather than in the context of travel during meal break.

The evidence of Messrs Encabo and Mr Rathbone do not establish that they travel during meal breaks. The evidence of Ms Kinchin is not entirely clear and appears to relate to the practices of her former employer and does not establish that she was required to travel during meal breaks by her current employer.

3. Evidence of the experiences of such a small number of employee witnesses cannot be extrapolated to establish the current practices relating to travel during meal breaks in the sector or the assertion that it is likely that employers will require employees to travel during meal breaks.

4. To the extent that the Joint Unions rely on the evidence to establish that travel is undertaken during a broken shift, as opposed to meal breaks, it does not support the granting of the ASU’s proposed variation which is directed at work undertaken during meal breaks and tea breaks.

[308] The Joint Employers also submit that they are ‘concerned that the Unions’ submission seeks, to some extent, to reagitate the issue of payment for travel undertaken during breaks that occur in the course of a broken shift. That is, travel that is undertaken by an employee between separate engagements on a broken shift.’ 202 The Joint Employers submit that this is not a matter that should be further considered at this time, given the position reached by the Full Bench in relation to travel time in the August 2021 Decision.

[309] The Joint Employers submit that the Joint Unions’ submissions ‘are somewhat unclear as to whether they are directed solely at the issue of work that occurs during meal breaks, or instead directed also at other breaks that may occur during the course of the work day.’ 203

[310] The Joint Employers note that the proposal extends to dealing with travel during tea breaks and it requires that time an employer requires an employee to spend travelling during a meal break will be time worked for the purposes of clause 27 and paid at overtime rates. Clause 27.2 of the Award relevantly provides:

‘27.2 Tea breaks

(a) Every employee will be entitled to a paid 10 minute tea break in each four hours worked at a time to be agreed between the employer and employee.

(b) Tea breaks will count as time worked.’

[311] The Joint Employers submit that clause 27.2 provides that tea breaks will count as time worked and does not permit an employee to be required to work during a tea break: ‘It affords an entitlement to a break and, unlike clause 27.1, does not countenance any work occurring during such a period. Consequently, an employee cannot be required to travel during a tea break.’ 204

[312] The Joint Employers contend that given the requirements of clause 27, ‘there is no apparent need for a variation to deal with travel during tea breaks as proposed by the ASU.’ 205

[313] At this point in time, we are not persuaded that the variation proposed by the Joint Unions is necessary to ensure that the SCHADS Award achieves the modern awards objective. As the Joint Employers submit, a case for change has not been made out. There is insufficient probative evidence to warrant varying the current meal break provision.

[314] The Joint Unions are at liberty to pursue their proposal by making an application to vary the Award once the determination arising from these proceedings has commenced operation.

6. Next Steps

[315] A further revised draft determination is set out at Attachment A. The determination has been updated to take into account changes made in the Casual terms award review 2021 and the 2020-21 Annual Wage Review.

[316] Any comments on the further revised draft determination are to be filed by 4.00pm on Wednesday, 27 October 2021; submissions in reply are to be filed by 4.00pm on Friday, 12 November 2021.

[317] The comments are to be confined to technical amendments are not an opportunity to relitigate matters which have been determined.

[318] All submissions are to be sent to chambers.ross.j@fwc.gov.au.

[319] The variation determination will be finalised on the papers, by Deputy President Clancy.

PRESIDENT

Appearances:

B Ferguson for the Australian Industry Group with R Bhatt.

S Lo for the Australian Federation of Employers and Industries with V Lin.

M Pegg for National Disability Services.

B Redford for United Workers’ Union.

M Robson for the Australian Services Union.

K Scott for Australian Business Industrial and the New South Wales Business Chamber; Aged and Community Services Australia and Leading Age Services Australia with C Bailey.

L Svendsen for the Health Services Union.

Hearing details:

2021.

Sydney, Melbourne (via video):

September 1.

Final written submissions:

Joint Employers, 27 September 2021

Joint Unions, 27 September 2021.

