The attached document replaces the document previously issued with the above code on 22 December 2025.

Ms Biggs' name has been corrected in paragraphs [157] and [158].

[2025] FWCFB 292

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 - Rostering of work to be performed immediately before or after a sleepover period - Whether the SCHADS Award is ambiguous or uncertain for the purposes of s 160(1) of the Fair Work Act 2009 (Cth) - Whether sleepover period constitutes a break from work - Whether period of work before and after a sleepover period constitute part of a single shift - Whether variation to remove an ambiguity or uncertainty and whether variation necessary to achieve the modern awards objective - SCHADS Award is ambiguous or uncertain - Sleepover period should not be regarded as a break from work - Justification established for a longer shift where part is performed before and part after a sleepover by agreement - Draft determination to vary the SCHADS Award published.

[1] A sleepover refers to a period during which an employee is required to remain overnight at a workplace, typically to be available to assist or provide care or assistance to clients as needed, while not being engaged in active duties for the entire period. The employee is permitted to sleep and generally required to be provided with facilities to allow them to do so but may be interrupted if the need to perform work arises. The payment of, and conditions related to, sleepover periods or shifts has given rise to controversy over many years. This decision concerns the provision made in the Social, Community, Home Care and Disability Services Award 2010 (the SCHADS Award) with respect to periods of work engaged in prior to, and immediately following, a sleepover period.

[2] There are three applications presently before the Commission, each seeking variations to be made to the SCHADS Award in relation to the rostering and pay arrangements relating to sleepover periods. Those applications have been made, respectively, by the Australian Industry Group (the Ai Group), Parkerville Children and Youth Care Incorporated (Parkerville) and a group of unions comprising the Australian Municipal, Administrative, Clerical and Services Union (ASU), the Health Services Union (HSU), the Australian Workers' Union (AWU), the United Workers' Union (UWU) and the Community and Public Sector Union (CPSU) (collectively, the Joint Unions).

[3] The application made by the Ai Group seeks that the SCHADS Award be varied under s 160 of the Fair Work Act 2009 (Cth) (the Act) to remove an ambiguity or uncertainty or, in the alternative, under s 157 of the Act on the basis that the variation is necessary to achieve the modern awards objective. The substantive effect of the variation sought by the Ai Group is described as being to make clear that:

• (a) shifts immediately before and immediately after a sleepover may be rostered as separate shifts of ordinary hours; and

• (b) the period of a sleepover in such a case constitutes a break between shifts.

[4] In summary, the Ai Group submits that the Commission should be satisfied that the SCHADS Award is ambiguous and/or uncertain as to its treatment of two periods of work on either side of a sleepover, and that the variation is appropriate to be made under s 160(1) of the Act to remove that ambiguity and uncertainty. It also submits that the Commission should specify under s 165(2) that the variation take effect retrospectively, on and from the commencement of the SCHADS Award on 1 January 2010. In the alternative, the Ai Group submits that the Commission should be satisfied that it is necessary to make the variation it seeks under s 157(1)(a), in order to achieve the modern awards objective. The application seeks variations to clauses 25.4 (Rest breaks between rostered work), 25.7 (Sleepovers) and 29.4 (Shiftwork) of the SCHADS Award.

[5] Parkerville, similarly, applied for the Commission to vary the SCHADS Award under s 160 of the Act or, in the alternative, under s 157. Parkerville also seeks that the SCHADS Award be varied to make clear that the performance of work on shifts before and after (and that are each contiguous with the beginning or end of) a sleepover are separate shifts, with the sleepover constituting a break between the rostered periods of work. Parkerville initially advanced an alternative position being that the "24-hour care" provisions in clause 25.8 be varied to extend to Therapeutic Carers. At the commencement of the hearing of the applications, Parkerville indicated that it no longer pressed its alternative position and, as such, its position is "on all fours" with the Ai Group in terms of the relief sought. Parkerville also sought to clarify the coverage of the SCHADS Award in respect of persons providing therapeutic care. That aspect of the application was dealt with in an earlier decision of the Expert Panel.[1]

[6] The Joint Unions oppose the applications made by the Ai Group and Parkerville on jurisdictional and merits grounds. The Joint Unions also made their own application to vary the SCHADS Award on the basis that the Award does not provide a fair or relevant safety net for employees working sleepovers or shifts. The draft determination filed by the Joint Unions seeks, in items 1, 3 and 4, to replace clause 25.4 (Rest breaks between rostered work) and make certain consequential amendments to clauses 28.1(a) and 28.1(b)(ii). The primary impact of the variation sought by the Joint Unions is to provide a 200 per cent penalty rate in the event an employee does not receive the minimum break between periods of rostered work prescribed by clause 25.4. In item 2, the Joint Unions seek to replace clause 25.7 (Sleepovers) entirely and to alter the conditions which would apply to a sleepover in various ways, including by allowance payable with respect to a sleepover.

[7] The President of the Commission determined, in dealing with the various application by way of procedural directions, that items 1, 3 and 4 of the Joint Unions' draft determination be heard together with the Ai Group's application and Parkerville's application. Given the scope of the subject matter of item 2 of the Joint Unions' draft determination, the difference between that subject matter and that of the Ai Group and Parkerville's applications, the late filing of the Joint Unions' application and the consequential difficulty in programming all three applications together without compromising early hearing dates for the two earlier filed applications, the President did not consider it appropriate for the whole of the Joint Unions' application to be heard together with the Ai Group's and Parkerville's applications.[2]

[8] As a consequence of these directions, the matters to be considered in this application are: (1) the applications made by the Ai Group and Parkerville to vary the SCHADS Award so as to provide, or make clear, that a sleepover period can operate as a break between shifts and that ordinary hours can be worked on a shift immediately before and immediately after a sleepover; and (2) the Joint Unions' application to vary clause 25.4 and clauses 28.1(a) and 28.1(b)(ii) to achieve the contrary outcome and to incorporate a penalty rate of 200 per cent if an employee is required to resume or continue work without having the minimum break under clause 25.4. The remainder of the Joint Unions' application will be dealt with subsequently.

[9] Finalisation of the decision in this matter has been delayed by the publication of the decision of the Federal Court of Australia in Jats Joint Pty Ltd v Fair Work Ombudsman [2025] FCA 743; (2025) 342 IR 328 (Jats Joint). In that matter, Jats Joint sought review of a compliance notice issued by the Fair Work Ombudsman under s 717(1) of the Act. Jats Joint also sought declarations that a sleepover can constitute a break between rostered shifts pursuant to clause 25.4 of the SCHADS Award, that the SCHADS Award does not require a sleepover and the hours worked before and after a sleepover are one continuous "shift" and that a night shift penalty is not payable on a Monday morning after a Sunday sleepover.

[10] Although his Honour did not find it necessary to make the declarations sought in the application, Stellios J broadly accepted the construction of the SCHADS Award advanced by Jats Joint and made orders cancelling the compliance notice issued to Jats Joint under s 717(3) of the Act.[3] Following that decision, the Ai Group immediately sought an opportunity to file submissions as to the effect of the decision. Written submissions, and written submissions in reply, were subsequently filed by the Ai Group, Parkerville and the Joint Unions dealing with the implications of the decision for the present applications.

[11] The Ai Group application seeks variations that "would result in the 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." The variations sought by it are sought to have retrospective effect from 1 January 2010, pursuant to s 165(2) of the Act. The variations sought by the Ai Group are as follows:

1. Inserting a new subclause 25.4(c) in the following terms:

Notwithstanding the provisions of sub-clauses (a) and (b), the break between the end of a shift contiguous with the start of a sleepover and the commencement of a shift contiguous with the end of a sleepover, as provided for in subclause 25.7(f), will be eight hours.

2. Inserting a new subclause 25.4(d) in the following terms:

(i) the period of a sleepover rostered in accordance with clause 25.7 may constitute a break between shifts for the purposes of this clause; and

(ii) the provisions of subclauses (a)-(c), do not require a 10 hour break (or 8 hour break as the case may be) between periods of work, where one of those periods of work is performed pursuant to clause 25.7(e)

3. Amending subclause 25.7(e) so that it reads as follows:

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. For the avoidance of doubt, such work is not to be treated as overtime work for the purposes of clause 28.3.

4. Amending subclause 25.7(f) so that it reads as follows:

An employer may roster an employee to perform work immediately before and/or immediately after the sleepover period, which may be rostered as separate shifts of ordinary hours, but must roster the employee or pay the employee for at least four hours' work for at least one of these periods of work. The payment prescribed by 25.7(d) will be in addition to the minimum payment prescribed by this subclause.

5. Amending clause 29.4 so that it reads as follows:

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. For the avoidance of doubt, this clause does not preclude the rostering and working of separate shifts in accordance with clause 25.7(f).

[12] The grounds relied upon by the Ai Group are as follows:

1. Clause 25.7 of the Award provides for the performance of a 'sleepover', as defined by clause 25.7(a). Sleepover arrangements are commonly implemented by employers covered by the Award, including those who provide disability support services and undertake youth work.
2. Clause 25.7(f) of the Award contemplates the performance of work before 'and / or' after a sleepover.
3. The Award is ambiguous and / or uncertain as to whether an employee's ordinary hours of work can be arranged such that they include the performance of ordinary hours of work both immediately before a sleepover, and during a separate shift of ordinary hours immediately after that sleepover, without such an arrangement automatically resulting in the work before and after being regarded as one continuous shift. The Award is arguably capable of being read both ways (the Fair Work Ombudsman appears to currently read the Award differently to Ai Group). That ambiguity or uncertainty is exacerbated by clauses 25.4 and 29.4 of the Award.

1. The Award should be varied pursuant to s.160(1) to remove the ambiguity and / or uncertainty, and to make clear that:
   1. the two periods of work or shifts on either side of a sleepover may be organised by an employer such that they stand alone, as separate shifts, each constituting ordinary hours; and
   2. a sleepover is capable of constituting a break between shifts, including for the purposes of clause 25.4(b) of the Award.
2. It is appropriate that the variations be made, for the following reasons:

1. of the two competing interpretations, the preferable one is that each shift on either side of the sleepover is capable of constituting a separate shift, each consisting of ordinary hours; 2. the construction upon which the variation is sought is more consistent with a plain reading of the text and context of the Award and its provision for sleepover arrangements, in providing a facility for an employer to implement, and employees to work, sleepover rosters, with periods of work before and after. The proposed variation seeks to make that construction clear, by removing the ambiguity and uncertainty;

1. the ambiguity and uncertainty as to whether sleepover arrangements require an employer to treat contiguous periods of work before and after the sleepover as one continuous shift (attracting shift penalties when they ought not to arise) or as requiring the performance and payment of large stretches of overtime, will likely lead employers to cease implementing these arrangements; and

1. making the variation will therefore give clarity and certainty to employers that they can implement these arrangements without incurring a disproportionate shift penalty or requiring the routine performance of significant periods of overtime. Conversely, the variation will also give clarity and certainty to employees and other stakeholders as to the obligations and entitlements that arise from working such arrangements.

Variation necessary to achieve the modern awards objective

1. Alternatively, if the Commission finds that the Award is not relevantly ambiguous or uncertain, the variation proposed in paragraph 4 above should nonetheless be made pursuant to s.157(1)(a), on the basis that it is necessary to do so in order to achieve the modern awards objective.
2. The reasons for why those variations would be necessary are as follows:

1. they would result in a fair safety net from the perspective of employers and employees, noting that many employees wish to perform work as described above; 2. they would promote flexible modern work practices and the efficient and productive performance of work - specifically, they would enable an employee to provide care to a client before they go to bed and when they awake the following day;

1. they would have a positive impact on business, including on productivity and employment costs;

1. they would ensure that the Award is simple and easy to understand; and 2. critically, they would facilitate greater quality of care for clients.

[13] As has been observed, Parkerville amended its application at the commencement of the hearing so as to abandon its alternative application and the variations set out in its draft determination. As a result, Parkerville supported the application of the Ai Group to vary the SCHADS Award to 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.

[14] The variation in paragraph (a) of the Parkerville application is sought pursuant to s 160(1) of the Act or, in the alternative, s 157(1) of the Act. The variation in paragraph (b) is sought pursuant to s 160(1) of the Act with retrospective effect from 1 January 2010, pursuant to s 165(2) of the Act. In the alternative, that variation is sought pursuant to s 157(1) of the Act. Relevantly, the grounds relied upon by Parkerville are as follows:

1. Sleepover arrangements are set out at clause 25.7 of the Award
2. Clause 25.7(f) states:

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 for at least one of these periods of work. The payment prescribed by 25.7(d) will be in addition to the minimum payment prescribed by this subclause.

1. The Award is ambiguous and / or uncertain as to whether the sleepover constitutes a break between shifts, such that hours worked prior to and following a sleepover can each constitute the performance of ordinary hours.
2. The Australian Industry Group has made an application to this Commission to vary the Award pursuant to s 160(1) (or, in the alternative, s 157(1)) of the FW Act to make clear that:1 (a) the two periods of work or shifts on either side of a sleepover may be organised by an employer such that they stand alone, as separate shift, each constituting ordinary hours; and (b) a sleepover can constitute a break between shifts, including for the purposes of clause 25.4(b) of the Award.
3. Parkerville supports and adopts the grounds relied upon in the Australian Industry Group's application.
4. Further to the grounds in that application, the variations sought are appropriate having regard to:

1. the importance of Therapeutic Carers providing care to residents in a manner which best meets therapeutic goals, which necessarily requires that those employees perform sleepovers in out of home care settings; 2. the substantial and unsustainable overtime costs which (on the contrary construction of the sleepover provisions) would apply to employers providing Therapeutic Carer services to residents;

1. the risk that employers will cease implementing arrangements for children and youth in out of home residential settings which most appropriately address therapeutic goals on the basis that those arrangements are not economically viable; and

1. the Award's provisions which apply to home care employees performing comparable services (see "24 hour care" at clause 25.8(d) of the Award).

[15] The Joint Unions' application to vary the SCHADS award is made pursuant to s 157 of the Act. The application attached a draft determination which proposes the following variations be made to the SCHADS Award:

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

   • 25.4 Rest breaks between rostered work

1. 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.
2. 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).

1. 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:

1. A sleepover means when an employer requires an employee to sleepover 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.
2. 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:
   1. the employee is not provided with a separate and lockable room with a bed and clean linen; or
   2. 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.

1. The span for a sleepover will be a continuous period of 8 hours.
2. 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.
3. An employee will be entitled to the greater of the following payments for each night that they sleep over:
   1. A sleepover allowance of 15.25% of the Standard Rate; or
   2. 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.
4. 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.
5. 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.
6. 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).

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

5. This determination comes into operation on 1 July 2025.

[16] As we have observed, the Expert Panel is currently dealing only with items 1, 3 and 4 set out in the draft determination filed by the Joint Unions.

[17] One source of the "main terms and conditions of employment of an employee" provided under the Act are those set out in modern awards.[4] Section 134(1) of the Act sets out the "modern awards objective" in the following terms:

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(aa) the need to improve access to secure work across the economy; and

(ab) the need to achieve gender equality in the workplace by ensuring equal remuneration for work of equal or comparable value, eliminating gender-based undervaluation of work and providing workplace conditions that facilitate women's full economic participation; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; and

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

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

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

[18] Section 134(2)(a) provides that the "modern awards objective" applies to the performance or exercise of the Commission's functions and powers under Part 2-3 of the Act. It is also relevant to observe that s 138 provides:

A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.

[19] Division 5 of Part 2-3 deals with "exercising modern award powers". Section 157 sets out the general circumstances in which the Commission may vary, make or revoke a modern award. Section 157 provides:

157 FWC may vary etc. modern awards if necessary to achieve modern awards objective

(a) make a determination varying a modern award, otherwise than to vary modern award minimum wages or to vary a default fund term of the award; or

if the FWC is satisfied that making the determination or modern award is necessary to achieve the modern awards objective.

Note 1: Generally, the FWC must be constituted by a Full Bench to make, vary or revoke a modern award. However, the President may direct a single FWC Member to make a variation (see section 616).

Note 2: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).

Note 3: If the FWC is setting modern award minimum wages, the minimum wages objective also applies (see section 284).

Note 4: If the FWC is making, varying or revoking a modern award that the President considers might relate to the road transport industry, it must take into account the road transport objective (see section 40D).

(2) The FWC may make a determination varying modern award minimum wages if the FWC is satisfied that:

(a) the variation of modern award minimum wages is justified by work value reasons; and

(b) making the determination outside the system of annual wage reviews is necessary to achieve the modern awards objective.

Note: As the FWC is varying modern award minimum wages, the minimum wages objective also applies (see section 284).

(2A) Work value reasons are reasons justifying the amount that employees should be paid for doing a particular kind of work, being reasons related to any of the following:

(b) the level of skill or responsibility involved in doing the work;

(2B) The FWC's consideration of work value reasons must:

(b) include consideration of whether historically the work has been undervalued because of assumptions based on gender.

(3) The FWC may make a determination or modern award under this section:

[20] Section 157(1) makes clear that the Commission can only make a determination varying a modern award if satisfied that it is "necessary to achieve the modern awards objective".

[21] Item 1 of s 158(1) provides that an application to vary, omit or include terms (other than outworker terms or coverage terms) in a modern award may be made by an employer, employee or organisation that is covered by the modern award or an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award. There is no issue that the Ai Group, Parkerville and each of the Joint Unions are entitled to apply to the Commission to vary the SCHADS Award.

[22] Another circumstance in which the Commission may make a determination varying a modern award arises if it does so to remove an ambiguity or uncertainty or correct an error. In that respect, s 160 provides:

160 Variation of modern award to remove ambiguity or uncertainty or correct error

(1) The FWC may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.

(b) on application by an employer, employee, organisation or outworker entity that is covered by the modern award; or

(c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or

(d) if the modern award includes outworker terms - on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate.

[23] There is again no issue that the Ai Group, Parkerville and each of the Joint Unions are entitled to apply for the Commission to vary the SCHADS Award for the purposes of s 160(2)(b) or (c).

[24] Section 165 addresses when a determination varying a modern award comes into operation in the following terms:

165 When variation determinations come into operation, other than determinations setting, varying or revoking modern award minimum wages

Determinations come into operation on specified day

(1) A determination under this Part that varies a modern award (other than a determination that sets, varies or revokes modern award minimum wages) comes into operation on the day specified in the determination.

Note 1: For when a modern award, or a revocation of a modern award, comes into operation, see section 49.

Note: For when a determination under this Part setting, varying or revoking modern award minimum wages comes into operation, see section 166.

(2) The specified day must not be earlier than the day on which the determination is made, unless:

(a) the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and

(b) the FWC is satisfied that there are exceptional circumstances that justify specifying an earlier day.

Determinations take effect from first full pay period

(3) The determination 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 the day the determination comes into operation.

[25] Relevantly, s 165(2) makes clear that a determination varying a modern award can come into operation on a day earlier than the day the determination is made only if the determination is made under s 160 to remove an ambiguity or uncertainty or correct an error and there are "exceptional circumstances that justify specifying an earlier day".

[26] Clause 4.1 of the SCHADS Award provides that it is an industry award which covers employers throughout Australia in, relevantly, the "social and community services sector" and their employees in the classifications listed in Schedule B to Schedule F. The "social and community services sector" is defined broadly and incorporates a range of social and community services. The definition contained in clause 3.1 is as follows:

social and community services sector means the provision of social and community services including social work, recreation work, welfare work, youth work or community development work, including organisations which primarily engage in policy, advocacy or representation on behalf of organisations carrying out such work and the provision of disability services including the provision of social, community or disability services including the provision of personal care including therapeutic care and domestic and lifestyle support to a person with a disability in a community and/or residential setting including respite centre and day services.

