Fair Work Act 2009

s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error

s.157 - Application to vary a modern award

Application by Parkerville Children and Youth Care Incorporated

Application by Australian Municipal, Administrative, Clerical and Services Union & Others

SOCIAL, COMMUNITY, HOME CARE AND DISABILITY SERVICES INDUSTRY AWARD 2010

[MA000100]

Social, community, home care and disability services

Applications to vary the Social, Community, Home Care and Disability Services Industry Award 2010.

• [1] On 2 November 2023, The Australian Industry Group (Ai Group) applied to vary the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award). The Ai Group seeks variations that

would result in the [SCHADS] Award expressly and clearly identifying that the performance of work on shifts before and after (and that are each contiguous with one end of) a sleepover, are permitted as separate shifts each constituting ordinary hours.

• [2] The Ai Group advances its application under s 160 of the Fair Work Act 2009 (Cth) (FW Act) or, in the alternative, under s 157. Its application was the subject of conciliation conferences before Deputy President Wright on 31 January and 6 March 2024. Interested parties did not reach agreement on the variations that should be made.

• [3] On 7 March 2024, Parkerville Children and Youth Care Incorporated (Parkerville) also applied to vary the SCHADS Award under s 160 of the FW Act or, in the alternative, under s 157. In its application, Parkerville set out that the variations it seeks:

(a) would clarify Award coverage in respect of persons providing therapeutic care duties (Therapeutic Carers) in the social and community services sector;

(b) would clarify that the performance of work on shifts before and after (and that are each contiguous with one end of) a sleepover, are permitted as separate shifts each constituting ordinary hours; [and]

(c) in the alternative to (b), would extend application of the '24 hour care' terms in the Award to Therapeutic Carers.

• [4] On 22 March 2024, I held a directions hearing in respect of both the Ai Group's and Parkerville's applications. The parties present agreed[1] that the Commission should issue a draft determination discretely addressing the variation proposed in item (a) of Parkerville's application, for comment. This is dealt with later in this decision.

• [5] I subsequently issued directions in relation to the Ai Group's application and items (b) and (c) of Parkerville's application. On 11 June 2024, the Ai Group and Parkerville filed submissions and evidence in support of their respective applications in accordance with those directions. The Ai Group's evidence comprises six witness statements. It has filed both redacted and unredacted versions of those statements and has applied for a confidentiality order pursuant to s 594 of the FW Act in respect of the information that has been redacted.

• [6] On 9 July 2024, the Australian Municipal, Administrative, Clerical and Services Union (ASU), the Health Services Union (HSU), The Australian Workers' Union (AWU) and the United Workers' Union (UWU) requested the unredacted versions of the Ai Group's witness statements. I directed the Ai Group and the above unions to confer regarding access to those documents.

• [7] On 12 July 2024, the ASU, HSU, AWU, UWU and CPSU, the Community and Public Sector Union (Unions) advised my chambers that they opposed the Ai Group's application for a confidentiality order to the extent that it sought to protect financial information concerning the witnesses' employers, matters associated with the funding arrangements in place between the witnesses' employers and the relevant government department and information that is otherwise commercially sensitive. They submitted that issuing such an order would be inconsistent with the principle of open justice.

• [8] On 15 July 2024, the Ai Group advised my chambers that it had offered to provide representatives of each of the Unions access to the unredacted witness statements if they would sign and return a template undertaking it had prepared, a copy of which it attached to the correspondence. The Unions had instead offered to provide undertakings in the name of each union, rather than by each individual, which the Ai Group submitted was inadequate.

• [9] On 16 July 2024, the Unions lodged a joint application to vary the SCHADS Award under s 157 of the FW Act. The Unions' application attached a draft determination proposing the following:

... it is ordered that the [SCHADS Award] be varied []:

1. By deleting clause 25.4 and inserting a new clause 25.4:

a) An employee will be allowed a break of not less than 10 hours between the end of one shift or period of work and the start of another.

b) Notwithstanding the provisions of subclause (a), by agreement between the employee and employer, the break between:

1. the end of a shift and the commencement of a shift directly preceding a sleepover; or
2. a shift commencing after the end of a shift directly following a sleepover

1. If an employee is required by the employer to resume or continue work without having a break under clause 25.4(a) or 25.4(b), the employee must be paid a 200% of their ordinary hourly rate, or 225% of their ordinary hourly rate if the employee is a casual employee, until they are allowed a break of 10 hours (or 8 hours if clause 25.4(b) applies).

d) For the avoidance of doubt, a period of sleepover in accordance with clause 25.7 does not constitute a break within the meaning of this clause.