Printed by authority of the Commonwealth Government Printer

<PR733704>

ATTACHMENT 1 – FURTHER REVISED DRAFT DETERMINATION

fwc_logo

MA000100  PRXXXXXX

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]

Social, community, home care and disability services

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE

MELBOURNE, XX MONTH 2021

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

A. Further to the decisions issued by the Full Bench of the Fair Work Commission on 4 May 2021 ([2021] FWCFB 2383), 25 AUGUST 2021 ([2021] FWCFB 5244) 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) An employer must not require a part-time employee to work additional hours in excess of their guaranteed hours. However, an employee may agree to work hours that are additional to their guaranteed hours.

(g) Review of guaranteed hours

(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(b).

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 February 2022 until 1 October 2022.

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

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

(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 42 days’ notice to the employee in writing.

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

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

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

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

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

9. By inserting new clauses 20.3 and 20.4 as follows:

20.3 Laundering of clothing other than uniforms

(a) If during any day or shift, the clothing of an employee (other than a uniform) is soiled in the course of the performance of their duties, the employee will be paid a laundry allowance of 32 cents per shift provided that:

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

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

20.4 Repair and replacement of clothing other than uniforms

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

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

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

(iii) The damage or soiling of an employee’s clothes is not caused by the negligence of the employee.

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

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

20.11 On call allowance

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

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

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

11. By inserting a new clause 20.12 as follows:

20.12 Broken shift allowance

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

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

12. 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.

13. 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. If less than 12 hours’ notice is provided, 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 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;

(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).

14. 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, overtime and public holiday penalty rates to be paid in accordance with clauses 26, 28 and 34.

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

(i) The night shift allowance is not payable for work performed on a night shift that commences before 6.00 am.

(ii) The shift allowances are only payable in respect of periods of work in a broken shift that satisfy the definitions of afternoon shift, night shift and public holiday shift (as defined by clause 29.2 and in accordance with clause 25.6(e)(i)).

Example: If an employee performs work on a broken shift from 9.00 am – 11:00am (first period of work) and then from 5:30pm – 8:30pm (second period of work), the afternoon shift allowance will be payable on the second period of work only.

(f) The span of hours for a broken shift is up to 12 hours. All work performed beyond a span of 12 hours will be paid at double time.

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

15. 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.

16. 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.

17. By inserting a new clause 25.10 as follows:

25.10 Remote work

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

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

(i) not part of their ordinary hours of work rostered in accordance with clause 25.5 (or, in the case of casual employees, not a designated shift); and

(ii) not additional hours worked by a part-time employee under clause 28.1(b)(iii) or 10.3(e) or overtime contiguous with a rostered shift; and

(iii) not required to be performed at a designated workplace.

(c) Minimum payments for remote work

(i) Where an employee performs remote work, they will be paid for the time spent performing remote work, with the following minimum payments applying:

(A) where the employee is on call between 6.00am and 10.00pm – a minimum payment of 15 minutes’ pay;

(B) where the employee is on call between 10.00pm and 6.00am – a minimum payment of 30 minutes’ pay;

(C) where the employee is not on call - a minimum payment of one hour’s pay;

(D) where the remote work involves participating in staff meetings or staff training remotely - a minimum payment of one hour’s pay.

(ii) Any time worked continuously beyond the minimum payment period outlined above will be rounded up to the nearest 15 minutes and paid accordingly.

(iii) Where multiple instances of remote work are performed on any day, separate minimum payments will be triggered for each instance of remote work performed, save that where multiple instances of remote work are performed within the applicable minimum payment period, only one minimum payment period is triggered.