[27] The classifications covered by the SCHADS Award are set out in Schedule B to Schedule F. Those schedules set out classifications, respectively, for Social and Community Services Employees, Crisis Accommodation Employees, Family Day Care Employees, Home Care Employees - Disability Care and Home Care Employees - Aged Care.

[28] Clause 25 is entitled "Ordinary hours of work and rostering". Clause 25.1(a) provides that the ordinary hours of work will be 38 hours per week or an average of 38 hours per week and will be worked in shifts not exceeding eight hours each. Clause 25.1(b) permits ordinary hours to be worked up to 10 hours per shift by agreement. Clause 25.2 provides that the ordinary hours of work for a day worker will be worked between 6am and 8pm Monday to Sunday and, otherwise, a shiftworker is an employee who works shifts in accordance with clause 29.

[29] The most relevant provisions for the purposes of the present applications are clauses 25.4 and 25.7. Clause 25.4 provides for rest breaks between rostered work in the following terms:

(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 the employer, the break between:

(i) the end of a shift and the commencement of a shift contiguous with the start of a sleepover; or

(ii) a shift commencing after the end of a shift contiguous with a sleepover

[30] As will be apparent, clause 25.4(b) reduces the minimum break period required between the end of a shift and the start of a shift contiguous with a sleepover or after the end of a shift contiguous with a sleepover.

[31] Clause 25.6 then provides for broken shifts in certain circumstances for social and community services employees when undertaking disability services work and for home care employees, including making provision for broken shift allowances.

[32] Clause 25.7 is entitled "Sleepovers" and provides:

(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 care shift pursuant to clause 25.8 or an excursion pursuant to clause 25.9.

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

(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.

(d) The employee will be entitled to a sleepover allowance of 4.9% of the standard rate for each night on which they sleep over.

(e) 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.

(f) 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 for at least one of these periods of work. The payment prescribed by 25.7(d) will be in addition to the minimum payment prescribed by this subclause.

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

[33] Relevantly, clause 25.7(a) defines a sleepover to mean a circumstance in which "an employer requires an employee to sleep overnight at premises where the client for whom the employee is responsible is located". An employee performing a sleepover will be entitled to an allowance of 4.9 per cent of their standard rate in accordance with clause 25.7(d) and to be paid at overtime rates if "required to perform work during the sleepover period" in accordance with clause 25.7(e). Clause 25.7(f) contemplates that an employer "may roster an employee to perform work immediately before and/or after the sleepover period" so long as the employee is paid at least four hours' work for one of those periods of work.

[34] Clause 25.8 is entitled "24 hour care" and applies only to home care employees. In summary, a "24 hour shift" is a shift which requires an employee to be available for duty in a client's home for a 24-hour period. An employee working a 24 hour shift will be afforded the opportunity to sleep for a continuous period of eight hours, will be paid eight hours' work at 155 per cent of their appropriate rate for each 24 hour period and will be paid at overtime rates if required to perform more than eight hours' work during a 24 hour care shift.

[35] Clause 25.9 provides for work supervising clients in excursion activities involving overnight stays in the following terms:

Where an employee agrees to supervise clients in excursion activities involving overnight stays from home, the following provisions will apply:

(i) Payment at the ordinary rate of pay for time worked between the hours of 8.00 am to 6.00 pm Monday to Friday up to a maximum of 10 hours per day.

(ii) The employer and employee may agree to accrual of time instead of overtime payment for all other hours.

(iii) Payment of sleepover allowance in accordance with the provision of clause 25.7 .

Where an employee involved in overnight excursion activities is required to work on a Saturday and/or Sunday, the days worked in the two week cycle, including that weekend, will not exceed 10 days.

[36] Clause 28 deals with overtime and penalty rates. With respect to full-time employees, clause 28.1(a) provides that:

• (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 25.5(a): ...

[37] Differing overtime rates are then provided for different groups of employees or in different circumstances in clause 28.1(a)(i)-(v).

[38] Clause 28.1(b) makes provision with respect to overtime for part-time and casual employees. Clause 28.1(b)(i) deals with weekly overtime. Clause 28.1(b)(ii) then deals with daily overtime as follows:

(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.

[39] Clause 29 prescribes terms and conditions that are specific to shiftwork, including allowances and penalty rates that apply depending on the type of shift worked. Clause 29.2 defines different types of shifts as follows:

(a) Afternoon shift means any shift which finishes after 8.00 pm and at or before 12 midnight Monday to Friday.

(b) Night shift means any shift which finishes after 12 midnight or commences before 6.00 am Monday to Friday.

(c) A public holiday shift means any time worked between midnight on the night prior to the public holiday and midnight of the public holiday.

[40] Clause 29.3 sets out the loadings which are to be paid to an employee who works an afternoon shift, night shift or public holiday shift. Clause 29.4 then provides:

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.

[41] On one view at least, clause 29.4 contemplates that a sleepover period will be part of one continuous block of hours which constitutes a "shift".

[42] The Ai Group describes its application as being designed to remove an ambiguity and/or uncertainty (or otherwise achieve the modern awards objective) by making it clear that a sleepover period constitutes a break for the purposes of the SCHADS Award, such that periods of work rostered immediately on either side of a sleepover do not automatically form part of the one shift and, rather, that they can be rostered as two separate shifts paid at ordinary time rates of pay.

[43] The Ai Group submits that there has been a practice in the disability sector and the youth residential care sector of workers being rostered to perform work immediately before and immediately after a sleepover, with the shifts on either side being treated as ordinary hours and separately. It submits that there are substantial therapeutic, care, operational, logistical and worker benefits to applying that practice in those sectors which are threatened by the interpretation of the SCHADS Award which required payment of overtime rates for work performed after a sleepover shift. In that respect, the Ai Group relies on evidence of the following witnesses:

• (a) Dean Keep, the Managing Director of All Care Australia Pty Ltd, which provides child protection services in Queensland, including residential care services;

• (b) Tammy Lloyd, the Group manager of Out of Home Care (North) for Anglicare Southern Queensland, a provider of children, youth and family services, including residential care services, in southern Queensland;

• (c) Shelley Wall, the Chief Executive Officer and a Director of Infinity Community Solutions Ltd, which provides child protection services, including residential care services, in Queensland and South Australia. Ms Wall is also the Chair and a Director of the National Therapeutic Residential Care Alliance, which has members with operations in all States and Territories;

• (d) Tamara Gabell, the Rostering Operations Manager at the Community Accommodation and Respite Agency Inc, a disability services provider operating in South Australia;

• (e) Brett Rankine, the Executive Manager of People and Culture at Community Living Options Inc, a provider of community support services, including disability and child services support, in South Australia; and

• (f) Michelle Black, an expert child therapist with extensive experience and qualifications, as well as the Managing Director and Founder of Elegrow Pty Ltd, which provides counselling and support to young people. Ms Black also provides organisational development consulting services to a child residential care provider named Family Centred Ltd.

[44] It will be necessary to return to the evidence given by those witnesses later in this decision. It is sufficient at this point to observe that the evidence given by a number of witnesses called by the Ai Group indicated that the organisations in which they work had rostered employees to perform work before and after a sleepover period without the payment of overtime and that, more recently, they had been informed by the Fair Work Ombudsman that this practice did not comply with the SCHADS Award. The advice received from the Fair Work Ombudsman resulted in some operators then changing the arrangement of work for their employees to avoid the obligation to pay overtime rates.

[45] For example, Mr Rankine gave evidence that Community Living Options Inc (CLO) provides disability support, home care support, supported independent living, community participation support, children services, behaviour support and community nursing services. Mr Rankine indicated that, although the exact timing of shifts varied somewhat, CLO rostered support workers to perform work before and after a sleepover such that the worker performed an "active shift" from 3pm to 11pm, sleepover from 11pm to 7am, an "active shift" from 7am to 10am and an "extension shift" from 10am to 3pm.[5] On 9 April 2021, CLO received information from the Fair Work Ombudsman through its online enquiry system in relation to sleepover arrangements. The publication produced by the Ombudsman, which is undated, contained the following information:[6]

Can employees work before and/or after a sleepover?

Employees must be rostered or paid for a minimum of 4 hours' work for one of the periods.

Yes. The sleepover and the hours worked before and/or after the sleepover are counted as one continuous shift.

Shift allowances will apply when a shift meets the definition of an afternoon, night or public holiday shift.

They're only paid for the hours the employee works before and/or after a sleepover.

No. A sleepover can't count as a break between rostered work periods.

Does a sleepover count as ordinary hours of work?

No. Only work before and/or after the sleepover counts as ordinary hours.

[46] Mr Rankine says that, on 17 May 2021, CLO received further advice from the Ombudsman to the effect that a sleepover could not be counted as a break for the purposes of the Community Living Options Inc Enterprise Agreement 2019.[7] The consequence of that view would be that time worked after the sleepover would be required to be paid at overtime rates. Mr Rankine says that CLO determined that it would not be viable to pay for work performed on the entirety of the extension shift at overtime rates, as this was a cost that could not be recovered under CLO's main funding arrangements.[8] CLO informed employees that it would change the rostering arrangements such that it would no longer offer "extension shifts" following a sleepover from 10am to 3pm except on Sundays (when there would be no additional cost), although it would continue to roster the active shift component after the sleepover.[9]

[47] By way of further example, Mr Keep is Managing Director of All Care Australia Pty Ltd (ACA). ACA provides licensed residential care services to children and young people from the age of three to 17. Mr Keep indicated that ACA previously had the practice of rostering its care workers to perform work immediately before and after a sleepover such that a worker would perform ordinary hours from 2pm to 10pm, a sleepover from 10pm to 6am and then ordinary hours from 6am to 2pm.[10] Mr Keep indicated that ACA had significantly reduced the instances in which care workers were required to work in this manner after January 2023.[11]

[48] In January 2023, ACA was contacted by the Ombudsman in relation to sleepover arrangements and, on 11 September 2023, was served with a compliance notice relating to work performed immediately before and after a sleepover.[12] A further compliance notice was issued on 17 January 2024.[13] Both compliance notices required ACA to rectify underpayments of overtime and night shift penalties alleged to arise from rostering care workers to perform work prior to and immediately after a sleepover period. On 12 February 2024, ACA commenced proceedings in the Federal Court seeking that the second compliance notice be cancelled or declared invalid. Dowling J subsequently ordered that those proceedings be stayed pending the hearing and determination of the Ai Group's application.[14]

[49] Dispute proceedings were also brought by the ASU against ACA concerning payments made to employees in connection with the rostering of shifts contiguous with sleepover periods in Matter Number C2023/2535. The dispute proceedings were dealt with by Commissioner Simpson who recorded that the ASU contended that shifts worked contiguous with a sleepover shift attract overtime rates and shift penalties. On 8 June 2023, the Commissioner issued a recommendation in relation to the dispute which, among other things, stated:[15]

[10] Clause 29.4 is clear and unambiguous in stating that 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. There is nothing in clause 25.6 of the Award that indicates the exception that applies in cases of broken shifts applies to the examples provided in this dispute. I agree with the ASU interpretation and recommend that the Respondent engage directly with the ASU to attempt to reach a settlement of any outstanding underpayments where it has not complied the Award requirement that in the case of the examples provided in this case, the shifts are to be treated as one continuous shift, and a sleepover, does not cause the shift to be broken.

[50] Ms Wall is employed by Infinity Community Solutions Ltd (Infinity). Infinity provides a range of child protection services, including residential care services. Infinity engages care workers through a labour hire agency known as Edmen Community Staffing Solutions Pty Ltd. Ms Wall indicates that care practitioners engaged through Edmen to work in residential facilities were generally rostered to perform two separate periods of work (totalling 16 hours) immediately before and after a sleepover.[16] However, Ms Wall says that Infinity no longer seeks to have care practitioners rostered to work both sides of a sleepover following the making of the Edmen Enterprise Agreement 2023 (which incorporates the SCHADS Award) because of the cost implications of doing so.[17]

[51] Ms Gabell was employed by the Community Accommodation and Respite Agency Inc (CARA). CARA provides disability services, including supported independent living in homes provided by Housing SA. Ms Gabell made a witness statement dated 11 June 2024. By the time of the hearing, Ms Gabell had left the employment, and her witness statement was not tendered. The Ai Group instead tendered a witness statement made by Sally Scragg who is Rostering Operations Manager for CARA. Ms Scragg adopted much of the contents of Ms Gabell's witness statement on the basis that her understanding aligned with the evidence of Ms Gabell. Ms Scragg says she understands that, prior to 2022, care workers were commonly rostered for a shift during the period from 3pm to 10pm, an 8 or 9 hour sleepover period and then another shift immediately following the sleepover until 3pm the following day.[18] From 2022, CARA changed its rostering practices such that care workers are still rostered before and after a sleepover period but only such that the total work period does not exceed 10 hours.[19] Ms Scragg was not able to give evidence as to the reasons for this change being made because she had no involvement in that decision.

[52] Ms Lloyd is employed by Anglicare Southern Queensland (Anglicare SQ). Among other services, Anglicare SQ provides residential care to children and young people at homes it operates and, as of May 2024, employed approximately 3,600 employees. The employees providing residential care to young people are known as youth workers. From 2017, Anglicare SQ operated a roster pattern for youth workers working in the residential home referred to as the "24-hour model" in which the worker would be rostered for nine hours before a sleepover and seven hours after the sleepover. For example, a worker may work 1.30pm to 10.30pm, perform a sleepover from 10.30pm to 6.30am and then work from 6.30am to 1.30pm.[20] Anglicare SQ paid youth workers the afternoon shift loading for the shift ending at 10.30pm, but treated the shift commencing at 6.30am as a separate day shift.[21]

[53] Anglicare SQ recently reviewed its sleepover arrangements. Ms Lloyd indicated that the catalyst for the review was an inquiry from a youth worker in around April 2023 concerning how the worker was paid for periods of work before and after a sleepover.[22] In July 2023, the youth worker provided screenshots of advice received from the Fair Work Ombudsman which stated that the work before and after a sleepover shift should be treated as one continuous shift. Interaction occurred between Anglicare SQ and the Ombudsman in August 2023 which ultimately resulted in no action being taken. Anglicare SQ nonetheless determined that there was a risk that its practices did not comply with the SCHADS Award.[23] From June 2024, Anglicare SQ implemented a "12-hour model" under which workers would be rostered 2.00pm to 10.30pm, perform a sleepover from 10.30pm to 6.30am followed by a shift from 6.30am to 10.00am.[24]

[54] Parkerville relies on evidence given by its Chief Executive Officer, Kim Brooklyn, and the Executive Manager of Parkerville, Johnny Rylatt. Parkerville is a not-for-profit association incorporated under the Associations Incorporation Act 1987 (WA). Since 1903, Parkerville has provided residential care for children and young people. These services are now provided to children who, due to abuse related trauma and/or neglect, are not able to remain in their family home. Parkerville currently provides services to the Department of Communities in Western Australia, including community foster care, group foster care and transitional care. Group foster care and transitional care is provided in homes operated by Parkerville. Parkerville operates four "moderate needs" group homes, four "high needs" group homes and three transitional care homes.[25]

[55] The group homes are staffed by therapeutic carers employed by Parkerville. The evidence indicates that "moderate needs" homes operated by Parkerville are each staffed by two Parkerville employees who work a seven days on, seven days off arrangement under which the therapeutic carer is responsible for the primary care of each child in the home for a seven day period and sleeps at the home each night. This is referred to as the Shared Care Model. The "high needs" homes are staffed under an arrangement in which therapeutic carers work one in every four days and each work 24 hours on those days. This is referred to as the Care Rotation Model.[26]

[56] In December 2020, Parkerville self-reported compliance issues with the SCHADS Award to the Fair Work Ombudsman. Ms Brooklyn indicates that Parkerville had previously understood that therapeutic carers were not covered by any modern award. Ms Brooklyn indicates that, from 1 July 2022, Parkerville has provided therapeutic carers rostered on the Shared Care Model a guarantee of annual earnings and has remunerated its employees working the Care Rotation Model in accordance with the SCHADS Award since that time. Ms Brooklyn indicates that Parkerville has voluntarily back paid therapeutic carers for a six year period with remuneration calculated in accordance with the SCHADS Award resulting in payments of approximately $9 million to current and former employees.[27]

[57] It is appropriate to commence by outlining the impact of the rival interpretations initially advanced by the parties. The key dispute between the parties is whether a sleepover period is to be regarded as a break between one shift or period of work and another shift or period of work for the purposes of clause 25.4.

[58] The Ai Group and Parkerville both submit that a sleepover period is a break for the purposes of clause 25.4 as the SCHADS Award is correctly construed and that periods of work on either side of a sleepover are treated as separate shifts for the purposes of the Award, including with respect to minimum shift lengths, rostering and calculating ordinary hours, overtime and shift penalties. The Ai Group submits that a number of features of the SCHADS Award support that conclusion, including submitting that:

• (a) clause 25.7 operates on its face, as a stand-alone, specific and complete regulation of sleepover arrangements under the Award, to the exclusion of other more general provisions;

• (b) because a sleepover does not, of itself, constitute work, it should not therefore, conceptually, be treated as joining two actual periods of work (before and after it);

• (c) clause 25.7(f) provides for work being rostered on either side of a sleepover, with the logical starting point therefore, subject to contrary stipulation, being that those two periods of rostered work would be separate shifts, unless such work was expressly rostered or arranged as part of a single shift (see for example, clause 29.4);

• (d) clauses 25.7(d) and (e) provide for payment of the sleepover allowance and for payment for actual work performed during a sleepover (at overtime rates), suggesting that the drafters of the Award turned their minds to the payment implications of a sleepover and included only those terms (i.e. and not overtime or shift allowance implications); and

• (e) clause 25.4(b)(ii) contemplates the period of a sleepover constituting a break between shifts.

[59] The Ai Group submits that the SCHADS Award makes no stipulation that the shifts on either side of a sleepover, and the sleepover itself, would necessarily and automatically be treated together as part of one shift, despite being broken by a lengthy period of non-work. It submits that, if the SCHADS Award had intended to make that provision it could have expressly done so clearly and unmistakably.

[60] The alternative view that was expressed by the Joint Unions is that a sleepover period is part of a shift such that periods of work immediately prior to and following a sleepover period are to be regarded as part of the same shift. In that regard, the Joint Unions relied on clause 29.4 to the extent that it requires that a shift must be worked in "one continuous block of hours" which may include meal breaks or sleepovers. The Joint Unions submit that clause 29.4 means that a sleepover does not break the continuous block of hours and must form part of the shift. As such, the Joint Unions submit a sleepover cannot constitute a break between shifts or periods of work for the purposes of clause 25.4 as a sleepover is part of a shift.

[61] Both parties seek variations to the SCHADS Award which would implement, in more express terms, their respective preferred constructions. Assuming it is found there is an ambiguity or uncertainty, the Ai Group and Parkerville contend that the Award should be varied to clearly provide that a sleepover period can constitute a break between shifts and that an employee can be rostered to work immediately before and/or after a sleepover period as separate shifts of ordinary hours. The Joint Unions seek that express provision be included in clause 25.4 to provide that the period of a sleepover in accordance with clause 25.7 does not constitute a break within the meaning of that clause.