1. By deleting clause 25.7 and inserting a new clause 25.7:

a) A sleepover means when an employer requires an employee to sleep[] overnight at premises where the client for whom the employee is responsible is located (including respite care) and is not a 24 hour shift pursuant to clause 25.8 or an excursion pursuant to clause 25.9.

b) The provisions of clause 25.5 apply for a sleepover. An employee may refuse a sleepover in the circumstances contemplated in clause 25.5(d)(i) but only with reasonable cause.

1. An employer will not require an employee to sleep over where:

(i) the employee is not provided with a separate and lockable room with a bed and clean linen; or

(ii) the nature of the work environment and disturbances, including the activities and behaviour of clients, make it unsafe or unreasonable to require an employee to sleep over.

d) The span for a sleepover will be a continuous period of 8 hours.

e) Employees will be provided with a separate lockable room with a bed and clean linen, the use of appropriate facilities (including access to food preparation facilities and staff facilities where they exist) and free board and lodging for each night when the employee sleeps over.

f) An employee will be entitled to the greater of the following payments for each night that they sleep over:

(i) A sleepover allowance of 15.25% of the Standard Rate; or

(ii) Four hours payment at the employee's ordinary rate of pay plus any weekend rates payable under clause 26 - Saturday and Sunday work or shift premiums payable under clause 28 - Shiftwork.

g) In the event of the employee on sleepover being required to perform work during the sleepover period, the employee will be paid for the time worked at the prescribed overtime rate with a minimum payment as for one hour worked. Where such work exceeds one hour, payment will be made at the prescribed overtime rate for the duration of the work.

h) An employer may roster an employee to perform work immediately before and/or immediately after the sleepover period, but must roster the employee or pay the employee for at least four hours' work or at least one of those periods of work. The payment prescribed by clause 25.7(f) will be in addition to the minimum payment prescribed by this clause.

1. The dispute resolution procedure in clause 9 of this Award applies to the sleepover provisions.

1. By inserting the words 'or shift' after the word 'day' in the first sentence of clause 28.1(a).

1. By inserting the words 'or shift' after the word 'day' in the first sentence of clause 28.1(b)(ii).

• [10] On the same date, the Unions applied for a procedural direction that their application be joined with the Ai Group's and Parkerville's applications.

• [11] On 24 July 2024, the Unions requested an extension of time to 3 September 2024 in which to file their submissions and evidence in response to the Ai Group's and Parkerville's applications. They also proposed other directions for the filing of material in relation to their own application.

• [12] On 30 July 2024, I held a directions hearing for all three applications at which I heard the parties in relation to:

(1) the Ai Group's application for a confidentiality order;

(2) whether the Unions' application should be heard together with the Ai Group's application and items (b) and (c) of Parkerville's application; and

(3) the Unions' extension of time request and proposed directions in relation to their own application.

• [13] This decision determines those three issues.

Ai Group's application for a confidentiality order

• [14] At the 30 July 2024 directions hearing, the Unions reiterated their opposition to a confidentiality order on the basis that it would be contrary to the principle of open justice, but indicated that they would 'live with' such an order since it would at least obviate what they saw as the onerousness of requiring each individual who would access the unredacted witness statements to sign and return an undertaking.

• [15] Having reviewed the information that the Ai Group has redacted, I am satisfied that I should issue a confidentiality order to protect commercially sensitive information. I note that the versions of the witness statements currently published on the Commission's webpage for these matters also redact personal identification information in accordance with the Commission's usual practice. I am further satisfied that the redacted information should be provided to the Unions for the purpose of responding to the Ai Group's application subject to the confidentiality order applying to the Unions and any relevant officers, employees, members or potential expert witnesses.

• [16] The confidentiality order [PR777752] is issued together with this decision.