(d) Rates of pay for remote work

(i) Remote work will be paid at the employee’s minimum hourly rate unless one of the following exceptions applies:

(A) Remote work performed outside the span of 6am-8pm will be paid at the rate of 150% of the minimum hourly rate for the first two hours and 200% of the minimum hourly rate thereafter or, in the case of casual employees, at 175% of the minimum hourly rate for the first two hours and 225% of the minimum hourly rate thereafter;

(B) Remote work performed in excess of 38 hours per week or 76 hours per fortnight will be paid at the applicable overtime rate prescribed in clause 28.1;

(C) Remote work performed in excess of 10 hours per day will be paid at the rate of 150% of the minimum hourly rate for the first two hours and 200% of the minimum hourly rate thereafter or in the case of casual employees, 175% of the minimum hourly rate for the first 2 hours and 225% of the minimum hourly rate thereafter;

(D) Remote work performed on a Saturday will be paid at the rate of 150% of the minimum hourly rate or, in the case of casual employees, 175% of the minimum hourly rate;

(E) Remote work performed on a Sunday, it will be paid at the rate of 200% of the minimum hourly rate or, in the case of casual employees, 225% of the minimum hourly rate;

(F) Remote work performed on a public holiday will be paid at the rate of 250% of the minimum hourly rate or, in the case of casual employees, 275% of the minimum hourly rate.

(ii) The rates of pay in clause 25.10(d)(i) above are in substitution for and not cumulative upon the rates prescribed in clauses 26, 28, 29, and 34.

(e) Other requirements

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

(f) Miscellaneous provisions

(i) In this clause, the term ‘minimum hourly rate’ means the weekly rates prescribed by clauses 15, 16 and 17 (as applicable) divided by 38.

(ii) Where remote work is performed, the minimum payments at clause 10.5 do not apply.

(iii) The performance of remote work will not count as work or overtime for the purpose of the following clauses:

(A) Clause 25.3 - rostered days off;

(B) Clause 25.4 - rest breaks between rostered work;

(C) Clause 28.3 - rest period after overtime;

(D) Clause 28.5 - rest break during overtime.

18. 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.

19. By deleting clause 28.4 and inserting the following:

28.4 Recall to work overtime

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

20. By deleting clause 29.4 and inserting the following:

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

21. 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.

22. By updating cross-references accordingly.

B. Item 5 of this determination comes into operation on 1 February 2022. In accordance with s.165(3) of the Fair Work Act 2009 this item does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after 1 February 2022.

C. Items 1 to 4 and 6 to 22 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

 1   [2021] FWCFB 2383 (‘May 2021 Decision’).

 2   Ibid at [1262].

 3   [2021] FWCFB 4716.

 4   [2021] FWCFB 5244 (‘August 2021 Decision’).

 5   [2021] FWCFB 4863.

 6   The UWU confirmed that it did not intend to file any reply submissions. See UWU correspondence, 30 August 2021.

 7   [2021] FWCFB 5493.

 8   Australian Services Union, Submission, ‘Submission of the Australian Services Union’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26, 30 August 2021 at [9] (‘ASU Submission, 30 August 2021’).

 9   ASU Submission, 30 August 2021 at [12].

 10   ASU Submission, 30 August 2021 at [13].

 11   ASU Submission, 30 August 2021 at [14]–[15].

 12   ASU Submission, 30 August 2021 at [17].

 13   ASU Submission, 30 August 2021 at [18].

 14   ASU Submission, 30 August 2021 at [20].

 15   ASU Submission, 30 August 2021 at [21].

 16   ASU Submission, 30 August 2021 at [22]–[23].

 17   ASU Submission, 30 August 2021 at [28].

 18   ASU Submission, 30 August 2021 at [29].

 19   National Disability Services, ‘Submission in Reply’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26, 30 August 2021, [18].

 20   See Background Paper 3, 31 August 2021 at [158].

 21   Transcript of Proceedings, 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26 (Fair Work Commission, Ross J, Clancy DP and Lee C, 1 September 2021) at PN388 (‘Transcript, 1 September 2021’). See also Transcript, 1 September 2021 at PN388.

 22   Transcript, 1 September 2021 at PN389–414.

 23   August 2021 Decision at [326].

 24   Australian Business Industrial and others, ‘Submission’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26, 2 September 2021 at [4].

 25   National Disability Services, ‘Submission in Reply – Draft Determination’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26, 8 September 2021 at [2] (‘NDS Submission, 8 September 2021’); AFEI correspondence, 8 September 2021.