[62] The consequences of the positions of the respective parties are as follows. If the position of the Ai Group and Parkerville is correct, an employee can be rostered to perform work on a shift both or either immediately before and immediately following a sleepover period without any additional payment or penalty accruing. Unless there is agreement for a shift of 10 hours under clause 25.1(b), the maximum shift length is eight hours in accordance with clause 25.1(a). As such, an employee could be rostered to work eight hours, remain at the work premises for an eight hour sleepover period in accordance with clause 25.7(c) and then work a further shift of eight hours. The employee would be required to be at the workplace for a period of at least 24 hours to complete this work, leaving aside any meal break periods.

[63] For example, the roster arrangement previously adopted by Anglicare SQ commonly involved a worker being rostered from 1.30pm to 10.30pm, performing a sleepover from 10.30pm to 6.30am and then working from 6.30am to 1.30pm.[28] Assuming those hours are worked Monday to Friday and the interpretation advanced by the Ai Group and Parkerville is correct, the employee would be paid at ordinary rates with the afternoon loading set out in clause 29.3(a) for the first shift from 1.30pm to 10.30pm, a sleepover allowance of 4.9 per cent of the standard rate for the sleepover period and eight hours at ordinary rates for the shift from 6.30am to 1.30pm the following day. The employee would be entitled to be paid at overtime rates for any work required to be performed during the sleepover period with a minimum payment of one hour in accordance with clause 25.7(e).

[64] If the position of the Joint Unions is correct or adopted, no party suggested that the working pattern we have just described could not be worked in an absolute sense. The difference would be that higher payments would be required to be paid to the employee and that some of the hours would be overtime rather than ordinary hours. If an employee was rostered to perform work for a period of eight hours prior to commencing a sleepover period, performed a sleepover period and then was rostered to perform another eight hour shift, the whole period would be treated as a single shift. The employee would be entitled to be paid at their ordinary rate with a night shift loading in accordance with clause 29.3(b) for the first eight hour shift (rather than the afternoon shift loading) and a sleepover allowance of 4.9 per cent of the standard rate for the sleepover period.

[65] On the approach proposed by the Joint Unions, at least the bulk of the second eight hour shift performed on the following day could only be performed as overtime and would be payable at overtime rates. Unless there is an agreement for ordinary hours to be worked up to 10 hours for a shift under clause 25.4(b), overtime would be payable from the commencement of the second eight hour shift for a full-time employee. Otherwise, overtime rates would be payable after two hours of that shift where such an agreement exists or for part-time or casual employees under clause 28.1(b)(ii). The overtime rate varies depending on the type of work performed and will be either time and a half for the first two hours or three hours and double time thereafter in accordance with clause 28.1(a) or clause 28.1(b)(i).

[66] The difference between the payments required to be made with respect to work in the type of pattern we have described when performed on the weekend is reduced. Clause 26.1 provides that ordinary hours worked on a Saturday are required to be paid at 150 per cent of the ordinary rate of pay and on a Sunday at 200 per cent of the ordinary rate of pay. Overtime on a Sunday is required to be paid at double time in accordance with clauses 28.1(a)(iii) and 28.1(b)(ii). Clauses 28.1(a)(v) and 28.2(b)(v) provide that overtime rates will be in substitution for, and not cumulative upon, shift premiums prescribed in clause 29 or Saturday and Sunday work premiums in clause 26. The consequence is that the payments for a Saturday shift will be double time rather than time and a half for some period of the second shift if worked on a Saturday, but the payments would be the same for work on a Sunday.

[67] It is convenient to summarise the practical difference between the positions of the Ai Group and Parkerville, on the one hand, and the Joint Unions, on the other, if an employee works an eight hour shift, undertakes a sleepover and then performs a further eight hour shift the following day. On the position of the Joint Unions, the consequences would be that:

• (a) Either eight or six hours of the second eight hour shift would be overtime rather than ordinary time.

• (b) Where that pattern was worked Monday to Friday, an employee would be entitled to the night shift loading of 15 percent rather than the afternoon shift loading of 12.5 per cent for the first eight hour shift.

• (c) An employee would be entitled to payment at overtime rates from the commencement of, or two hours after the commencement of, the second eight hour shift if it is performed between Monday and Friday.

• (d) If the second eight hour shift is on a Saturday, an employee would be entitled to double time rather than time and a half after between two and five hours of that shift.

• (e) If the second eight hour shift is on a Sunday, the same payment would be required to be made to the employee albeit some part of the work would be overtime rather than ordinary hours.

[68] As we have observed, the relevant provisions were subject of consideration in Jats Joint. It is unnecessary to set out the details of the reasoning of Stellios J in this decision. It is sufficient to record that the question which directly arose in Jats Joint concerned a compliance notice issued to the employer alleging a failure to pay night shift penalties under clause 29.3(b) with respect to periods of work which were contiguous with a sleepover period. Stellios J accepted the submission of Jats Joint that a sleepover period does not form part of a shift and that Jats Joint was not required to pay the relevant employee at the night shift rate under clause 29.3 for adjacent shifts on either or each side of the sleepover periods.[29]

[69] That finding was sufficient to resolve the challenge to the compliance notice issued to Jats Joint and means that the night shift loading is not payable for the first eight hour shift in the scenario we have described above. It is appropriate, in the present matter, that we approach the respective applications on the basis that the decision of Stellios J is correct. Whether the Commission is strictly bound by the interpretation of a modern award or other industrial instrument adopted by the Federal Court, it is to be expected that the Commission will follow any determination by the Court.[30] It is appropriate that we approach the present applications on the basis that, properly construed, a sleepover period is not part of a shift for the purposes of the SCHADS Award as it is presently drafted.

[70] However, his Honour did not resolve all the questions which arise in this matter. Of most relevance for present purposes, his Honour considered the submission advanced by Jats Joint that a sleepover constitutes a break from work within the meaning of clause 25.4. The Ombudsman submitted that a sleepover could not be regarded as a break between shifts for the purposes of clause 25.4. With respect to those submissions, his Honour considered Jats Joint's submission to be preferrable but found it unnecessary to express a final view on the question. His Honour said:[31]

While I have expressed a preference for Jats Joint's interpretation of cl 25.4, given the factual foundation of this case, it is not necessary for me to reach a concluded view because the Compliance Notice does not identify a contravention of that provision. It is enough to say that the FWO's interpretation of cl 25.4 is unlikely to assist its interpretation that a shift includes a sleepover for the purpose of cl 29.3(b).

[71] Even if his Honour's preference for Jats Joint's submission is respected, other questions remain. Even if a sleepover period is a break for the purposes of clause 25.4, a sleepover is defined in clause 25.7(c) to be a continuous period of eight hours and would not satisfy the requirement for a break of not less than 10 hours in clause 25.4(a). The parties did not make submissions as to whether the minimum break could be shortened under clause 25.4(b) in the type of scenario we have discussed, nor is there evidence of any separate agreement to shorten the break period for the purposes of clause 25.4(b) given by any witness. If a sleepover is a break, but not a sufficient break for the purposes of clause 25.4, an employee who continued work would, it appears, then be entitled to overtime.

[72] In any event, the function of the Commission in considering an application to vary a modern award, either under ss 157(1) or 160(1), is distinct from the task of interpretation. Where a modern award is interpreted by a court, either on its own initiative or on application, the Commission is entitled to consider whether the award should be varied to ensure it, together with the National Employment Standards, provides a fair and relevant minimum safety net of terms and conditions for the purposes of ss 134(1) having regard to the interpretation arrived at by the court. The distinct task of the Commission when considering whether to vary an award has been explained in the authorities. In Re Brack; Ex parte Operative Painters and Decorators Union of Australia (1984) 58 ALJR 125, for example, a Commissioner expressed the view that the interpretation of the relevant award by the Federal Court was inconsistent with the intention of the parties and the Commission in making the award provision and determined to vary the award to align with what he understood to be the intention of the provision. The High Court concluded that, in so doing, the Commissioner did not refuse to accept the interpretation adopted by the Court and said:[32]

We do not read this passage as indicating a refusal on the part of the Commissioner to accept the Federal Court's interpretation of cl. 10 and as a determination to depart from it. On the contrary, we read it as an acknowledgment that it was the role of the Federal Court, and not that of the Commission, authoritatively to interpret the Award. The Commissioner points out that it was his function to consider whether the Award should be varied in the light of the circumstances set out in the passage which we have quoted. These circumstances include the actual intention of the parties and that of Commissioner Vosti and the suitability of making fresh provision, in lieu of the old provision, concerning payment of the industry allowance, more particularly in light of the practice of the respondent in paying the industry allowance to employees employed under the Award. In taking these circumstances into account, and regarding them as a basis for varying the Award, the Commissioner did not fail to observe s. 110(3). What he did was to accept the Federal Court's interpretation and determine that the operation of the Award provision, so interpreted, was unsatisfactory, having regard to the circumstances already mentioned.

[73] The applications made by the Ai Group, Parkerville and the Joint Unions invite the Commission to consider whether, leaving aside its correct interpretation, the SCHADS Award should be varied either to remove an ambiguity or uncertainty or because it is necessary to achieve the modern awards objective.

[74] The primary basis upon which the Ai Group and Parkerville ask the Commission to vary the SCHADS Award is that it contains an ambiguity or uncertainty. As has been recorded above, s 160(1) of the Act provides that the Commission "may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error". The approach to be adopted in the case of an application for the Commission to vary a modern award to remove an ambiguity or uncertainty has been considered in many cases. For example, in Re Variation on the Commission's own motion - Modern award superannuation clause review [2023] FWCFB 264, the Full Bench said:[33]

The principles applicable to the interpretation and application of s 160 are well established. It is first necessary to determine if the award provisions under consideration are ambiguous, uncertain or attended by error. To find ambiguity in respect of an award provision, there must usually be rival contentions as to the proper meaning of the provision which are reasonably arguable. The words "ambiguous" and "uncertain" are not synonyms, and uncertainty may be established even if the provision at issue has a clear meaning and is not ambiguous, since uncertainty may arise from the application of unambiguous terms to a given set of circumstances or if the provision is doubtful, vague or indistinct in its expression. Error will be demonstrated if some sort of mistake is shown, in that a provision of the award was made in a form which did not reflect the tribunal's intention. It is only if ambiguity, uncertainty or error is found that a variation to remedy this may be considered.

[75] Neither the Ai Group nor Parkerville separately contended that the SCHADS Award contained an error. Both rely on the contention that the relevant provisions give rise to an ambiguity or uncertainty. In those circumstances, in order for the power to vary the SCHADS Award under s 160(1) of the Act to be enlivened, it is necessary to first determine if the award provisions under consideration are ambiguous or uncertain. In Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50; (2020) 275 FCR 385, the Full Court considered the power of the Commission under s 217(1) of the Act to vary an enterprise agreement to remove an ambiguity or uncertainty. The observations of the Full Court are instructive when considering the power in s 160(1) to remove an ambiguity or uncertainty in a modern award and may be summarised as follows:[34]

• (a) The question of whether a document is ambiguous or uncertain involves an exercise which is distinct from the task of identifying the true meaning of a provision through a process of interpretation.

• (b) An ambiguity exists where a provision is capable of more than one meaning. The ambiguity may be apparent on the face of the document or may become apparent only when extrinsic evidence is adduced.

• (c) In assessing whether an instrument is ambiguous or uncertain, the Commission is not constrained to consider only matters to which it may have regard when interpreting an award or enterprise agreement and may have regard to the common intentions of the parties or other matters which are part of "equity, good conscience and the merits" of the matter.

• (d) The mere existence of rival contentions as to the meaning or application of a provision may not be sufficient to indicate ambiguity or uncertainty and the Commission must consider the matter objectively. However, the Commission will generally err on the side of finding ambiguity or uncertainty where there are rival contentions advanced and an arguable case is made out for more than one contention.

• (e) Although there is some relationship between the meaning of the words "ambiguity" and "uncertainty", the two terms are not synonymous. There may be uncertainty in a document even when its terms are not ambiguous, for example, arising from the application of unambiguous terms to a given set of circumstances.

• (f) It is necessary for the Commission to separately consider whether the instrument is ambiguous and whether it is uncertain. At least if a contention is advanced that the relevant provision or provisions are uncertain, the Commission will err if it fails to separately consider ambiguity and uncertainty.

[76] The Joint Unions initially contended that there is no relevant ambiguity or uncertainty and, as such, that the Commission did not have jurisdiction to vary the SCHADS Award under s 160(1). Following the judgment in Jats Joint, the Joint Unions changed their position and now accept that the provisions of the SCHADS Award dealing with sleepovers are ambiguous in the sense that there are rival contentions as to the proper meaning of the provisions which are reasonably arguable.

[77] The Joint Unions are correct to make that concession. We are satisfied that the relevant provisions of the SCHADS Award dealing with sleepovers, breaks between shifts in the context of a sleepover period and the payments required to be made where work is performed before and after a sleepover period are both ambiguous and uncertain. In circumstances in which all parties now accept that is the situation, it is unnecessary to set out the reasons for that conclusion in great detail. It is sufficient to record that:

• (a) Clause 25.4(a) requires that an employee be allowed a break of not less than 10 hours between the end of one shift or "period of work" and the start another. Clause 25.4(b) makes specific provision with respect to breaks after or before a "shift contiguous with a sleepover". Neither clause makes clear whether a "shift" and "period of work" are the same or different concepts or whether a sleepover period is part of either a shift or period of work.

• (b) Clause 25.7 makes detailed provision with respect to sleepovers, including providing in clause 25.7(f) that, subject to certain constraints, an employer may roster an employee to perform work immediately before and/or immediately after a sleepover period without indicating whether the sleepover period will constitute a break from work or whether the period of work either side of a sleepover is a different shift or part of the same shift.

• (c) Clause 29.4 requires that shifts are to be worked in one continuous block which may include a meal break and sleepover. On one view, the clause can be read as intending that a sleepover is part of a shift. On the other hand, it is possible to read the provision as intended to do no more than make clear that interruption by a meal break or sleepover does not cause a shift not to have been worked other than in one continuous block.

• (d) Clause 25.1 and 25.2 provides that ordinary hours are "to be worked" which suggests that a sleepover period, which is not paid as work under clause 25.7(d) and is contrasted with a requirement to perform work in clause 25.7(e), is not part of ordinary hours. However, it is also unclear if a sleepover, during which an employee is required to be at the work premises and may be called upon to perform work, is truly a "rest" break for the purposes of clause 25.4.

[78] It will be apparent from this brief analysis that we are comfortably satisfied that the relevant provisions of the SCHADS Award are ambiguous in addressing the status of a sleepover period and whether a sleepover period constitutes or does not constitute a break between shifts or periods of work. Similarly, an uncertainty arises as to how the provisions should be applied in practice, including how the provision for overtime payments in clause 28.1 should be applied in circumstances in which an employee performs work immediately before and immediately after a sleepover period.

[79] Many of the relevant provisions have now been subject to consideration by the Federal Court in Jats Joint. It might be thought that, once relevant provisions of a modern award have been construed by a court, their meaning is then clear and no ambiguity or uncertainty can be said to arise. However, that is not necessarily the case. A provision may be ambiguous even though it is capable of interpretation.[35] Courts and tribunals very commonly face the task of construing provisions of statutes or industrial instruments that are ambiguous. The fact that the process of interpretation can arrive at a conclusion as to the preferred meaning to be attributed to a provision of a modern award does not mean it is not ambiguous or uncertain for the purposes of s 160(1) of the Act.

[80] As we have recorded, Stellios J found that a sleepover period is not part of a shift but did not express a final conclusion in relation to whether a sleepover is a break from work for the purposes of clause 25.4. In any event, his Honour expressly recorded his view that the position "is not free from doubt, and should be clarified by amendment to the SCHADS Award when the opportunity arises".[36] Plainly, his Honour regarded the provisions to be ambiguous and, although compelled to reach a conclusion as to the preferred interpretation, favoured the position being clarified. With respect, we agree that the relevant provisions we have set out are ambiguous and their operation is uncertain. No party submits that the operation of the provisions should not be clarified.

[81] As we have recorded, the applications presently before the Commission rely on either or both of ss 157(1) and 160(1). It is necessary to reflect briefly on the approach to be adopted with respect to each basis identified for the applications by the parties.

[82] The power of the Commission to vary a modern award under s 160(1) is "to remove an ambiguity or uncertainty or to correct an error". The power to vary a modern award in those circumstances is of a purposive nature. That is, although the Commission has a discretion as to the terms of the variation to be made, the variation determined is to have the purpose and effect of removing the identified ambiguity or uncertainty or correcting the identified error.[37] In this respect, it is relevant to observe that the power to vary an enterprise agreement under s 217(1) of the Act has been found to be for the limited purposes specified by the section, namely, "to remove an ambiguity or uncertainty".[38] The same can be said in relation to s 160(1).

[83] The modern awards objective is relevant to the exercise of the power to vary a modern award under s 160(1) as it applies to the exercise of all of the Commission's powers under Part 2-3. Section 134(2)(a) provides that the modern awards objective "applies to the performance or exercise of the Commission's function and powers under Part 2-3". That includes the powers to vary a modern award under s 160(1) to remove an ambiguity or uncertainty or to correct an error. If the Commission finds that a modern award contains an ambiguity, uncertainty or error, the modern awards objective should guide the task of determining the variation to be made to address the situation. In case of an application under s 160(1), there is no express requirement that the Commission must be satisfied that the variation is "necessary to achieve" the modern awards objective as is the case for a variation under s 157(1) of the Act.[39] However, s 138 nonetheless requires that a modern award may include terms that it is permitted to include, and must include terms that it is required to include, "only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective".

[84] The Ai Group, supported by Parkerville, submits that, if the Commission is satisfied that the SCHADS Award contains an ambiguity or uncertainty for the purposes of s 160(1), it should vary the award so as to give effect to the intention of the original drafters. As we will consider below, the Ai Group contends that the interactions between relevant industrial parties and the deliberations of the then Australian Industrial Relations Commission reveal the actual intention of the drafters of the SCHADS Award when it was originally made. The Ai Group contends that the Commission should give effect to the actual intentions of the drafters. At times, the Ai Group's submissions appeared to go so far as to suggest that the Commission must give effect to the intentions of the original drafters when varying a modern award to remove an ambiguity or uncertainty. It was submitted, for example, that the power to vary a modern award under s 160(1) is "effectively a statutory analogue of common law rectification" and that the task of the Commission is to identify if there is an ambiguity or an uncertainty in a document such that it does not reflect the intention of the drafters, and to then rectify the document so that it does reflect the intention.

[85] We do not accept that the task of the Commission is as limited as suggested by the Ai Group. The Ai Group referred to the decision of Saunders DP in Toll Transport Pty Ltd T/A Toll Transport [2022] FWC 3346 in which the Deputy President said:

[14] If ambiguity or uncertainty is found in an award, the Commission may have regard to a range of factors in determining whether to exercise its discretion to vary the award in order to remove the ambiguity or uncertainty. There is no need for the Commission to feel constrained in the matters to which it may have regard in the exercise of its discretionary power under s 160 of the Act by the principles developed for the interpretation of awards. For example, the Commission may have regard to "industrial principles and general industrial merit considerations". Other relevant matters may include the actual intention of the maker of the instrument (or of the interested parties) and the history of the provision as part of the "equity, good conscience and the merits" of the matter. This may be contrasted with the process of construing an award where the actual subjective intent of the makers of the instrument is irrelevant. That is because the process of interpretation is directed to the proper construction of what the instrument says, not what it was meant to say.