• [17] Any other party that wishes to access the unredacted witness statements may separately apply for access.

• [18] The Ai Group and Parkerville indicated at the 30 July 2024 directions hearing that, provided the hearing of their applications was not unduly delayed as a result, they would not oppose the proposed variations set out in items 1, 3 and 4 of the Unions' draft determination (refer [9] above) being determined together with their applications. However, they submitted that item 2 of the Unions' draft determination proposes several substantive variations to clause 25.7 - Sleepovers that go beyond the scope of the Ai Group's application and items (b) and (c) of Parkerville's application. These include:

• not requiring an employee to sleep over if it is 'unsafe or unreasonable' to do so due to the environment or clients' behaviour;
• adding a requirement that the separate room in which an employee is to sleep over is lockable; and
• significantly increasing the allowance payable for each night on which an employee sleeps over.

• [19] Given the scope of the subject matter of item 2 of the Unions' draft determination, the difference between that subject matter and that of the Ai Group's and Parkerville's applications, the late filing of the Unions' application and the consequential difficulty in programming all three applications together without compromising early hearing dates for the two earlier filed, I do not consider it appropriate for the whole of the Unions' application to be heard together with the Ai Group's and Parkerville's applications.

• [20] The proposed variations set out in items 1, 3 and 4 of the Unions' draft determination will be heard together with the Ai Group's and Parkerville's applications. After these matters have been heard, I will separately list the Unions' application for directions in relation to the variations proposed in item 2 of their draft determination.

• [21] The current deadline for any party opposing the Ai Group's application and items (b) and (c) of Parkerville's application to file its submissions and evidence is 6 August 2024. The Unions have advised that the expert reports they propose to file in this regard will not be ready until the last week of August. The extension sought by the Unions was not opposed and I grant it.

• [22] Accordingly, items 2 through 5 of the directions issued on 23 May 2024 are vacated. I make the following directions in their place:

1. Any party that opposes the Ai Group's application (matter AM2023/28) and items (b) and (c) of Parkerville's application (matter AM2024/16) is to file written submissions and any evidence upon which they seek to rely by 4:00 pm (AEST) on Tuesday, 3 September 2024.

1. The Unions are to file written submissions and any evidence upon which they seek to rely in support of items 1, 3 and 4 of their draft determination in matter AM2024/30 by 4:00 pm (AEST) on Tuesday, 3 September 2024.

1. Ai Group, Parkerville and any party supporting the application in matter AM2023/28 and items (b) and (c) of the application in matter AM2024/16 are to file submissions and any evidence upon which they seek to rely in reply by 4:00 pm (AEST) on Friday, 27 September 2024.

1. Any party that opposes the application in matter AM2024/30 is to file written submissions and any evidence upon which they seek to rely by 4:00 pm (AEST) on Friday, 27 September 2024.

• [23] The Ai Group's application, items (b) and (c) of Parkerville's application and items 1, 3 and 4 of the Unions' application will be listed together for hearing before an Expert Panel for the Care and Community Sector in person in Sydney on 4-6 November 2024. Witnesses will be permitted to appear by video link using Microsoft Teams if not located in Sydney and unable to attend in person. A notice of listing will issue together with this decision.

• [24] There will also be a directions hearing listed by the presiding member of the expert panel for a date after 27 September 2024 to consider the programming of witnesses and submissions for the hearing.

• [25] A draft determination to vary the SCHADS Award pursuant to item (a) of Parkerville's application is published together with this decision. Any party which opposes this part of the application shall file submissions indicating the basis of this opposition by 4:00 pm (AEST) on Friday, 23 August 2024. If no submissions are received in opposition to the draft determination by that date, the Commission may proceed to make the variation without further notice to the parties.

M Follett SC with M Garozzo, counsel and R Bhatt for The Australian Industry Group.

A Crocker, counsel with S Billing, solicitor for Parkerville Children and Youth Care Incorporated.

M Robson for the Australian Municipal, Administrative, Clerical and Services Union.

A McRobert for CPSU, the Community and Public Sector Union.

K Scott and L Roper for Australian Business Industrial and Business NSW.

Sydney by video link using Microsoft Teams (directions):

1. [1]Transcript, 22 March 2024 PNs 38-45.

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