 26   Health Services Union, ‘Submission and Draft Determination’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26, 1 September 2021 (‘HSU Submission, 1 September 2021’).

 27   NDS Submission, 8 September 2021 at [4]–[7]; AFEI correspondence, 8 September 2021.

 28   May 2021 Decision at [882].

 29   Ai Group, ‘Further Submission’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26 at 25 August 2021 [98] (‘Ai Group Submission, 25 August 2021’).

 30   Ibid at [100].

 31   Australian Federation of Employers and Industries, ‘Submissions pursuant to Fair Work Commission Statement dated 9 August 2021’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26, 25 August 2021 at [20]–[21].

 32   National Disability Services, ‘Final Stage – remote response, damaged clothing, and broken shift’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26, 25 August 2021 at [4] (‘NDS Submission, 25 August 2021’).

 33   Australian Services Union, ‘Submission of the Australian Services Union (corrected), Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26, 26 August 2021 at [82] (‘ASU Submission, 26 August 2021 (corrected)’).

 34   Health Services Union, ‘Submission of Health Services Union’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26, 25 August 2021 at [17]–[18].

 35   United Workers Union, ‘Submissions - United Workers Union’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26, 25 August 2021 at [29] (‘UWU Submission, 25 August 2021’).

 36   Australian Business Industrial and others, ‘Submission’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26, 30 August 2021 [49]–[51] (‘ABI Submission, 30 August 2021’).

 37   Transcript, 1 September 2021 at PN4-44.

 38   May 2021 Decision at [882].

 39   Ibid at [719].

 40   Ibid at [733].

 41   ABI correspondence, 23 August 2021.

 42   Transcript, 1 September 2021 at PN59–79.

 43   See Australian Business Industrial and others, ‘Submission’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26, 25 August 2021 at [23] (‘ABI Submission, 25 August 2021’).

 44   Transcript, 1 September 2021 at PN80-109.

 45   ABI Submission, 25 August 2021 at [24].

 46   Ibid at [26].

 47   Ibid at [27].

 48   ABI Submission, 30 August 2021 at [28]–[35].

 49   Australian Industry Group, ‘Reply Submission’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26, 30 August 2021, [59] (‘Ai Group Submission, 30 August 2021’).

 50   Ibid at [65].

 51   Ibid at [67].

 52   Ibid at [68].

 53   Ibid at [70].

 54   ABI Submission, 25 August 2021 at [22(c)].

 55   Ai Group Submission, 30 August 2021 at [71].

 56   ABI & Ai Group Joint Report, 9 September 2021.

 57   Ibid at [5]. The numbering reflects that used in Background Paper 3.

 58   Ibid at [6].

 59   Ai Group Submission, 30 August 2021 at [83].

 60   ABI & Ai Group Joint Report, 9 September 2021 at [7].

 61   Ibidat [9]–[10].

 62   Ibidat [11]. See also Background Paper 3, 31 August 2021 at [98].

 63   Ibidat [12].

 64   Ibid at [14].

 65   Transcript, 1 September 2021 at PN263–PN275.

 66   ABI & Ai Group Joint Proposal, 9 September 2021 at [17].

 67   Ibid at [17].

 68   Ibid at [18].

 69   Ibid at [21].

 70   Exposure Draft published on 15 March 2019.

 71   ABI & Ai Group Joint Report, 9 September 2021 at [25].

 72   Australian Industry Group, ‘Further Submission – Remote Response’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26, 14 September 2021 at [3] (‘Ai Group Submission, 14 September 2021’).

 73   Ibid at [4].

 74   Ibid at [5].

 75   Ibid at [7(a)].

 76   Ibid at [8].

 77   Ibid at [10] – [16].

 78   Ibid at [18]–[47].

 79   Australian Industry Group, ‘Submissions, Evidence and Application for Confidentiality Order’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26, 3 August 2021 at [12]–[76], Annexure A (‘Ai Group Submission, 3 August 2021’).