[86] We do not disagree with this summary of the proper approach. We do not understand the Deputy President to have suggested that the task of the Commission in varying a modern award to remove an ambiguity or uncertainty is limited to considering and giving effect to the actual intentions of the drafters. The Deputy President said only that, unlike when it is engaged in the task of construing a modern award, the Commission may have regard to the actual intentions of the drafters.

[87] We accept that, when varying a modern award under s 160(1), it may be relevant to consider the intention of the Commission when it initially made the relevant modern award provision and that, in contrast to the approach adopted when interpreting an award, subjective intention may be relevant and may be persuasive. However, even where it is possible to discern the actual intention of the Commission when it made an award provision, there may be a range of reasons why a modern award may not be varied simply to align with the original intent. A long period may have passed since the award was first made. Circumstances in the relevant occupation or industry may have changed. Industrial parties might have conducted themselves on a different basis for a long period. The evidence before the Commission may be very different to that which was available when the modern award was first made. When varying a modern award under s 160(1), the Commission is required to include such provision as it considers appropriate for the purpose of removing the ambiguity or uncertainty and is not necessarily constrained to give effect to what it believes was the intent when the award was first made. In that respect, the dictate in s 138 that a modern award may include terms in a modern award "only to the extent necessary to achieve the modern awards objective" is relevant and must be adhered to in any term the Commission includes in an award.

[88] The Ai Group and Parkerville, in the alternative, apply to vary the SCHADS Award under s 157(1). The Joint Unions' application relies entirely on s 157(1). Section 157(1)(a) provides that the Commission may make a determination varying a modern award if satisfied that the determination is "necessary to achieve the modern awards objective". As is well known, the modern awards objective is set out in s 134(1) and requires that the Commission "must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant safety net of terms and conditions" taking into account the considerations identified in s 134(1)(a) to (h). As we have observed, s 138 also emphasises that a modern award may include terms only to the extent necessary to achieve the modern awards objective and (to the extent it is applicable) the minimum wages objective.

[89] The principles to be applied when the Commission is considering varying a modern award are reasonably well settled and include the following:

(a) The modern awards objective is a composite expression which requires that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions.[40] The terms "fair and relevant" are adjectives descriptive of the qualities of the minimum safety net of terms and conditions to which the Commission's duty relates.[41]

(b) In ensuring that modern awards provide a fair and relevant safety net, the Commission is to take into account the matters listed in s 134(1)(a) to (h). The obligation to take into account the s 134 considerations means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process.[42] The s 134 considerations inform the evaluation of what constitutes a "fair and relevant safety net of terms and conditions", but do not necessarily exhaust the matters which the Commission might properly consider relevant to that standard.[43]

(c) It is not necessary for the Commission to make a finding that the relevant modern award fails to satisfy one or more of the s 134 considerations as a prerequisite to the variation of the modern award.[44] The s 134 considerations are not standards against which a modern award is to be evaluated but matters to be taken into account as part of the evaluative assessment of the qualities of the safety net.[45]

(d) Whilst it has been said that the Commission will proceed on the basis that prima facie a modern award achieved the modern awards objective when it was made,[46] the objective of stability does not take priority over the ultimate task of ensuring that modern awards provide a fair and relevant safety net. The discretion of the Commission is not constrained by any requirement to demonstrate material change of circumstance as a precondition to a modern award being varied.[47]

(e) There is a distinction between what is "necessary" and what is "desirable" which does not carry the same imperative for action. However, obviously enough, reasonable minds may differ as to whether particular action is necessary or merely desirable.[48] What is "necessary" to achieve the modern awards objective requires a value judgment by the Commission taking in account the s 134 considerations.[49]

[90] The submissions of the Ai Group emphasised, in relation to the Joint Unions' application, that it was for the Joint Unions to demonstrate that the variation sought by them under s 157(1) is necessary to achieve the modern awards objective. The Joint Unions put forward evidence from 18 employee witnesses who perform work covered by the SCHADS Award which included performing sleepovers in a social or community services organisation. The Ai Group contends that this represents only a very small proportion of the total number of employees who are covered by the SCHADS Award. The Ai Group suggested that this evidence, in numerical terms, was insufficient for the Joint Unions to prove the propositions they make.

[91] The approach advanced by the Ai Group suggests an approach to fact finding in the context of modern award proceedings which has an air of unreality about it and fails to understand the nature of the role of the Commission in dealing with modern awards. In performing its functions and exercising its powers, s 577(b) requires that the Commission conduct itself in a manner that is (among other things) "quick, informal and avoids unnecessary technicalities". The Commission is entitled to inform itself in such manner as it considers appropriate under s 590(1) and s 591 provides that the Commission is not bound by the rules of evidence and procedure.

[92] The Commission is a specialist tribunal, the members of which are expected to have experience in relevant industries and occupations. Section 617(8) now specifically provides that a determination or modern award that the President considers might relate to the Care and Community Sector must be made by an Expert Panel constituted for the purposes of deciding whether to make the determination or modern award. Section 620(1C) requires that an Expert Panel must include a presidential member who is the Chair of the Panel and at least two Expert Panel Members or other members of the Commission who have knowledge of, or experience in, the Care and Community Sector.

[93] Members of the Commission are entitled to draw on their expertise in assessing whether they are satisfied that the broad, often value-laden criteria prescribed in the Act are made out.[50] Members of the Commission are able to draw inferences from such evidence and submissions as are before it in relation to the operation and terms of modern awards in part based on their experience and accumulated knowledge. With respect to the consideration to be given to the elements of the modern awards objective, for example, the Full Court said in Construction, Forestry, Maritime, Mining and Energy Union v Anglo American Australia Ltd [2019] FCAFC 109; (2019) 271 FCR 22:[51]

The notion that the FWC may rely on submissions, even if they are not founded on evidence in a strict sense, is consistent not only with the notion that an administrative decision-maker to whom the determination of facts has been assigned is within jurisdiction to decide the facts rightly or wrongly, but more importantly with the judicial recognition given to the expertise of the FWC, especially in circumstances of cases, like this, where the legislature has expressly left to the FWC the task of ensuring that modern awards provide a fair and relevant minimum safety net of terms and conditions. See Shop, Distributive and Allied Employees Association v Australian Industry Group at [111]. The Commission is a specialist tribunal. The task of making assessments and reaching the requisite state of satisfaction about whether the variations would or would not, among many other things, likely encourage collective bargaining, is entrusted to it (not to the courts), and, in doing so, it may inform itself in such a matter that is appropriate, without being bound by the rules of evidence or procedure (s 591), and without the need to give reasons (s 601(2)).

[94] In that passage, the Full Court referred to earlier observations of a five member Full Court in Shop, Distributive and Allied Employees Association v Australian Industry Group [2017] FCAFC 161; (2019) 253 FCR 368 recognising the role of the expertise of the Commission in the task of ensuring that modern awards meet the modern awards objective. The Full Court said:[52]

In the context of the present decision-making statutory regime, judicial recognition can be given to the expertise of the FWC, especially in circumstances where the legislature has expressly left to the FWC the task (for example) of "ensur[ing] that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions" (s 134(1)). The task of ensuring that modern awards comply with the standards set by s 134(1) and the task of making a judgment as to what is "fair and relevant" is not entrusted by the legislature to this Court.

[95] Modern awards necessarily cover a very large number of employees and employers across the country involved in the relevant industry or occupation to which the award applies. The Ai Group referred to evidence that the SCHADS Award covers over 248,000 employees.[53] The Commission may need to find facts when considering if it is satisfied that making a determination or modern award is necessary to achieve the modern awards objective. What is necessary to satisfy the Commission that facts relevant to that assessment exist, and the degree of persuasion the Commission requires, will very much depend on the circumstances of the case and the facts in contest. The Commission's assessment is likely to be influenced by the nature of the facts in issue, the positions adopted by experienced industrial parties, whether the facts are or could be seriously contested, matters of common sense and inference and other decisions of the Commission or industrial tribunals dealing with the same or similar questions.

[96] In 4 Yearly Review of Modern Awards - Penalty Rates [2017] FWCFB 1001; (2017) 265 IR 1, the Full Bench observed in relation to the fact-finding task that:[54]

Variations to modern awards must be justified on their merits. The extent of the merit argument required will depend on the circumstances. Some proposed changes are obvious as a matter of industrial merit and in such circumstances it is unnecessary to advance probative evidence in support of the proposed variation. Significant changes where merit is reasonably contestable should be supported by an analysis of the relevant legislative provisions and, where feasible, probative evidence.

[97] The task of the Commission under s 157(1)(a) is ultimately to determine whether it is satisfied that making a determination to vary a modern award is necessary to achieve the modern awards objective. It is unlikely to be helpful to simply assert that evidence has been called with respect to a minority of employees or employees covered by the award. It would not be feasible to expect that a significant proportion of the employees or employers covered by a modern award could directly give, or be the subject of, evidence.

[98] The Ai Group, supported by Parkerville, made detailed submissions in relation to the development of the SCHADS Award in an attempt to divine the intention of the Commission when the Award was first made. The SCHADS Award was made by a Full Bench of the Australian Industrial Relations Commission as part of the award modernisation process conducted under what was then Part 10A of the Workplace Relations Act 1996 (Cth). As part of that process, the Commission produced an exposure draft of the proposed Award on 25 September 2009.[55] The Ai Group emphasised certain provisions of the exposure draft. Clause 24.7 of the exposure draft dealt with sleepovers. Clause 24.7(a) provided:

(a) Employees may, in addition to normal rostered shifts, be required to sleep over. A sleepover means sleeping in at night in order to be on call for emergencies.

[99] Clause 24.7(b)(vii) of the exposure draft then provided for the manner in which time worked during a sleepover period is to be paid. The final dot point in clause 24.7(b)(vii) of the exposure draft provided:

(vii) all time worked during any sleepover will count as time worked and be paid for in accordance with the following provisions:

• provided further that where the employee does not have eight consecutive hours off duty between ordinary rostered duty on successive days, then the provisions of clause 24.7(b)(x) will apply, ...

[100] Clause 24.7(b)(x) of the exposure draft provided:

(x) an employee (whether a full-time employee, part-time employee or casual employee) who performs so much work during sleepover periods between the termination of their ordinary work on any day or shift and the commencement of their ordinary work on the next day or shift that they have not had at least eight consecutive hours off duty between these times will, subject to this clause, be released after completion of such work until they have had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence. If, on the instruction of the employer, such an employee resumes or continues to work without having eight consecutive hours off duty, the employee will be paid at double the appropriate rate until they are released from duty for eight consecutive hours and be entitled to be absent until they have had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence; and ...

[101] The consequence of those provisions of the exposure draft would have been that, if an employee was required to perform work during a sleepover such that they do not have eight hours off duty, then the employee is entitled to be released until they have had eight consecutive hours off duty without loss of pay. If the employee is not released from duty such that they have eight consecutive hours off duty, the employee is to be paid at double the appropriate rate until released.

[102] Clause 24.7(b)(viii) of the exposure draft then provided that:

(viii) a sleepover may be rostered to commence immediately at the conclusion of the employee's shift and continuous with that shift; and/or immediately prior to the employee's shift and continuous with that shift, and not otherwise; ...

[103] A public consultation process was then conducted in relation to the exposure draft in October and November 2009. On the material now before the Commission, it appears that no interested parties made submissions in relation to the sleepover provisions other than the Australian Federation of Employers & Industries (the AFEI). The AFEI's submission dated 5 November 2009 contended that clause 24.7 of the exposure draft should be amended, among other things, such that clause 24.7 would make clear that, when calculating the appropriate shift penalty, the hours worked prior to a sleepover were required to be treated separately to the hours after the sleepover. Otherwise, the submissions from interested parties did not touch upon the question.

[104] The Full Bench published the final version of the SCHADS Award on 4 December 2009 together with the statement published in Re Award Modernisation Statement [2009] AIRCFB 945; (2009) 190 IR 370. The Award as initially made was, in relevant respects, substantially the same as it now is subject to one matter to which we will refer shortly. With respect to the SCHADS Award, the Full Bench explained that "[w]e have decided to make a modern award based on the terms of the exposure draft but with a number of alterations some of which we deal with below" and then purported to mention only "some of the significant changes from the terms of the exposure draft".[56] No mention was made of changes with respect to the provisions made dealing with sleepovers even though the wording was changed in a reasonably substantial manner.

[105] The SCHADS Award was subsequently varied in 2012 as part of the modern award review conducted at that time. When it was initially made, clause 25.7(f) provided that:

(f) An employee on sleepover will be provided with, or paid for, at least four hours' work for each instance where the employee is required. Such work will be performed immediately before or immediately after the sleepover period. The payment prescribed by 25.7(d) will be in addition to the minimum payment prescribed by this subclause."

[106] It appears that, after a series of conferences, Senior Deputy President Kaufman varied the Award on 21 November 2012 without contested proceedings. Clause 25.7(f) was varied to expressly permit an employer to roster an employee "to perform work immediately before and/or immediately after the sleepover period" and inserted clause 25.4(b) so as to permit the break period between shifts to be reduced by ten hours to eight hours by mutual agreement in the circumstances described in the subclause.[57] No reasons were provided for the variations.

[107] The Ai Group contends that the provisions of the exposure draft clearly indicated that a sleepover was not part of a normal rostered shift and that work performed either side of a sleepover period would constitute a separate shift. The Ai Group submits that it should be inferred that the Full Bench was satisfied that a provision which permitted ordinary hours to be performed on either side of a sleepover period was necessary to achieve the modern awards objective because it would otherwise not have included the provision in the exposure draft. The Ai Group asks us to infer that the change of wording in the final version of the SCHADS Award was not intended to have a different meaning given that the Full Bench decision did not refer to the changes made to the sleepover provisions.

[108] We do not accept that it is possible to discern the intention of the Full Bench that originally made the SCHADS Award in relation to the status of a sleepover period with any certainty. Fundamentally, we do not accept that it is sufficiently clear that the terms of the exposure draft meant that an employee could be rostered to perform ordinary hours either side of a sleepover period without additional payment. In the absence of any reasons being given by the Full Bench, we are not willing to infer that this was the intent of the Full Bench or that the Full Bench had the same intent when it made the final version of the SCHADS Award.

[109] The provisions of the exposure draft are no clearer than the current provisions. Clause 24.7(a) of the exposure draft might be read as distinguishing between a sleepover period and a rostered shift. However, the clause does not make plain whether work either side of a sleepover period would constitute part of a single shift, only that the sleepover period was "in addition to normal rostered shifts". It appears that AFEI at least was uncertain as to what was intended by this provision. The payment arrangements to apply if work was performed during a sleepover period in clause 24.7(b)(x) of the exposure draft would be practically difficult to apply if ordinary hours were customarily rostered immediately following a sleepover period. The provision would mean that an employee would have to be released from at least part of the following shift if any work was performed during the sleepover or paid at double time. It is not clear that clause 24.7(b)(viii) permits a sleepover to be rostered between shifts rather than only immediately before or immediately after a rostered shift. That uncertainty is compounded given the terms of clause 25.7(f) when the SCHADS Award was first made which did not permit ordinary hours to be rostered both before and after a sleepover period.[58]

[110] Furthermore, the terms of the SCHADS Award when it was made at the conclusion of the award modernisation process departed from the exposure draft in relevant respects. In the absence of any explanation, we are not willing to infer that no change of meaning was intended by the Full Bench. In the circumstances, we are unable to discern with sufficient clarity whether the Full Bench which initially made the SCHADS Award intended that a sleepover period was or was not part of a shift or whether a sleepover can constitute a break from work. The consequence is that, in the task of varying the award to remove the ambiguity or uncertainty we have found to exist, we are unassisted by being able to discern the actual intent of the drafters of the provisions as first made.

Considerations relevant to the modern awards objective

[111] Although we are satisfied that the SCHADS Award contains an ambiguity or uncertainty and can be varied under s 160(1), it is necessary in this case to consider whether the variations are respectively necessary to achieve the modern awards objective having regard to the matters in s 134(1). That is so because of the requirements of s 138 and because the Joint Union's application is brought on the basis of s 157(1). The submissions of the parties with respect to the merits of the variations respectively sought by the Ai Group and Parkerville and the Joint Unions raise a number of factual questions.

[112] However, although there was a significant amount of evidence filed by the parties, the degree of factual disagreement is perhaps narrower than might initially appear. The major factual questions raised by the parties concern the desirability of the SCHADS Award facilitating rostering arrangements which allow continuity and predictability of care and the degree to which employees performing sleepovers experience interrupted sleep and consequent fatigue and suffer disruption to their family, personal and social lives.

[113] The Ai Group and Parkerville raise a range of considerations that they submit support a conclusion that it is necessary to vary the SCHADS Award as they seek in order to achieve the modern awards objective. It will be necessary to consider those matters specially below. The primary factual issue raised by the Ai Group and Parkerville in support of those contentions concerns the desirability of operational arrangements which facilitate continuity of care provided to children and young persons in residential care. It is convenient to consider the evidence in relation to that matter at the outset.

[114] The Ai Group relies on the evidence of a range of witnesses concerning the benefits it submits arise from permitting employees to perform work in accordance with a 24 hour working arrangement under which one care employee performs work over a 24 hour period including a sleepover. For example, Mr Keep gave evidence in relation to the operations of ACA. He indicates that the children to whom care is provided in residential homes operated by ACA have all experienced neglect, trauma and/or abuse. Mr Keep says that ACA strives to ensure that a child is able to form strong, deep, meaningful and trusting relationships with care workers in a manner that imitates a consistent, caring and stable environment.[59]

[115] Mr Keep's evidence is that ACA endeavours to pursue those objectives in a number of ways, including through an initial induction process, by avoiding moving care workers and children between care homes where possible, by establishing a core team of care workers at each residential care home to reduce the number of care workers that engage with the children living at the home and by rostering care workers to perform work immediately before and immediately after a sleepover. Mr Keep says that the period immediately before and immediately after sleep are critical times of day when the children are winding down for the day and getting ready for a new day. Mr Keeps says that there are care benefits in the same care worker providing care at those times.[60]

[116] Ms Wall gives evidence in relation to the operations of Infinity. Prior to 2023, Infinity rostered care workers were generally rostered to perform work for two separate periods (totalling 16 hours) immediately before and after a sleepover, but has now changed the rostering arrangements such that one care worker is rostered to perform work prior to a sleepover and then perform the sleepover and another care worker commences at 6am the following day.[61] Ms Wall states that this change has undermined Infinity's ability to provide consistent, stable and predictable care to children, means that more carers are involved in the care of the children, that the ability of care workers to provide care is compromised and also means that the frequency and time taken in staff changeovers is increased.[62] Ms Wall submits that care practitioners have expressed dissatisfaction with new rostering arrangements.[63]

[117] Ms Scragg gives evidence in relation to the operations of CARA. From 2022, CARA changed its rostering practices such that care workers are still rostered before and after a sleepover period but only such that the total work period does not exceed 10 hours.[64] Ms Scragg says that a number of adverse consequences have been caused by the new rostering arrangement. Ms Scragg says that clients have a higher number of care workers supporting them, clients experience greater disruption and less continuity of care, there might be some departures from the care plan of a client, there is an increased need for staff changeovers, a considerably higher number of care workers are required, it has been necessary to use labour hire employees and CARA has received complaints from clients and their families.[65]

[118] The Ai Group also relies on the evidence of Michelle Black as expert evidence. Ms Black is a trauma counsellor and behaviour specialist and is also an organisational development consultant to a residential care provider for young people. Among other things, Ms Black gave evidence as to the importance of predictability and consistency and expressed the opinion that care facilities are aware of the need to maximise consistency, predictability and continuity of arrangements affecting the young people in their care.[66] In relation to staffing, Ms Black said:[67]

Based on my qualifications and in my experience, there is a connection between the escalation of unproductive behaviour in young people and their experience of changes to the adults that are appointed to care for them in the residential setting. A young person in residential care is already vulnerable to feeling insecure and unsafe in a strange environment. The insecurity is increased when different people are coming into and out of the home and assuming care responsibilities for the young person.

It has also been my experience that young people who wake up after sleeping for the night to find the same staff member or members with them in the morning as were present the night before, are generally more settled and receptive to their programs, the care workers and learning.

The episode of sleep at the end of the day is an important, intimate experience in the life of a young person residing in care. It is a time when the young person is emotionally vulnerable and giving himself or herself to sleep may be challenging (noting that their environment may be unfamiliar to them). It is all the more important that the caregivers in the residence who are responsible for putting the young person to bed are able to greet the young person upon waking. This provides reassurance and avoids the young person developing anxiety about what may or may not have happened during the sleeping interval. By contrast, a situation where the staff changeover happens during the sleeping interval can create the risk of the young person waking up and their sleep being disturbed, or the young person is confronted with a changed circumstance upon waking up.

[119] As this passage indicates, Ms Black emphasises the importance consistency and predictability in the period before and after sleep in order to enable a young person to feel safe and secure. Ms Black indicates that the view that consistency and predictability are important were demonstrated through a research project which she conducted in 2021 in relation to the operations of Family Centred Ltd.[68]

[120] In relation to the operations of Parkerville, Mr Rylatt gave evidence in relation to the Shared Care Model and the Care Rotation Model and gives the opinion that the way in which therapeutic carers are rostered is critical to achieving therapeutic objectives for children and young people residing in group foster or temporary care homes.[69] Mr Rylatt particularly gave evidence in relation to his experience working at the Belmont Youth Program. Mr Rylatt's evidence is that a 24 hour rostering arrangement was trialled in 2020. Mr Rylatt indicates that the introduction of a 24 hour model resulted in a reduction in critical incidents within the home and that children and young people being provided with care reported that they liked consistency, felt their relationships with carers improved, they had more time to spend with carers and that they found the rostering more predictable.[70]

[121] The Joint Unions tendered an expert report prepared by Professor Howard Sercombe and Dr Joshua Kalemba. Professor Sercombe is Associate Professor in Sociology of Youth and Western Sydney University and Dr Kalemba is a Lecturer in Youth Work also at Western Sydney University. In general terms, Professor Sercombe and Dr Kalemba accepted the importance for children of continuity of care and security in terms of their relationships with care givers and that this principle is even more salient for children from backgrounds involving trauma and for those who have experienced disrupted or discontinuous care.[71] Professor Sercombe and Dr Kalemba emphasised, however, that continuity of care through a 24 hour period is only one aspect of continuity of care. For example, Professor Sercombe and Dr Kalemba say:[72]

In our opinion, continuity of care over time (weeks, months, years) is at least as salient as continuity of care through the 24 hour cycle. It is important that young people are able to form relationships with youth workers over months and years, as well as hours and days.

[122] Professor Sercombe and Dr Kalemba accepted that it is beneficial to have minimum handovers between staff as these can be points of stress and anxiety.[73] However, they indicated that, although a 24 hour care model may result in continuity of care, the resulting fatigue and turnover may undermine that goal.[74] Professor Sercombe and Dr Kalemba concluded:[75]

In our opinion, while there is a wide variety of settings and sites covered by the Award, and notwithstanding that in some a 24-28 hour model may be functional or desirable, and recognising that the affective security of young people in care is critical, a 24-28 hour sleepover work model is neither necessary nor sufficient in terms of the provision of effective therapeutic care to vulnerable youth living in out of home care settings, may have unpredictable consequences across the sector, and may diminish the quality of care, including the continuity of care provided.

[123] We understand the opinion of Professor Sercombe and Dr Kalemba to be that although continuity and consistency of care are important and they favour longer working hours with less changes of staff, that approach has potential downsides if it contributes to worker fatigue and staff turnover.

[124] It was accepted by the Joint Unions that Professor Sercombe and Dr Kalemba did not themselves have expert knowledge to give opinion evidence in relation to the physiological impact of sleepover arrangements on sleep. To the extent that Professor Sercombe and Dr Kalemba make observations on the extent of interruption of sleep likely to be experienced by workers performing sleepovers, they relied on Dr Kalemba's own personal experience working in the sector, the content of witness statements filed by the Joint Unions in the proceedings and a literature review. In relation to the literature, it appears the only study which directly considered sleepover arrangements in the care sector in Australia is a paper by Dorrian and Grant.[76] It was agreed that this study related to only six individuals.[77]

[125] It is appropriate to make a number of observations in relation to the matters relied upon by the Ai Group and Parkerville. First, we accept that, in a general sense at least, the provision of care in a residential setting to children and young people is improved by continuity and predictability of care, including staffing. The evidence supports the conclusion that the goal of continuity and predictability is aided by rostering arrangements which allow the same care staff to be responsible for the care of clients on a regular basis, for sustained periods of time and in a manner that minimises the number of staff handovers which are required. This conclusion favours the SCHADS Award facilitating rostering arrangements which permit care to be provided in that manner.

[126] Second, the evidence is strongest in relation to the desirability of the same carer being present when the children or young persons prepare for and go to bed at night and wake up the following the morning. These are times when a young person is likely to be particularly vulnerable and insecure. An arrangement whereby a worker performs work for some period prior to and following a sleepover without working overtime is possible even under the Joint Union's proposal. In our opinion, the evidence in support of the proposition that provision of care over a 24 hour period by a single worker is significant is of less weight. In that respect, the Ai Group and Parkerville relied particularly on the evidence of Mr Rylatt. We accept the evidence of Mr Rylatt. However, we note that Mr Rylatt's specific study related to a single home operated by Parkerville. We accept the evidence of Professor Sercombe and Dr Kalemba that, although a 24 hour care model has the advantage of reducing handovers between staff, continuity of staffing over weeks and months is as important as continuity of staffing over individual 24 hour periods.

[127] Third, the evidence relied upon by the Ai Group and Parkerville is limited. The evidence directly concerned seven employers. Those organisations are generally of a reasonable size, and we accept their evidence is valuable and was not generally disputed. However, it is appropriate to record that virtually all of the evidence in relation to continuity of care or rostering arrangements around sleepover periods concerned out of home care for young persons. Other than brief evidence in the witness statement of Mr Rankine, no evidence is otherwise given in relation to the rostering arrangements in other circumstances in which sleepovers are performed, including disability care, drug and alcohol services, mental health services, homelessness services and family and domestic violence services, which are also covered by the SCHADS Award. Although one might think that continuity of care is important in other contexts as well, it is not possible to simply infer that the same issues or concerns will necessarily arise in other services.

[128] In relation to the limited nature of the evidence concerning the practices adopted by other employers with respect to sleepover arrangements, the Ai Group asserts that the Full Bench should not infer that other employers have not adopted rostering arrangements similar to those who did give evidence. It says that it would be unsurprising if employers were reluctant to come forward to describe employment arrangements which might contravene the SCHADS Award. The Ai Group referred to the following observations of Easton DP in Application by the Australian Industry Group [2024] FWC 2864:[78]

The CFMEU criticised the lack of evidence led by Ai Group about how clause 29 is applied in the industry. Ai Group submitted, quite understandably, that there are significant and serious practical challenges for employers to provide evidence in these kinds of proceedings. The practical reality is that most employers would not be prepared to draw attention to their arrangements in case their interpretation of the Award is wrong. As Ai Group also submitted, the CFMEU chose to lead no evidence at all, not even from an organiser.

[129] We do not necessarily agree that an inference should be drawn that employers will not come forward to defend arrangements which the Ai Group contend are defensible and consistent with the Award simply because that position might not be accepted. Parkerville, by way of example, quite properly self-disclosed potential contraventions to the Ombudsman and altered its arrangements as a result. In any event, whatever the reason for the state of the evidence, it remains the case that the evidence in relation to the continuity of care and the rostering arrangements commonly adopted in relation to sleepovers is substantially limited to out of home care for children and young people. This does not mean the evidence should be rejected or not considered. It does, however, reduce the force of the evidence where the applications seek to vary the SCHADS Award as a whole.

[130] Fourth, no party submits that the SCHADS Award currently provides, or should provide, that care workers are prohibited from working an eight hour shift prior to a sleepover period and another eight hour shift immediately following the sleepover. The only difference between the positions of the parties is whether some of that working time must be overtime and whether additional shift penalties are payable. The witnesses called by the Ai Group and Parkerville each gave evidence that the additional payments which would be required if the position of the Joint Union's is accepted are prohibitive and would make such rostering arrangements unviable given the current funding arrangements.

[131] Most of the witnesses also gave evidence estimating the amounts of the additional payments that would be required to be made and that they had determined it would not be viable to continue to operate a 24 hour care arrangement in light of existing funding arrangements. Just by way of example, Mr Rankine gave evidence that CLO determined that it would not be viable to pay for work performed on the entirety of the extension shift after at overtime rates, as this was a cost that could not be recovered under CLO's main funding arrangements under the NDIS and Department for Child Protection funding models.[79] Mr Keep gave evidence that, if ACA were to maintain the sleepover arrangement and remunerate care workers in accordance with the Ombudsman's interpretation of the Award, its wages bill would increase significantly. He indicates that the existing funding is insufficient to cover the additional cost.[80] Ms Wall indicates that Infinity changed the roster pattern for care workers solely because the cost implications of continuing the earlier arrangement were not sustainable and it had no capacity to seek additional funding.[81] The exception, among the services that were subject of evidence, is Parkerville which has been able to continue to operate a 24 hour care model by making additional payments to its care workers.

[132] It is unnecessary to set out the details of the funding arrangements, the specifics of which vary between different Commonwealth and State programs, or the precise financial calculations undertaken by the respective employers. We do not understand the substance of that evidence to be disputed by the Joint Unions. We are conscious that the restrictions imposed by funding arrangements do not dictate the determination of the Commission as to what is necessary to ensure a fair and relevant minimum safety net of terms and conditions in a modern award for the purposes of s 134(1) of the Act. In 4 yearly review of modern awards - Group 4 - Social, Community, Home Care and Disability Services Industry Award 2010 - Substantive claims [2021] FWCFB 6067, the Ai Group contended that, as a result of funding arrangements associated with the NDIS, employers could not and should not be saddled with additional employee entitlements. The Full Bench said in response:

[133] As mentioned earlier, it is the modern awards objective which is central to our consideration of the claims. The modern awards objective is to "ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions", taking into account the s 134 considerations. The importance of the modern awards objective is emphasised by the terms of s 138.

[134] The proposition advanced by Ai Group seeks, in essence, to elevate one set of considerations - the impact on business and employment costs - above all others. So much is clear from the submission that the constraints placed on employers by the operation of the NDIS should "form the cornerstone" of our consideration of the proposed variations leading to "the inevitable conclusion" that the claims be dismissed.

[135] We reject the proposition advanced. The obligation to take the s 134 considerations into account means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process. And, as we have mentioned, no particular primacy is attached to any of the s 134 considerations.

[136] We accept that the impact of granting the claims on business and on employment costs is a relevant consideration and weighs against making the variations proposed by the Unions. But we reject the notion that the constraints placed on employers by the NDIS funding arrangements should be given determinative weight.

[137] In the context of the provision of social services where employers are largely dependent on government funding, or, in the case of the NDIS, a fixed price, we are cognisant of the fact that significant unfunded employment cost increases may result in a reduction in services to vulnerable members of the community - a point made by the NDS. But such outcomes are a consequence of current funding arrangements, which are a matter for Government. Further, as we have mentioned earlier (at [75] above) the evidence as to the impact of the recent budgetary increase to the NDIS is somewhat unsatisfactory. Nor was there much consideration given to the extent to which the impact of an increase in casual overtime work and work on weekends and public holidays may be ameliorated by the utilisation of part time and full time employees.

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

[133] We adopt the same approach in this matter. We accept that it is likely to be difficult for many services to roster employees for a full shift before and after a sleepover period within current funding arrangements if the variation sought by the Joint Unions is made and that those funding arrangements are unlikely to change quickly in response to changes in employment costs. That is relevant to our consideration of the modern awards objective, particularly s 134(1)(f), and we have taken that matter into account. However, the impact on business and employment costs is only one matter to be considered. Funding arrangements do not dictate the content of modern awards.

[134] For these reasons, we accept that the evidence establishes that continuity and predictability of care for children and young people living in residential facilities is beneficial, although the evidence is stronger with respect to the period before and after sleep than with respect to 24 hour care. The evidence is virtually entirely directed to out of home care for children and young people rather than other contexts in which sleepover work is performed, including disability care, drug and alcohol services, mental health services, homelessness services and family and domestic violence services. Periods of work before and following a sleepover period can be worked without overtime under the proposal by the Joint Unions. We also accept that 24 hour care arrangements would require overtime on the Joint Unions proposal and, under current funding arrangements, would be less likely to be worked if that proposal is adopted.

Other matters raised by the Ai Group and Parkerville

[135] The Ai Group, supported by Parkerville, raise a series of other considerations which are said to be relevant to whether the variation for which it contends is necessary to achieve the modern awards objective.

[136] First, it contends that the variation reflects an interpretation of the extant Award provisions that is reasonably arguable, preferable and has been adopted and applied by employers in the care industry. We accept that the fact that the interpretation for which the Ai Group advocates was favoured in Jats Joint supports adopting the variation it seeks. However, we do not accept that the evidence demonstrates that the interpretation advanced by Ai Group has been generally adopted and applied by employers in the care industry. We have before us evidence which relates only to a small number of employers and, other than Parkerville, each has changed its practices to abandon an approach which aligns with the Ai Group's approach. Furthermore, as will be set out below, the Ombudsman has been advising employers for many years that rostering employees before and following a sleepover period as ordinary hours may not comply with the SCHADS Award.

[137] Second, it submits that the variation sought by the Ai Group would enable employers to provide care to their clients particularly by facilitating continuity of care, with regular and predictable rostering arrangements. We have considered the evidence in relation to this contention above. As we have explained, we accept that the provision of care in a residential setting to children and young people is improved by continuity and predictability of care, including staffing. However, this consideration does not, in itself, require the variation sought by the Ai Group. The evidence, virtually entirely, relates only to out of home care for young people. The evidence more strongly supports the benefits of continuity between care provided before and after periods of sleep which can be accommodated on ordinary hours on the submission of all parties. A 24 hour care model can also be worked albeit at additional cost.

[138] Third, the Ai Group submits that its variation would also improve efficiency and productivity in the performance of work in the care industry where sleepover arrangements are permitted and called for, by reducing the instances in which it is necessary to hand over care from one employee to another. We accept that reducing handovers has care benefits at least in the context of the provision of care for children and young people. We accept that this may result in an improvement of efficiency to some extent, although we do not think it necessarily means an increase in productivity. The concept of productivity when used in the Act is directed at the conventional economic concept of the quantity of output relative to the quantity of inputs and a reduction in costs is not productivity in a conventional sense.[82]

[139] Fourth, the Ai Group submits that, to the extent that its variation would allow for ordinary hours to be worked on either side of a sleepover, that is reflective of a flexible modern work practice in that it allows ordinary hours to be compressed in the course of a given week. This, it submits, allows employees to maximise the periods that the employee is able to spend away from work. The submission assumes a benefit which has not been established by evidence. There is evidence suggesting that some employees might prefer the arrangement of hours the Ai Group supports. However, we do not accept that it is established that the arrangement is consistent with "flexible modern work practices". It is not common for employees to be at the workplace and away from their families and social life for periods of 24 hours without the payment of penalties or overtime (other than an afternoon shift penalty).

[140] Fifth, the Ai Group contends that the evidence demonstrates that the rostering practices that have been ushered in to reflect the Ombudsman's interpretation of the SCHADS Award have resulted in undesirable work-related impacts. We accept that, in the youth services which were subject of evidence in the proceedings, there is some evidence that there was a need to recruit more employees or resort to the use of labour hire if rostering arrangements were changed. However, as we have observed, no approach contended for by any party would prevent any rostering arrangements in an absolute sense. Any change to rostering arrangements has been prompted by funding considerations.

[141] Sixth, the Ai Group submits that the performance of overtime during a period of work after a sleepover is undesirable for a number of reasons. The reasons appear to involve, in substance, an assertion that it is undesirable to rely on the routine performance of overtime, superannuation payments and leave entitlements are ordinarily not calculated in a manner that include overtime payments and the payment of overtime has cost implications. We have addressed the cost implications of the performance of additional hours as overtime above. Otherwise, we accept that, if some or all of the period of work following a sleepover period is undertaken as overtime, it may give rise to considerations of whether the period of work goes beyond reasonable overtime and perhaps health and safety and fatigue concerns. We have taken that potential consequence into account. However, much of the evidence relied upon by the Ai Group suggested that, if work following a sleepover period was required to be undertaken as overtime, another employee would be engaged at least for most of the period. As such, those ramifications are unlikely to arise.

[142] Seventh, the Ai Group contends that the financial implications which arise with respect to overtime payments are also relevant to the payment of shift penalties for work on both sides of a sleepover. Again, we have considered the cost implications of employees being rostered before and after a sleepover period above. Those costs could include higher shift penalties. However, on the common pattern of working hours referred to in the evidence, the difference in the shift penalties payable if the variation sought by the Joint Unions was made would be a 15 per cent night shift loading rather than a 12.5 per cent afternoon shift loading on the period of work prior to the sleepover. The extent of the additional costs would be relatively modest compared to overtime costs.

[143] Eighth, the Ai Group submits that, as a matter of industrial merit, shift penalties should not be payable in respect of work that is performed, discontinuously, at a time of day that does not involve the disabilities that might be associated with the performance of particular shiftwork for which they are paid. The Ai Group notes that the Commission has previously varied the SCHADS Award with respect to broken shift work to ensure that shift penalties are only payable in respect of the part of a broken shift that satisfied the entitlement to a penalty. In particular, in 4 yearly review of modern awards - Social, Community, Home Care and Disability Services Industry Award 2010 [2021] FWCFB 5641, the Full Bench said:

[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.

[144] We accept that the same reasoning suggests that a shift allowance should be payable for a period in which active work is performed during a period which constitutes unsocial hours. The situation is somewhat more complex in relation to a period of work contiguous with a sleepover. Because of the sleepover period, the employee is required to stay at the workplace and is not free from obligations to their employer after the performance of active work ceases. That disability is best compensated by the allowance payable with respect to the sleepover period itself rather than by way of a shift allowance.

[145] Nineth, the Ai Group submits that, as a further matter of industrial merit, a sleepover should be treated as a break between shifts. It submits that a break from work is, in essence, a temporary stoppage of work and that a sleepover amounts to a break from work, except where an employee is required to perform active work as contemplated by clause 25.7(e). The Ai Group points out that an employee is permitted to sleep during a sleepover and that the employer is required to provide facilities that are designed to enable this to occur, such as a separate room with a bed and clean linen.

[146] We do not accept that it is apt to describe a sleepover period as a break in the ordinary sense. During a sleepover period, an employee is required to remain at the workplace and clause 25.7(e) expressly contemplates that the employee may be required to perform work during the sleepover period. The employee remains responsible for the facility and for the care of the children and young persons or other residents being provided with care at the facility. The employee is not free to undertake private, personal or social activities. The evidence in these proceedings discloses that an employee performing a sleepover at a residential home for children and young persons remains responsible for the residents throughout the night. The residents are frequently children or young people who have suffered significant trauma, family dislocation and behavioural problems.