 80   Ai Group Submission, 25 August 2021 at [70] – [95].

 81   Ai Group Submission, 30 August 2021 at [49] – [147].

 82   Australian Federation of Employers and Industries, ‘Submissions pursuant to Fair Work Commission Amended Directions dated 8 September 2021’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26, 15 September 2021, [11] (‘AFEI Submission, 15 September 2021’). See Ai Group Submission, 14 September 2021 at [3]–[17].

 83   AFEI Submission, 15 September 2021 at [13]–[16].

 84   Ibid at [17]–[18].

 85   See May 2021 Decision at [722].

 86   AFEI Submission, 15 September 2021 at [22].

 87   Ibid at [23].

 88   [2021] FWCFB 2057 at [67]–[68].

 89   ABI Submission, 25 August 2021 at [19].

 90   Ibid at [40]–[47].

 91   NDS Submission, 25 August 2021 at [16].

 92   ASU Submission, 26 August 2021 (corrected) at [63].

 93   See Exhibit ASU 1; Exhibit ASU 8. Both of these statements were tendered during the Tranche 2 proceedings.

 94   Australian Services Union, ‘Statement of Feargus John Macbeth Manning’, dated 20 July 2021’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26.

 95   Australian Services Union, ‘Statement of Paul McKenzie, dated 21 July 2021’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26 (‘Statement of Paul McKenzie’).

 96   Australian Services Union, ‘Statement of Daniel Timothy Trickett, dated 20 July 2021’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26 (‘Statement of Daniel Trickett’)

 97   ASU Submission, 26 August 2021 at [76].

 98   Australian Federation of Employers and Industries, 'Submissions pursuant to Fair Work Commission Statement dated 9 August 2021’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26, 30 August 2021 at [11].

 99   Transcript, 1 September 2021 at PN141.

 100   Ibid at PN141.

 101   Ibid at PN145.

 102   HSU Submission, 25 August 2021 at [12].

 103   UWU Submission, 25 August 2021 at [25]–[26].

 104   ABI Submission, 30 August 2021 at [17].

 105   Transcript, 1 September 2021 at PN157168.

 106   ABI Submission, 30 August 2021 at [34].

 107   Ibid at [35].

 108   Ibid at [36]–[39].

 109   Ibid at [42].

 110   Ibid at [44].

 111   Ibid at [45].

 112   Ibid at [46]–[48].

 113   Transcript, 1 September 2021 at PN192–201.

 114   Ibid at PN176–187; also see ABI response at PN188–190.

 115   Ibid at PN197.

 116   Ibid at PN204–206.

 117   Statement of Paul McKenzie at [28]–[29].

 118   Statement of Daniel Trickett at [9], [10] and [17]–[19].

 119   ASU Submission, 30 August 2021 at [70].

 120   ASU Submission, 26 August 2021 at [71]–[74].

 121   Transcript, 1 September 2021 at PN113–120.

 122   Ibid at PN113.

 123   Ibid at PN188.

 124   4 yearly review of modern awards - Penalty Rates [2017] FWCFB 1001 at [150].

 125   Ibid at [151]–[153].

 126   May 2021 Decision at [733].

 127   Ibid at [488].

 128   Ibid at [1266].

 129   Joint Union Submission, 15 September 2021 at [50].

 130   Australian Business Industrial and others, ‘Submission’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26, 3 August 2021 at [11] (ABI Submission, 3 August 2021’).

 131   Ibid at [15].

 132   Ibid at [16].

 133   Ibid at [20].

 134   Ibid at [23].

 135   Ibid at [25].

 136   Ibid at [22].

 137   AFEI Submission, 3 August 2021 at [51]–[53].

 138   Ibid at [53].

 139   Ai Group Submission, 25 August 2021 at [60]–[69].

 140   Joint Employer Submission, 17 September 2021 at [79].

 141   Ibid at [80].

 142   Joint Union Submission, 15 September 2021 at [50].

 143   Joint Employer Submission, 17 September 2021 at [85].

 144   May 2021 Decision at [232].

 145   Exhibit ASU 10 [32]; Exhibit ASU 9 [16]; Exhibit HSU 29 [13]–[15]; Exhibit HSU 5 [44]–[48]; [57]–[58]; Exhibit HSU 4 [21]–[22]; [24]–[25]; Exhibit HSU 30 [21]–[22]; [30]–[32]; [35]; [37]–[38]; Exhibit HSU 26 [7]–[9]; Exhibit HSU 31, [20]; [27]; [39]; [40]–[43]; Exhibit HSU 3 [19]; [21]–[23]; Exhibit UV 4 [18]–[24]; Exhibit UV 1 [12]; [15]–[17].