[147] The Ai Group also submits that, during a sleepover, an employee is, in essence, engaged in an arrangement akin to being on stand-by, or on-call. We do not accept that submission. There is an obvious distinction between an employee who is an employee required to sleepover and an on call or standby arrangement. Whilst there may be some restrictions on the activities able to be undertaken by an employee who is on call, the employee is generally free to conduct themselves as they wish and can undertake personal, family and social activities. An employee performing a sleepover is not free to do so. In Warramunda Village Inc v Pryde [2002] FCA 250; (2002) 116 FCR 58, for example, Lee J expressed the view that:[83]

It cannot be said that, in rendering a "sleep-over shift", an employee is "on call" within the meaning of cl 32. For the purpose of cl 32 an employee who is off duty but "on call" is free to conduct his, or her, private life subject to the employer being able to direct the employee to report for duty, and to the employee organizing his or her affairs to be able to respond to that direction if given. See Suffolk County Council v Secretary of State for Environment [1984] ICR 882 (House of Lords). An employee who attends at the place of employment pursuant to the employer's direction to be at the employer's premises for a period of time and be available to provide service at the premises as required by the employer, is not carrying on private activities but is providing service to the employer. Such an employee is at "work" for the purposes of the 1995 award and is entitled to be remunerated according to the terms of the award. See Hospital Employees' Industrial Union of Workers v Lee-Downs Nursing Home (1977) 57 WAIG 455 per Burt CJ at 456.

[148] In the passage referred to in that paragraph from Hospital Employees' Industrial Union of Workers v Lee-Downs Nursing Home (1977) 57 WAIG 455 Burt CJ said:[84]

In my opinion, once [the magistrate] held that the worker was on the premises pursuant to instructions received from the employer 'to report any emergencies which arose relative to the inmates of the home' it follows that the whole of the time during which she was on the premises pursuant to those instructions was 'time worked' within the meaning of the award. It may be that an emergency seldom arose and it may be that an emergency never arose but that, I think, would make no difference. The worker was not on call in the sense that she could be called upon by the employer to work. She was, I think, under a continual duty to act if called by a patient and she falls into the category of persons who serve while waiting.

[149] There is a fundamental difference between an employee being on call and remaining at the workplace for a sleepover period. Even if not called upon to perform active work, the employee is compelled to remain at the workplace and remains responsible for the persons being provided with care at the facility. The employee is not merely on call.

[150] Tenth, the Ai Group submits that the variation it seeks would facilitate patterns of work that, by virtue of their regularity and predictability, would lend themselves to permanent employment as opposed to casual employment. There is no evidence to support that contention. None of the witnesses suggested that the changes made to the patterns of work had increased the use of casual employees. Some witnesses suggested that the services had been forced to increase use of labour hire workers as a result of moving away from the 24 hour care model.[85] However, we understood that evidence to arise from difficulties that had been encountered in attracting sufficient numbers of additional staff rather than that the pattern of work suited casual or contingent labour.

[151] Finally, the Ai Group submits that the variation it seeks is simple and easy to understand and that the existing provisions of the SCHADS Award are not. This submission does not assist. We have found that the existing provisions of the SCHADS Award dealing with sleepovers are ambiguous and uncertain. Ultimately, all parties accept that some variation should be made to clarify the entitlements that arise with respect to time worked prior to and following a sleepover period. An appeal to simplicity and clarity does not assist in establishing the substance of the variation that should now be made.

Sleep disruption and interruption of family and social life

[152] In support of their own application to vary the SCHADS Award and in response to the applications by the Ai Group and Parkerville, the Joint Unions relied substantially on the proposition that a sleepover period is not, as a matter of fact or as the concept is ordinarily understood, a break from work. For the reasons set out above, we do not accept that a sleepover period is a true break from work or capable of being described as a period in which the employee is merely on call or on standby. The substance of the contentions of the Joint Unions is that a sleepover period cannot, and should not, be treated as a break between shifts in those circumstances and clause 25.7 should be construed or varied accordingly.

[153] The Joint Unions seek to support that submission by asserting that there is considerable disutility associated with performing sleepover periods and work before and following a sleepover period. The Joint Unions emphasise that the employee sleeps at a location dictated by the employer and uses the facilities provided by the employer and that some employees find these facilities to be uncomfortable or inconvenient. An employee working a sleepover cannot participate in the community or engage in social and recreational activities or engage in other pursuits such as education and cannot fulfil their family responsibilities during that time.

[154] Although the degree to which an individual employee is affected by these features of performing a sleepover differ, the interruption of family and social life represents an inevitable consequence of employees being rostered for sleepover periods. The consequence of the type of roster arrangement referred to in the evidence is that an employee is required to remain at the workplace and away from family or social connection for a period of at least 24 hours. The Ai Group and Parkerville point out that this type of rostering arrangement allows for the ordinary hours of an employee to be condensed, and the employee will have longer periods off work throughout the week. This may be more or less attractive to employees depending on their personal preferences and circumstances. However, it cannot be denied that rostering of sleepover periods with substantial periods of work on either side of a sleepover gives rise to a considerable disutility by reason of the interruption of family and social life it causes.

[155] The Joint Unions also contend that sleepovers are fatiguing. The Joint Unions submit that:

• (a) Employees working sleepovers often do not fall asleep immediately at the start of the sleepover period. Many employees take time to fall asleep because their work is stressful.

• (b) It is common for employees to be disturbed by clients during a sleepover. The number of disturbances depends on the nature of the client or clients. In some circumstances, an employee may not sleep at all during a sleepover.

• (c) Sleepover are fatiguing even if an employee is not disturbed by a client during the sleepover. Most employees remain in a state of alertness through the sleepover period. Their sleep may also be disrupted by environmental factors such as lights, noises or uncomfortable bedding. Even the mere fact that they are sleeping at work can be fatiguing.

[156] In support of these propositions, the Joint Unions rely on witness statements prepared by 18 individuals workers engaged in a range of settings, including youth services, disability care, drug and alcohol services, mental health services and family and domestic violence services. None of the witnesses were required for cross-examination.

[157] We have considered all the evidence relied upon by the Joint Unions. It is not possible or necessary to comprehensively summarise all of this evidence in this decision, but it is appropriate to give some examples of the evidence. Elizabeth Biggs is a disability support worker employed by Life Without Barriers. Ms Biggs' evidence included that:[86]

To the best of my recollection, I have not had a full 8-hour uninterrupted sleep during Sleepovers. On each occasion that I have been rostered for a Sleepover, I have been required to provide assistance to a client.

In my experience, I am typically required to provide assistance to clients at least twice and, in some cases, up to six times during a Sleepover. I have had to assist clients during a Sleepover in a wide range of situations. I have set out below examples of situations that have arisen during a Sleepover, where I had to provide assistance to a client during a Sleepover:

(a) As noted above, one of the clients at is incontinent of urine and faeces and as a result has a wet bed alarm (WB Alarm). In my experience, the WB Alarm will typically sound at least twice during a Sleepover. When the WB Alarm sounds, I wake up to assist her with changing her clothes and pads, potentially changing bedding and also providing support with personal hygiene. Typically, on each occasion that the client is incontinent during a Sleepover, I am required to work for approximately one hour providing assistance and support to the client.

(b) One of the clients has a habit of knocking repeatedly on the door of the staff bedroom (where I sleep during a Sleepover) requesting assistance with operating their wireless headphones.

(c) One of the client's Mealtime Management Plan includes a requirement that staff must be within one meter of her at all times while she is eating (due to the choking risk associated with food). During Sleepovers I have been woken up by noises from a client rummaging for food in the fridge or panty in the kitchen which are. Due to the care plans of the client and the choking risk, I am required to get up and go downstairs to assist the client find suitable food in line with their care plan and monitor them eating.

[158] Ms Biggs gave further evidence of being disturbed as a result of clients moving around the hard floors of the residence, playing the television loudly late at night or talking to themselves and shouting throughout the night.[87] Syed Shah is a disability support worker working with children and adults with disabilities. Mr Shah described his experience of sleepover periods as follows:[88]

At 10pm, the client would go to bed and I would be in the passive component of my shift. I had a room in the house where I could sleep, but really I slept very little during the passive component of my shift. This is because the client often made noises during the night (for example, kicking the walls), which would wake me up and make it difficult for me to sleep. It is also because I had to be ready to get up at any time during the night to provide support to the client, if he was awake and needing support. I was meant to get paid an additional allowance for the times when I had to get up during the night to help the client, but I rarely claimed this allowance. There was a lot of administrative work that had to be done to make the claim, which was difficult when I was already busy and already tired.

[159] Michelle Whiffen is a disability support worker working with adults with disabilities. Ms Whiffen described her experience of sleepover periods in the following terms:[89]

I have a room in the client's house which I can use during the night. I bring my own bedding in a swag, and try to get as much sleep as possible. However, I never really sleep very deeply during the night because I am aware the whole time that my client might get up during the night, and need help from me. I get a shallow or broken sleep at best. I actually am up several times during the night to help my client when she gets out of bed.

[160] Carmel Swearse is a disability support worker working with adults with a disability. Ms Swearse gave the following evidence about sleepover periods:[90]

In reality, I got very little sleep during the passive component of my shift, because I had to be half-alert for the entire night to be able to hear if my client was awake and moving around the house, and might need support. The client did get up during the night to wander through the house, and to use the toilet. While getting up to use the toilet, she had on a number of occasions picked up own faeces and spread it around the house (on the walls, on the bed, etc), which created a terrible mess that I need to clean the next day. I really needed to be alert so that I could hear when she was getting up and needing support with her toileting, to make sure this didn't happen. Again, this may sound straightforward but can be really difficult if she was displaying aggressive or other challenging behaviours.

In other houses where I have worked in the past with different clients, it has been the same. I never really sleep, because I'm always listening out for the clients getting up, moving around and needing support. For example, I recall one client with intellectual disability in a house where I was doing sleepover shifts who used to engage in aggressive behaviours, including biting objects such as furniture and also other people. When I was working in the house with that client, I had to be alert at all times in case she woke up and started biting, because it was a real risk to herself and other people. I found it almost impossible to sleep in the house with that client. 1 have also worked in houses where clients are just noisy during the night, and it's hard then to get any sleep anyway.

[161] Adrian van Lith is a mental health worker and gave this evidence in relation to sleepover periods:[91]

The sleepover commences at 11 PM at which time I move into the office/sleepover room. At sometime this room would have been the master bedroom of a house. The room now has the office equipment and a single bed. The room has a desk, a computer, locked medication cabinets, a first aid box, a fridge, and a medication fridge. Light comes into the room through the windows and doors. At some of the other group homes the residents' bedrooms are adjacent to the sleepover room and these can be very noisy.

At the Lyneham SIL group home the exit door to the smoking area is adjacent to the office. Each of the four residents smokes and leave the house at least 4 to 5 times a night which can keep me awake.

I sleep about five hours a night. However, the quality of the sleep varies. I generally get to sleep at around 1 AM and then get up at about 6 or 6:30 AM. I am often disturbed during the evening. One resident, who I will describe as "R1", has acquired brain injury and has difficulty regulating his smoking. R1 can go through an entire packet of cigarettes in two hours. R1 chooses to keep his cigarettes in the office so that he needs to ask me each time he has a cigarette. Quite often R1 knocks on the door until about 1 AM to repeatedly ask for a cigarette.

Residents are often out in the evening and come home at midnight, or at one or two in the morning. Residents have often lost their keys and come to the sleepover room to be let in to their bedrooms.

Residents often have psychotic episodes and will lie awake responding to voices or having nightmares. There are occasions where this behaviour can go on for half the night and I will have very little sleep because of the noise and the need to monitor the residents' behaviour.

[162] Rebecca Raymond is a youth worker at ACA and gave evidence which included the following:[92]

I currently provide 1:1 support to a 9-year-old with ADHD, I describe my work with that your person below. I am regularly disturbed during the night.

I have also worked in placements where a young person might be absent or abscond during the night and I have had to drive around searching for the young person/s.

There can be other issues I encounter during the sleepover which can cause disturbances. This is generally when a young person is unsettled because:

a. they are ill, for example colds, flu, COVID-19, gastro); or

b. they are anxious, distressed, depressed or having nightmares.

It is common for on young person's illness or distress to impact the other young people at the residential facility.

The young person will sometimes wake during the night.

If the young person wakes, I will need to redirect them back to bed.

If the young person wakes, it will take me approximately 1 hour to fall back to sleep.

Currently I have on average 5 hours of interrupted sleep during a sleepover. I am a heavy sleeper and I often find that I get anxious when undertaking a sleepover because I want to make sure I am available for the young person if they need me.

When I undertake a sleepover, I typically wake up at around 5.00am. This gives me an hour to get dressed, make the bed and clean the office/sleepover room for the next worker who is due to commence work at 6.00am.

[163] Witness 1 works in a family and domestic violence service and gave evidence in relation to sleepover periods she performed:[93]

In this statement, when I refer to 'callbacks' I mean disturbances and other forms of unscheduled work during the sleepover portion of my shift.

Callbacks were not predictable. Some weeks there was call back on every shift I'd work, particularly when I'd work Friday and Saturday nights. Sometimes there would be two or three call-backs in the same shift at all hours of the night. Other times the night can be quiet.

If a referral came through you need to get up from sleep and do an assessment, figure out the options for the woman and her children's safe accommodation and physical and material needs. I would then coordinate outreach, transport, accommodation and material aid so that

the woman and her children can be somewhere safe. I would also then provide a referral to a day service during business hours.

We had a referral the other month that took over three shifts in order to coordinate her response. It usually takes 2 to 5 hours. There is a lot to arrange and there is often police involvement. It is never a quick thing.

Obviously, I would have to wind down again before I could get to sleep. Knowing that there are only a couple of hours before 1 need to get up meant that it was not super restful sleep. If there was time I would try to go back to sleep after dealing with a referral. Most of my colleagues told me that they are all unable to do this. I think I am better able to go back to sleep after dealing with a referral than my former colleagues because I am better able to switch off when I need to.

[164] Lucy Beaton works at a drug and alcohol service and gave this evidence:[94]

During the 7 hours when I'm supposed to be asleep, any of the up to 20 residents are able to knock on my door if there is an emergency.

It's usually on straight away from the residents. They ask questions from the start of my sleeping period. As the cohorts are constantly changing, I have to repeatedly reassert boundaries, that I am really only onsite during the sleep period to deal with emergencies. As the cohort deals with a lot of sleep issues if those boundaries are not set they will wake me up just because they can't sleep or need some Panadol for a minor headache. However, if someone is distressed or in actual need I will support that person immediately despite it being outside of my 'work' hours.

The knowledge of this prevents me from sleeping deeply. I feel like I'm sleeping with one eye open, that's kind of the point of me being there. I have only been woken up by a knock on the door 2-3 times in my time here but it still affects my sleep.

[165] Each of the witnesses to which we have referred also gave detailed and highly personal evidence in relation to the impact of performing sleepovers on them physically and psychologically, on their social lives and on their relationships with partners, children and other family. We accept that evidence and the force of it. We accept that this evidence is likely to be indicative of the inevitable impact of extended periods at a workplace, including overnight. The experiences of individuals will, of course, not be uniform. Some employees may adapt well to, and even prefer, the rostering arrangements associated with sleepover work. Those rostering arrangements have the potential to condense working hours into a few days each week. In general, however, this evidence supports the view that a sleepover period should not be regarded as a break from work.

[166] The Ai Group essentially asks the Commission to attach no significance to the evidence of the individual employees who gave evidence on the basis that the number of employees who gave evidence represent a small proportion of the total workforce covered by the SCHADS Award. The Ai Group referred to evidence that the SCHADS Award covers over 248,000 employees.[95] That submission is somewhat misleading. It is not suggested that all employees perform sleepovers and there is no evidence before the Commission of the number of employees who perform sleepovers. The evidence of the individual employees was not subject of any cross-examination. The reply evidence, to which we will refer below, contested that evidence only at the margins in relation to the frequency of work interruptions. We accept that the individual employee evidence provides a valuable insight into the type of experiences of employees performing sleepovers.

[167] The Joint Unions also relied upon survey evidence. The UWU's National Disability Sector Co-ordinator, Mark Whenan, gave evidence that the UWU conducted two surveys of its members in relation to sleepovers. The first survey commenced in April 2024 and asked questions which included how often sleepovers are performed, rostering arrangements on either side of a sleepover period, the support provided by workers during a sleepover, the regularity of interruptions and whether claims were made for payments if work is performed during a sleepover. At the time of the preparation of evidence, 217 responses had been received from disability support workers.[96] Not all respondents answered all the questions. For example, 138 people responded to the question of how many hours they are rostered to work before and after a sleepover and indicated a median response of eight hours, indicating those employees did not work on separate shifts either side of a sleepover. There were 114 responses in relation to the cause of the interruptions during a sleepover period.[97]

[168] The second survey was launched in May 2024 and again targeted at disability support workers who are members of the UWU. The survey sought to gather stories and experiences of disability support worker members and asked questions including as to the type of work undertaken during a sleepover, how many hours of sleep workers receive and the frequency of interruptions, anxiety, burn out and fatigue.[98] The survey appears to have attracted either 288 or 284 responses. The responses indicate that most of those employees sometimes perform various types of duties during a sleepover, the majority have either 3-4 hours or 5-6 hours sleep and that approximately 22 per cent indicated that their sleep is interrupted all of the time, 30 per cent most of the time and 35 per cent sometimes.[99]

[169] Shane Elliott, a Regional Organiser for the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (the PSA) gave evidence of a survey conducted of its members which received 63 responses.[100] The responses provided information in relation to the proportion of respondents who had undertaken sleepovers, the roster patterns they perform, the payments received for sleepovers, the frequency and duration of disturbances and the impact of sleepovers. For example, of the responses received, approximately 30 percent of respondents said they are always disturbed, 25 per cent said on most shifts and 36 per cent said infrequently.[101]

[170] The Commission is frequently called upon to consider survey evidence, particularly in award cases. The Commission has long acknowledged that the probative value which can be attached to survey evidence will be influenced by matters such as survey design, collection method and sampling processes. For example, in the Re Annual Wage Review 2012-13 [2013] FWCFB 4000; (2013) 235 IR 332, the Full Bench commented:[102]

There are well-understood rules about the conduct of surveys that need to be followed if the results of a survey of a sample of a particular population are to accurately represent the picture that you would get if you obtained the same information from that entire population. These rules include that the sample size or proportion sampled must be large enough. Most important, the sample for the survey must be selected on a random basis. If a membership list is used as the basis for a survey, then it is essential that those that respond are properly representative of the entire membership base (e.g. by firm size, form of ownership, industry sector, geographic location). Where this is not the case, then the responses become more like case studies or anecdotes - accounts of the situation of those who did respond, but not to be taken as representative of the survey population (e.g. the membership) as a whole. Even where the survey is representative of the membership, it needs additional evidence to show that it is representative of, for example, employers more broadly.

In evaluating the extent to which we can rely on survey evidence that is submitted to us, we would look for an account of the nature of the survey population, the method of collecting responses, the response rate and total number, evidence that the respondents are a true random sample (or close enough) of the survey population, and testing of findings against comparable aggregates produced by the ABS or other known reliable sources. It would also assist to provide a record of the questions asked.

[171] Common deficiencies in survey design and implementation arise from non-response bias where not all respondents answer the questions posed and self-selection bias when respondents decide for themselves whether or not to participate in a survey. Both deficiencies lead to the potential that survey responses will not be representative of the wider population sought to be surveyed.[103] However, the assessment of survey evidence is not a binary task such that a survey is either accepted or rejected. Most survey evidence will have some methodological limitations, but that does not necessarily mean that the evidence is without any value at all. The central issue is the extent to which the various limitations impact the reliability of the results and the weight to be attributed to the survey data.[104]

[172] The survey evidence presented by Mr Whenan and Mr Elliott is, in our opinion, at the lower end of the spectrum of reliability. The surveys were each conducted by simply inviting relevant members of the UWU and the PSA, respectively, to respond to the surveys. The sample sizes were not large. The respondents were self-selected, and not all respondents completed all questions. The potential for non-response and self-selection bias is obvious. Put simply, it is likely that members who are dissatisfied with, or concerned about, their working arrangements related to sleepovers are more likely to have responded to a survey on the subject or, at least, there is no basis upon which it could safely be concluded that the responses are representative. The surveys are not without any value. There is no reason to doubt that the surveys accurately reflect the responses of those employees who participated. However, given their methodological limitations and sample sizes, the surveys cannot be regarded as more than anecdotal. The surveys do not permit us to conclude much more than that some other employees experience sleep interruption and fatigue associated with sleepover work beyond those who gave evidence directly.

[173] The Joints Unions provided expert evidence in the form of a report prepared by Professor Shanthakumar Wilson Rajaratnam.[105] Professor Rajaratnam has been Professor of Sleep and Circadian Medicine in the School of Psychological Sciences at Monash University since 2013 and is currently the Head of the School of Psychological Sciences. He is the Chair of the Monash Sleep Network and the Sleep Health Foundation, which is Australia's leading advocate of sleep health in the community, as well as being a past president of the Australasian Sleep Association, the peak body representing sleep health professionals and researchers throughout Australia and New Zealand. There was no dispute as to Professor Rajaratnam's expertise or capacity to give expert evidence in relation to the matters subject of his report.

[174] Professor Rajaratnam was asked to provide an opinion in relation to the impact of a 24-28-hour sleepover work model on an employees' sleep health, mental health, wellbeing and fatigue, the impact of a 24-28-hour sleepover work model on an employee's ability to perform care and social support work in a safe manner and the impact of a 24-28-hour sleepover work model on an employee's ability to engage positively with the people they support. Professor Rajaratnam gave an opinion that working a 24-28 hour sleepover work model falls short of providing sufficient sleep opportunities and that interrupted or disrupted sleep is the primary cause of fatigue. Professor Rajaratnam expressed the opinion that:[106]

Inadequate sleep has profound effects on emotional and mental health and wellbeing, leading to diminished emotional expressivity, impaired emotion recognition, increased emotional reactivity, and general emotional dysregulation (Beattie, Kyle et al. 2015). Sleep deprivation is linked to increased irritability, anger, and hostility; elevated reactivity to problematic events; and reduced friendliness, happiness, and empathy (Gordon, 2016). Individuals who are sleep deprived are also worse at resolving interpersonal conflicts (Gordon and Chen 2014). These issues can significantly degrade social functioning and overall mental health. Shift workers, particularly those working prolonged or night shifts, commonly experience mood disturbances, anxiety symptoms, depressed mood, and reduced motivation, often accompanied by impaired cognitive function (Smith-Coggins, Rosekind et al. 1997). Longer working hours have been associated with a higher prevalence of depression and anxiety disorders (Kleppa, Sanne et al. 2008) while better mental health outcomes, including lower depression and fatigue scores, are observed when work hours are limited to less than 12 hours per day and 58 hours per week (Suwazono, Nagashima et al. 2007).

[175] Professor Rajaratnam continued by expressing the view that fatigue has been shown to degrade task performance and that these deficits are particularly concerning in care and social support roles, where maintaining vigilance and making sound decisions are critical for ensuring the safety and wellbeing of participants.[107] Professor Rajaratnam said:[108]

Overall, the proposed 24-28-hour sleepover work model may pose significant risks to not only employee performance and safety, but also and participant safety. The increased shift duration could lead to greater fatigue-related impairments, heightening the risk of accidents and reducing the quality of care. Employers should carefully consider these potential impacts and explore strategies to mitigate fatigue.

[176] The Professor summarised his opinion in the following terms:[109]

It may be argued that a 24-28-hour sleepover work model could benefit participants by providing continuity of care, a clear, structured, consistent, and predictable routine and environment, and consistency and predictability before and after a sleep interval to help participants feel safe and secure. It also may allow for stable and predictable work patterns performed by small teams with only one staff handover required each day. However, the challenge lies in creating an environment that promotes support workers' sleep health, mental health, wellbeing and safety. These factors are crucial for employees' safety and productivity and may in turn, impact on how support workers engage with the people they support. Based on the information provided, I cannot support the proposed 24-28-hour sleepover work model, due to the likely adverse impacts on employees' sleep health, safety, or performance. This conclusion is based largely on research available from fields, as information on carers is limited. I recommend conducting an evaluation to assess these factors in carers. Such an assessment would be important to understand before proposing or implementing a 24-28hour sleepover work model.

[177] Professor Rajaratnam accepted that there is only sparse research in relation to the effects on sleep of sleepover shifts in the care industry and recommended that further research be undertaken.[110] Professor Rajaratnam further acknowledged that the effects of sleep disturbance on individuals will vary significantly and that a worker's sleep health in their own home environments will differ. The Professor nonetheless maintained his opinion that there is a high likelihood of disruption involved in sleepover periods.[111] We accept the opinion of Professor Rajaratnam that the performance of work on extended shifts on either side of a sleepover period has the potential to cause fatigue for care workers by reason of inadequate sleep or sleep disturbance and that fatigue has the potential to compromise the standard of work performance of those employees, although these impacts are likely to vary between individuals and in different workplace contexts.

[178] The evidence filed in reply by the Ai Group and Parkerville disputed the frequency of interruptions during sleepovers. In summary, some of the witnesses indicated that their services expected records to be maintained of disturbances which occur during sleepovers and those records suggest a lower frequency of interruption than presented in the evidence of the Joint Unions. For example, Mr Rankine states that, with respect to CLO's operations, it is expected that workers will complete a support log or "antecedent behaviour consequence" log in the event of a disturbance during a sleepover.[112] In response to the evidence of a witness called by the Joint Unions, Mr Shah, Mr Rankine says that the records indicated that the proportion of active hours to passive hours during sleepover periods for Mr Shah was very low.[113]

[179] Mr Keep gave evidence that ACA expects care workers to advise it of active work that occurs during a sleepover via their timesheets and a shift report or incident report.[114] Mr Keep reported that from 1 March 2024 to 31 August 2024 there were 7,686 sleepovers performed across 42 homes and there were 700 instances of "work during sleepover" (or approximately 9.1 per cent of all sleepovers). He also indicates that the average duration of active work during a sleepover period was 2.1 hours.[115] Ms Lloyd gave evidence that Anglicare SQ expects youth workers to advise of disturbances during a sleepover through the electronic rostering system or an employee's timesheet.[116] Ms Lloyd indicates that 5,643 sleepovers were performed over a six month period and there were 111 instances in which it was recorded that the sleepover was disturbed, meaning approximately 1.97 per cent of sleepovers were disturbed in the period.[117]

[180] Parkerville filed witness statements made by two employees, Mark Allen and Rosemary Couttie. Mr Allen is a therapeutic carer employed by Parkerville. He gives evidence that, during a sleepover, he is usually able to sleep for between six and seven hours, is disturbed on average about once per fortnight and does not experience significant fatigue.[118] Ms Couttie is also a therapeutic carer employed by Parkerville. She says that, when she performs a sleepover, she usually gets between seven and eight hours sleep, is rarely disrupted during the night and that it generally takes under an hour to resettle the child.[119] Both Mr Allen and Ms Couttie say that working in a 24 hour care model has advantages in being able to build a parent like relationship with children in care and stronger bonds with the children.

[181] Having carefully considered the evidence advanced by the respective parties, we are satisfied that the evidence is sufficient to establish it is not uncommon for employees performing sleepovers to be interrupted during the sleepover period. That might occur either because the employee is called upon to do work providing care or support to a resident, or simply because the employee is sleeping in an environment where they are responsible for the care of residents and noise or disturbance arises from the conduct of residents or the environment of the residential facility. The frequency, duration and nature of the interruptions is likely to vary significantly between different types of facilities or contexts and the degree to which an employee is affected by disturbance is likely to vary depending on personal characteristics and inclinations.

[182] We do not consider that it is necessary to attempt to determine with precision the average frequency or duration of disturbances or the common duration of disturbances. For the reasons we have given, we do not consider that a sleepover period should be characterised as a break from work because the employee is required to remain at the workplace, remains responsible for the facility and the clients, is present to be called upon to perform work if necessary and is not free to undertake personal, social or other activities. It is sufficient to support that conclusion that employees performing sleepovers can be interrupted and this is not uncommon. It is unnecessary to form a view as to the precise extent to which sleep disturbance or interruption occurs generally. Employees are required to be at the workplace so they can be disturbed if it is necessary to provide care to the clients.

[183] We also do not consider it is necessary to attempt to make findings as to the extent to which performing sleepovers cause fatigue or the extent to which fatigue may impede performance during periods of work before and after a sleepover. A number of the employee witnesses gave evidence that they are fatigued as a result of performing sleepovers and we accept their evidence. The extent to which that is the case is likely to vary and whether the degree of fatigue is likely to affect employee performance is controversial. The Joint Unions suggested that this may affect the quality of care provided and threaten health and safety. We accept the opinion of Professor Rajaratnam that extended shifts on either side of a sleepover period have the potential to cause fatigue which may compromise the performance of work tasks by care workers.

[184] On the material before the Commission in the present matter, however, that is not a matter that should be addressed through the payment provisions in the SCHADS Award. Employers have a duty of care with respect to clients being provided with care. Employers also have occupational health and safety obligations to their employees, which has a separate source to modern awards made by the Commission. As the Industrial Relations Commission observed in Re NSW Department of Community Services Community Living & Residential (Interim) (State) Award (2000) 100 IR 447:[120]

It follows, from this approach, that the prohibition of sleepovers has not been considered by the WorkCover Authority as necessary for employers to meet their obligations under the Occupational Health and Safety Act. Ms Pompili gave evidence of minimum standards which WorkCover expects employers who have sleepover arrangements to meet. Employers who choose not to meet these standards or otherwise fail to meet their legal obligations, may face the prospect of prosecution by WorkCover for breach of their obligations under the Occupational Health and Safety Act.

Employees performing any work in safe circumstances, including sleepover work, is not a matter of choice, but of statutory obligation. The strict nature of the obligations imposed by the Occupational Health and Safety Act have been oft discussed and should be well understood by employers and employees in this State.

That those obligations give rise to difficulty in adherence, particularly when they intersect with other important statutory obligations, is not unusual. In this case there is obvious intersection between the statutory obligations which both employers and employees have to persons with disabilities, to whom the provisions of federal and State disability legislation apply and the obligations which arise under the Occupational Health and Safety Act. Meeting the former obligations cannot, however, be achieved at the risk of the health and safety of employees, no matter what other interests and obligations must be met. If the approach adopted by an employer to its statutory obligations to persons with disabilities, had the end result that employees were injured at work, one of the likely outcomes would be a breach of the obligations imposed by the Occupational Health and Safety Act. The problems which the Department faces as a result, can well be appreciated.

[185] No party is requesting that the SCHADS Award be varied to prohibit work before and after a sleepover on grounds that it is unsafe. The dispute concerns the characterisation of the work performed and the payments that should attach to work performed before and after a sleepover. In this matter, it is unnecessary to make more detailed findings in relation to the extent to which sleepovers cause fatigue or fatigue may impede performance during periods of work following a sleepover.

[186] For these reasons, we are satisfied that the SCHADS Award contains an ambiguity or uncertainty in relation to the rostering of work on either side of a sleepover period and that it should be varied to remove the ambiguity or uncertainty under s 160(1) of the Act. Given the competing applications as to the variation that should be made, we have considered the form of the variation that is necessary to achieve the modern awards objective. We are satisfied that the variation we propose is necessary to achieve the modern awards objective in providing a fair and relevant minimum safety net of terms and conditions, taking into account the factors listed in s 134(1) of the Act.

[187] In forming our conclusions, we have taken into account each of the considerations set out in s 134(1) to the extent they are relevant to our consideration and the evidence and submissions of the parties. It is appropriate to refer to the factors as follows:

(a) With respect to s 134(1)(a), there is no dispute that a proportion of the relevant employees covered by the SCHADS Award are low paid.[121] Although it is of limited importance in this matter given the applications do not directly concern the level of pay, some employees may receive additional remuneration if employers continue to roster employees consistent with a 24 hour care model. We have taken this consideration into account.

(b) With respect to s 134(1)(aa), we consider that the need to improve access to secure work across the economy is a neutral consideration. There is some suggestion in the Ai Group's submissions that employers continuing to adopt a 24 hour care model would increase secure employment. We do not consider that the evidence establishes such a proposition.

(c) With respect to s 134(1)(ab), we consider the need to achieve gender equality in the workplace by ensuring equal remuneration for work of equal and comparable value, eliminating gender-based undervaluation of work and providing workplace conditions that facilitate women's full economic participation is a neutral consideration. The SCHADS Award covers employees in a female dominated industry. However, the present applications do not address the valuation of the work performed. At most, it might be said that ensuring appropriate remuneration for work following a sleepover may facilitate women's full economic participation. We do not consider an evidentiary case to establish that matter has been advanced.

(d) With respect to s 134(1)(b), we consider the need to encourage collective bargaining is a neutral consideration. Arguably, the Joint Unions' application may encourage collective bargaining as a method of establishing arrangements which permit a 24 hour care model, which appears to be favoured by some employers. However, there is insufficient evidence to establish that this is a substantial consideration.

(e) With respect to s 134(1)(c), the need to promote social inclusion through increased workforce participation is also a neutral consideration. The care sector is an important avenue for workforce participation and, through workforce participation, social inclusion. In a general sense, appropriate employment conditions should encourage workforce participation, but there is little evidence to demonstrate that the variations sought by any party would likely have any substantial impact on workforce participation.

(f) With respect to s 134(1)(d), the need to promote flexible modern work practices and the efficient and productive performance of work somewhat favours the variation sought by the Ai Group and Parkerville. The Ai Group submits that allowing for ordinary hours to be worked on either side of a sleepover would improve productivity and efficiency and is reflective of a flexible modern work practice. There is some evidence that there may be benefits, at least in relation to the care of children and young people, to facilitating work prior to and following a sleepover, although the evidence is reasonably limited. We are satisfied that those outcomes will, at least substantially, be achieved by the variation we propose.

(g) With respect to s 134(1)(da), the need to provide additional remuneration for overtime, unsocial, irregular and unpredictable hours, weekends and public holidays favours the variation proposed by the Joint Unions. Although the phrase "unsocial hours" is commonly understood to refer to times of day or the week, the potential for employees to be required to remain at the workplace for periods of 24 hours without additional payment is capable of being regarded as failing to provide additional remuneration for unsocial hours. That consideration favours the Joint Unions variation but is also addressed by the variation we proposed.

(h) With respect to s134(1)(f), we have addressed the likely impact of the variations sought on business, including on productivity, employment costs and the regulatory burden, by addressing the submissions advanced by the Ai Group and Parkerville above and have taken those matters into account.

(i) With respect to s 134(1)(g), the need to ensure a simple, easy to understand, stable and sustainable modern award system favours a variation being made to the SCHADS Award. All parties now accept that the SCHADS Award is relevantly ambiguous or uncertain and, evidently, is not presently ensuring a simple or easy way to understand the modern award system. The objective of the variation we propose is to provide clear and easily understood provisions with respect to sleepovers. We propose to permit the parties to comment on the draft determination by allowing submissions to be made as to the terms of the variation.

(j) With respect to s 134(1)(h), there is no probative evidence that the variations to the SCHADS Award sought by any party will have any substantial impact on employment growth, inflation and the sustainability, performance and competitiveness of the national economy. This is a neutral consideration.

[188] We have also considered the submissions made by Business NSW and Business Industrial in relation to the respective applications. We particularly observe that Business NSW and Business Industrial submit that the concerns expressed by the Joint Unions in relation to employees being rostered to work immediately before and immediately after a sleepover could be addressed by appropriate safeguards. Those parties suggest that the SCHADS Award could provide that the rest break be waived (or the sleepover only count as a rest break for the purposes of clause 25.4) by agreement between the employer and the employee or, alternatively, a sleepover constitutes a break only if there is a reasonable expectation the employee will get adequate rest or was not required to perform any work during the sleepover. We consider there is merit in the proposal that an extension be available by agreement following a sleepover period. We do not consider the alternative proposal is practical.

[189] In summary, we consider that the variation that should be made should have the following features:

• (a) A sleepover period cannot properly be treated as a break from work and should not be considered a break for the purposes of the SCHADS Award. Consequently, clause 25.4 should be varied to make clear that, where an employee is rostered to perform work both immediately before and immediately after a sleepover, the sleepover period is not a break and both periods of work should be treated as one shift for the purposes of the Award.

• (b) Given the nature of a sleepover period, and the potential benefits of the same employee performing work immediately before and after a sleepover period, the SCHADS Award should permit the employer and employee to agree to a longer period of ordinary hours for a shift if the shift includes a sleepover period. Clause 25.1 should be varied to provide that the employer and employee may agree that the ordinary hours of a shift performed partly before and partly after a sleepover period can be up to 12 hours provided that the maximum period of work either before or after the sleepover shall be eight hours. For example, an employee could be rostered to work eight hours prior to the sleepover and four hours after the sleepover, or six hours before and six hours after a sleepover. Clause 28.1(b) should also be varied such that a part-time or casual employees could work up to 12 hours without the payment of overtime where the shift includes a period immediately before and after a sleepover.

• (c) It would continue to be possible for an employee to perform a longer extension shift after completing a sleepover period having worked before the sleepover period. However, work for longer than a total period of 12 hours immediately before and after a sleepover period will need to be overtime and paid at overtime rates because it would constitute work done in addition to an employee's rostered ordinary hours on any day or shift for the purposes of clauses 28.1(a) and 28.1(b). We do not consider a basis has been demonstrated by the Joint Unions to provide for an immediate overtime rate of 200 percent (or 225 per cent for a casual) for those periods. Work an employee is required to perform during a sleepover period will continue to be paid as overtime.

• (d) Where work is performed immediately before and immediately after a sleepover period, it is appropriate that shift penalties be calculated by reference to the period of active work rather than the whole period of the shift. Clause 29.3 should be varied to provide that the portion of work prior to and following a sleepover is treated separately for the purposes of determining the loading to be paid under clause 29.3(a), (b) or (c). For example, when an employee works from 2.30pm to 10.30pm, performs a sleepover and then works from 6.30am to 10.30am, the employee would be entitled to the afternoon shift loading for the first portion of work and no shift loading for the second portion of work.

[190] The Ai Group and Parkerville contend that the variations they seek to the SCHADS Award should be made to have effect, pursuant to s 165(2) of the Act, from the commencement of the Award on 1 January 2010. In oral submissions, the Ai Group contended that, even if the Commission did not vary the Award prospectively in a different way, a variation in the form it seeks should be made retrospectively to the commencement of the SCHADS Award to validate past practices of employers and to resolve ongoing disputation about past compliance. Given that we have determined to vary the SCHADS Award in a manner different to the variation sought by the Ai Group and Parkerville, it is necessary to consider whether the Award should be varied retrospectively as those parties seek.