146 May 2021 Decision at [550].

 147   ABI Submission, 3 August 2021 at [21].

 148   Joint Employer Submission, 27 September 2021 at [29].

 149   Transcript of Proceedings, 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26 (Fair Work Commission, Ross J, Clancy DP and Lee C, 6 August 2021) at PN264 (Ross J) (‘Transcript, 6 August 2021’).

 150   Ai Group correspondence, 31 August 2021.

 151   [2021] FWCFB 5493.

 152   Ibid at [16].

 153   [2021] FWCFB 5545.

 154   [2021] FWCFB 5493 at [25].

 155   We note for completeness that this submission, although dated 21 September 2021, was received on 27 September 2021.

 156   Statement [2021] FWCFB 6011.

 157   Joint Employer Submission, 17 September 2021 at [7]–[35].

 158   Ibid at [40].

 159   Ibid at [37].

 160   Ibid at [38].

 161   Joint Union Submission, 27 September 2021 at [7].

 162   Ibid at [10].

 163   Joint Union Submission, 15 September 2021 at [12].

 164   See Exhibit ASU 10; Exhibit ASU 9. Both of these witness statements were filed during the Tranche 2 proceedings.

 165   ASU Submission, 25 August 2021 at [28].

 166   Challenge Community Services, ‘Submission – Statement of Andrew Corbett’, Submission in 4 yearly review of modern awards — Social, Community, Home Care and Disability Services Industry Award 2010, AM2018/26, Annexure A, at [6].

 167   Ibid at [14]

 168   Exhibit HSU 3 [20], [23]. This witness statement was tendered during the Tranche 1 proceedings.

 169   Exhibit UV 8 [34], [58], [66]. This statement was tendered during the Tranche 1 proceedings.

 170   Exhibit ABI 3.

 171   May 2021 Decision at [232].

 172   Joint Employer Submission, 27 September 2021 at [11].

 173   Joint Union Submission, 15 September 2021 at [35].

 174   Ibid at [36].

 175   Ibid at [38]–[39].

 176   Ibid at [38].

 177   Ibid at [45]–[47].

 178   Ibid at [48].

 179   Joint Employer Submission, 17 September 2021 at [68(a)].

 180   Ibid at [87].

 181   Ibid at [88]; citing in support Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v UGL Pty Ltd t/a UGL Limited [2020] FWC 889 at [49]; Transport Workers’ Union v SCT Logistics [2013] FWC 1186 at [44]; Municipal Officers’ (Melbourne and Metropolitan Tramways Board) Award 1970 [1976] CAR 1905.

 182   Joint Employer Submission, 17 September 2021 at [92].

 183   Ibid at [93].

 184   Ibid at [94].

 185   Joint Union Submission, 15 September 2021 at [35]–[49].

 186   Ibid at [50]–[54].

 187   Joint Union Submission, 27 September 2021 at [31].

 188   Ibid at [33]–[40].

 189   Ibid at [35].

 190   Ibid at [37].

 191   at [39].

192 [2020] FWC 889.

 193   Joint Union Submission, 15 September 2021 at [55].

 194   Ibid at [56].

 195   Ibid at [56].

 196   Ibid at [57].

 197   Ibid at [58].

 198   Joint Employer Submission, 27 September 2021 at [55]–[56].

 199   Ibid at [60].

 200   Ibid at [75].

 201   Ibid at [69]–[75].

 202   Ibid at [76].

 203   Ibid at [62].

 204   Ibid at [82].

 205   Ibid at [84].