[191] Section 165 of the Act provides for when a determination varying a modern award comes into operation as follows:

165 When variation determinations come into operation, other than determinations setting, varying or revoking modern award minimum wages

Determinations come into operation on specified day

(1) A determination under this Part that varies a modern award (other than a determination that sets, varies or revokes modern award minimum wages) comes into operation on the day specified in the determination.

Note 1: For when a modern award, or a revocation of a modern award, comes into operation, see section 49.

Note: For when a determination under this Part setting, varying or revoking modern award minimum wages comes into operation, see section 166.

(2) The specified day must not be earlier than the day on which the determination is made, unless:

(e) the determination is made under section 160 (which deals with variation to remove ambiguities or correct errors); and

(f) the FWC is satisfied that there are exceptional circumstances that justify specifying an earlier day.

Determinations take effect from first full pay period

(3) The determination 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 the day the determination comes into operation.

[192] A determination varying a modern award comes into operation on the day specified in the determination. That day must not be earlier than the day on which the determination is made unless both the conditions in s 165(2) are met. In Re 4 Yearly Review of Modern Awards - Preliminary Jurisdictional Issues [2014] FWCFB 1788; (2014) 241 IR 189, the Full Bench said:[122]

[57] The effect of s 165 is clear. A variation to a modern award comes into operation on the day specified in the determination (the "specified day"). The default position is that the "specified day" must not be earlier than the day on which the variation determination is made. In other words determinations varying modern awards generally operate prospectively and in relation to a particular employee the determination takes effect from the employee's first full pay period on or after the "specified day". Section 165(2) provides an exception to the general position that variations operate prospectively. It is apparent from the use of the conjunctive "and" in s 165(2) that a variation can only operate retrospectively if the variation is made under s 160 (which deals with variations to remove ambiguities or uncertainties, or to correct errors) and there are exceptional circumstances that justify retrospectivity.

[193] The phrase "exceptional circumstances" is used throughout the Act. An exceptional circumstance need not be unique, or unprecedented, or very rare, but it cannot be one that is regularly, routinely, or normally encountered.[123] Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which when taken together are seen as exceptional and the assessment will require consideration of all relevant circumstances.[124] In the context of s 165(2), the exceptional circumstances must "justify" specifying an earlier date in that those circumstances warrant the modern award being varied with retrospective effect.

[194] The SCHADS Award is, in relevant respects, ambiguous and uncertain and should be varied under s 160(1) of the Act. The requirement of s 165(2)(a) is met. However, we are not satisfied there are exceptional circumstances justifying specifying an earlier date for a variation to come into operation for the purposes of s 165(2)(b) or, even if there were, that it is appropriate to exercise our discretion to vary the SCHADS Award with retrospective effect in the manner sought by the Ai Group and Parkerville.

[195] First, in its further submissions filed after the decision in Jats Joint, the Ai Group acknowledged that it might be said that the decision reduces the need for retrospectivity because the decision has, in its submission at least, validated the conduct of some employers in not treating a sleepover as part of a shift. However, the Ai Group submits that retrospectivity is nonetheless justified as the decision could be subject of appeal and there are extant proceedings concerning ACA and Parkerville. We understand that the decision in Jats Joint has been appealed, but the appeal is yet to be heard.[125] We do not consider it is appropriate to vary the SCHADS Award with retrospective effect in those circumstances. In circumstances in which it is possible that the decision will be overturned on appeal, it is not appropriate for the Commission to retrospectively vary the SCHADS Award on the assumption that the decision is correct. A relevant consideration in deciding whether to vary a modern award retrospectively may be the degree to which accrued rights may be affected.[126] It is not possible to now know, or consider, the degree to which accrued rights of employees might be affected by a retrospective variation.

[196] Second, and in any event, the primary basis upon which the Ai Group and Parkerville submit that the SCHADS Award should be varied retrospectively is that there has been a practice in the care industry of rostering work on either side of a sleepover and treating the two periods of work as separate shifts. The evidence does not demonstrate that there has, since the commencement of the SCHADS Award, been a widespread practice of employers treating a period of work immediately before and after a sleepover as distinct shifts. The evidence that is before the Commission relates to a relatively small number of employers primarily providing residential care for children and young people. As we have noted, the Ai Group submits that other employers may be reluctant to come forward to provide evidence of practices that might involve contraventions of a modern award. Whatever the reason for the state of the evidence currently before the Commission might be, we are not satisfied that there has been widespread use of rostering arrangements of the type referred to by the Ai Group in a manner that would support a finding that there are exceptional circumstances justifying a retrospective variation to the SCHADS Award.

[197] Third, the Ai Group contends that there is a substantial amount of disputation concerning the correct construction of the SCHADS Award and that the Award should be varied with retrospective effect to cure the disputation and avoid unintended monetary consequences.[127] Again, the evidence said to support the contention is limited. There is evidence of three employers in the care sector who have been subject of compliance notices issued by the Fair Work Ombudsman alleging contraventions of the SCHADS Award arising from rostering related to sleepovers (ACA, Parkerville and Jats Joint). We do not accept the Ai Group's submission that the Commission should simply infer that "potential compliance issues flowing from the ambiguity and uncertainty to the entire industry are widespread with significant monetary consequences". There is no basis for such an inference to be made. In this matter, a retrospective variation has the potential to reward some employers who have adopted particular rostering arrangements in the absence of evidence that the arrangements were widespread. Furthermore, of those employers, Parkerville has already made very substantial back payments to current and former employees. It indicated in the course of the proceedings that it does not intend to seek to recover those payments even if a retrospective variation is made.

[198] Fourth, the Commission requested that the Ombudsman provide information to the Commission as to the advice it has provided to employers in relation to their obligations with respect to rostering around sleepover periods. The request sought records of any advice or guidance it has published on its website in relation to the sleepover provisions of the SCHADS Award and the time periods during which any such advice or guidance was available to the public on the FWO's website. In response to the request, the Ombudsman indicated that the earliest advice it had published on that subject was available from September 2016. The advice included:[128]

Can employees work before and/or after a sleepover?

Employees must be rostered or paid for a minimum of 4 hours' work for one of the periods.

Yes. The sleepover and the hours worked before and/or after the sleepover are counted as one continuous shift.

Shift allowances will apply when a shift meets the definition of an afternoon, night or public holiday shift.

They're only paid for the hours the employee works before and/or after a sleepover.

Bernie works from 5pm until 10pm Monday, does a sleepover from 10pm until 6am then works from 6am to 9am on Tuesday.

Bernie's shift is finishes at 9am. This isn't an afternoon or night shift. Bernie gets paid ordinary pay rates for 5pm to 10pm on Monday and for 6am to 9am on Tuesday.

No. A sleepover can't count as a break between rostered work periods.

Does a sleepover count as ordinary hours of work?

No. Only work before and/or after the sleepover counts as ordinary hours.

[199] The Ombudsman further advised that information with similar content was provided on its website from mid-2013 and provided a screenshot of its website from12 February 2024. That is, since 2013 or at least September 2016, the Ombudsman has provided advice that work prior to and after a sleepover constitutes a single shift, shift allowances are payable and a sleepover does not constitute a break. The correctness of that advice is, obviously, questionable in light of the decision in Jats Joint. Nonetheless, to the extent that employers have adopted practices that depart from the Ombudsman's guidance, we do not consider those practices support a finding that there are exceptional circumstances justifying retrospectivity given the existence of guidance from the regulator to the contrary over a long period of time.

[200] Finally, the Ai Group submits that the SCHADS Award should be varied from the time of its commencement because the variation it seeks aligns with the intention of the Australian Industrial Relations Commission when the Award was first made. For the reasons we have set out above in addressing the submissions relating to the award modernisation process, we do not accept that the material before the Full Bench permits us to discern the actual intent of the provisions as first made. This consideration does not support a conclusion that there are exceptional circumstances justifying a retrospective variation.

[201] For these reasons, we propose to vary the SCHADS Award under s 160(1) of the Act to remove an ambiguity or uncertainty. We are separately satisfied that the variations we propose are necessary to achieve the modern awards objective and can be included in the Award. A draft determination to vary the SCHADS is attached to this decision. The interested parties will be provided with an opportunity to comment on the form of the proposed variations.

M Follett KC and M Garozzo, of counsel, for the Australian Industry Group.

S Wood KC and A Crocker, of counsel, for Parkerville Children and Youth Care Incorporated.

K Scott, Director, for Australian Business Lawyers and Advisers.

[1] Application by The Australian Industry Group [2024] FWCFB 385.

[2] Application by The Australian Industry Group [2024] FWC 2045 at [19].

[3] Jats Joint Pty Ltd v Fair Work Ombudsman [2025] FCA 743; (2025) 342 IR 328 at [117].

[4] Fair Work Act 2009 (Cth), s 43(1)(b).

[5] Witness statement of Brett Rankine dated 11 June 2024, [22].

[6] Witness statement of Brett Rankine dated 11 June 2024, BR-2.

[7] Witness statement of Brett Rankine dated 11 June 2024, [28].

[8] Witness statement of Brett Rankine dated 11 June 2024, [33].

[9] Witness statement of Brett Rankine dated 11 June 2024, [34] and [49]-[52].

[10] Witness statement of David Keep dated 10 June 2024, [46].

[11] Witness statement of David Keep dated 10 June 2024, [48].

[12] Witness statement of David Keep dated 10 June 2024, [55]-[56] and DK-4.

[13] Witness statement of David Keep dated 10 June 2024, [58] and DK-6.

[14] All Care Australia Pty Ltd v Fair Work Ombudsman [2024] FCA 545 at [53].

[15] Witness statement of David Keep dated 10 June 2024, DK-6.

[16] Witness statement of Shelley Wall dated 10 June 2024, [51].

[17] Witness statement of Shelley Wall dated 10 June 2024, [52] and [56].

[18] Witness statement of Sally Scragg dated 30 October 2024, [24].

[19] Witness statement of Sally Scragg dated 30 October 2024, [26]-[28].

[20] Witness statement of Tammy Lloyd dated 10 June 2024, [28].

[21] Witness statement of Tammy Lloyd dated 10 June 2024, [29].

[22] Witness statement of Tammy Lloyd dated 10 June 2024, [33].

[23] Witness statement of Tammy Lloyd dated 10 June 2024, [35]-[38].

[24] Witness statement of Tammy Lloyd dated 10 June 2024, [49] and [56].

[25] Witness statement of Kim Brooklyn dated 11 June 2024, [29]-[37].

[26] Witness statement of Kim Brooklyn dated 11 June 2024, [34]-[36].

[27] Witness statement of Kim Brooklyn dated 11 June 2024, [58]-[62].

[28] Witness statement of Tammy Lloyd dated 10 June 2024, [28].

[29] Jats Joint at [106]-[107] (Stellios J).

[30] Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033 at [37] (Bromberg J).

[31] Jats Joint at [105] (Stellios J).

[32] Re Brack; Ex parte Operative Painters and Decorators Union of Australia (1984) 58 ALJR 125 at 126 (Mason, Murphy, Wilson, Brennan and Deane JJ).

[33] Re Variation on the Commission's own motion - Modern award superannuation clause review [2023] FWCFB 264 at [51] referring to Re Australian Industry Group [2021] FWCFB 115 at [20]- [21]; Journalists Published Media Award 2020 [2022] FWC 839 at [8]; Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50; (2020) 275 FCR 385 at [73]- [78] and Vehicle Manufacturing, Repair Services and Retail Award 2010 [2016] FWCFB 4418 at [73].

[34] Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50; (2020) 275 FCR 385 at [66]- [78] referring, among other authorities, to Printing and Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 449 and Re Tenix Defence Systems Pty Ltd Certified Agreement 2001-2004 [2002] AIRC 531 at [49].

[35] Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50; (2020) 275 FCR 385 at [67] referring to Cannon Hill Services Pty Ltd v Australasian Meat Industry Employees' Union [2016] FWC 7256 at [8].

[36] Jats Joint at [106] (Stellios J).

[37] Re Variation on the Commission's own motion - Modern award superannuation clause review [2023] FWCFB 264 at [52].

[38] Qube Ports Pty Ltd v Construction, Forestry and Maritime Employees Union [2024] FCAFC 132; (2024) 305 FCR 554 at [99] (Wheelahan J).

[39] Re Variation on the Commission's own motion - Modern award superannuation clause review [2023] FWCFB 264 at [53].

[40] Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161; (2017) 253 FCR 368 at [41]- [44]; 4 yearly review of modern awards - Award stage - General Retail Industry Award 2020 [2020] FWCFB 6301; (2020) 301 IR 296 at [15].

[41] Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161; (2017) 253 FCR 368 at [49]- [50].

[42] National Retail Association v Fair Work Commission [2014] FCAFC 118; (2014) 225 FCR 154 at [56]; 4 yearly review of modern awards - Award stage - General Retail Industry Award 2020 [2020] FWCFB 6301; (2020) 301 IR 296 at [16].

[43] Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161; (2017) 253 FCR 368 at [48].

[44] National Retail Association v Fair Work Commission [2014] FCAFC 118; (2014) 225 FCR 154 at [105]- [106]; 4 yearly review of modern awards - Award stage - General Retail Industry Award 2020 [2020] FWCFB 6301; (2020) 301 IR 296 at [17].

[45] National Retail Association v Fair Work Commission [2014] FCAFC 118; (2014) 225 FCR 154 at [109]- [110]; 4 yearly review of modern awards - Award stage - General Retail Industry Award 2020 [2020] FWCFB 6301; (2020) 301 IR 296 at [17].

[46] 4 Yearly Review of Modern Awards - Penalty Rates [2017] FWCFB 1001; (2017) 265 IR 1 at [269].

[47] Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161; (2017) 253 FCR 368 at [33]- [34].

[48] Shop, Distributive and Allied Employees Association v National Retail Association & Anor (No 2) [2012] FCA 480; (2012) 205 FCR 227 at [46].

[49] 4 yearly review of modern awards - Award stage - General Retail Industry Award 2020 [2020] FWCFB 6301; (2020) 301 IR 296 at [22].

[50] See, for example, Construction, Forestry, Mining & Energy Union v Giudice [1998] FCA 1404; (1998) 89 FCR 200 at 208-209; Ulan Coal Mines Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia [2025] FCAFC 127; (2025) 311 FCR 352 at [87].

[51] Construction, Forestry, Maritime, Mining and Energy Union v Anglo American Australia Ltd [2019] FCAFC 109; (2019) 271 FCR 22 at [126].

[52] Shop, Distributive and Allied Employees Association and Another v Australian Industry Group [2017] FCAFC 161; (2019) 253 FCR 368 at [111].

[53] Exhibit 54 (Fair Work Commission: A profile of employee characteristics across modern awards), p41.

[54] 4 Yearly Review of Modern Awards - Penalty Rates [2017] FWCFB 1001; (2017) 265 IR 1 at [269](2).

[55] Published together with the statement in Re Award Modernisation Statement [2009] AIRCFB 865; (2009) 188 IR 23.

[56] Re Award Modernisation Statement [2009] AIRCFB 945; (2009) 190 IR 370 at [80] and [82].

[57] Print PR531544.

[58] Re Australian Federation of Employers and Industries [2010] FWA 5123 at [44]- [47].

[59] Witness statement of David Keep dated 10 June 2024, [25]-[27].

[60] Witness statement of David Keep dated 10 June 2024, [30]-[41].

[61] Witness statement of Shelley Wall dated 10 June 2024, [51]-[52].

[62] Witness statement of Shelley Wall dated 10 June 2024, [60].

[63] Witness statement of Shelley Wall dated 10 June 2024, [61].

[64] Witness statement of Sally Scragg dated 30 October 2024, [26]-[28].

[65] Witness statement of Sally Scragg dated 30 October 2024, [36]-[48].

[66] Witness statement of Michelle Black dated 10 June 2024, [28].

[67] Witness statement of Michelle Black dated 10 June 2024, [31]-[33].

[68] Witness statement of Michelle Black dated 10 June 2024, MB-1.

[69] Witness statement of Johnny Rylatt undated, [40].

[70] Witness statement of Johnny Rylatt undated, [44]-[58].

[71] Report of Professor Sercombe and Dr Kalemba dated 27 August 2024, [7.2.1].

[72] Report of Professor Sercombe and Dr Kalemba dated 27 August 2024, [7.2.8].

[73] Transcript PN2317-2322 (Sercombe and Kalemba).

[74] Report of Professor Sercombe and Dr Kalemba dated 27 August 2024, [7.2.9].

[75] Report of Professor Sercombe and Dr Kalemba dated 27 August 2024, [7.2.19].

[76] Dorrian, J., Grant, C. and Banks, S., 2017. An industry case study of 'stand-up' and 'sleepover' night shifts in disability support: Residential support worker perspectives, Applied ergonomics, 58, p110-118.

[78] Application by the Australian Industry Group [2024] FWC 2864 at [116].

[79] Witness statement of Brett Rankine dated 11 June 2024, [33] and [48].

[80] Witness statement of David Keep dated 10 June 2024, [68]-[69] and [71].

[81] Witness statement of Shelley Wall dated 10 June 2024, [56].

[82] Schweppes Australia Pty Ltd v United Voice (Vic Branch) (2012) 226 IR 236 at [45]-[46]; Re Horticulture Award 2020 [2021] FWCFB 5554; (2021) 311 IR 1 at [511].

[83] Warramunda Village Inc v Pryde [2002] FCA 250; (2002) 116 FCR 58 at [17] (Lee J). See also at [37] and [43] (Finkelstein J).

[84] Hospital Employees' Industrial Union of Workers v Lee-Downs Nursing Home (1977) 57 WAIG 455 at 456 (Burt CJ).

[85] Witness statement of Sally Scragg dated 30 October 2024, [44]-[47].

[86] Witness statement of Elizabeth Biggs dated 2 September 2024, [28]-[29].

[87] Witness statement of Elizabeth Biggs dated 2 September 2024, [31]-[34].

[88] Witness statement of Syed Shah dated 27 August 2024, [21].

[89] Witness statement of Michelle Whiffen dated 30 August 2024, [16].

[90] Witness statement of Carmel Swearse dated 29 August 2024, [17]-[18].

[91] Witness statement of Adrian van Lith dated 6 August 2025, [26]-[30].

[92] Witness statement of Rebecca Raymond dated 27 August 2024, [15]-[19] and [44]-[48].

[93] Witness statement of Witness 1 dated 29 August 2024, [30]-[31] and [36]-[38].

[94] Witness statement of Lucy Beaton dated 6 August 2024, [28]-[30].

[95] Exhibit 54 (Fair Work Commission: A profile of employee characteristics across modern awards), p41.

[96] Witness statement of Mark Whenan dated 3 September 2024, [27]-[29].

[97] Witness statement of Mark Whenan dated 3 September 2024, MAW-1.

[98] Witness statement of Mark Whenan dated 3 September 2024, [31]-[32].

[99] Witness statement of Mark Whenan dated 3 September 2024, MAW-2.

[100] Witness statement of Shane Elliott dated 3 September 2024, [48]-[50].

[101] Witness statement of Shane Elliott dated 3 September 2024, SE-02.

[102] Re Annual Wage Review 2012-13 [2013] FWCFB 4000; (2013) 235 IR 332 at [441]- [442].

[103] Re 4 Yearly Review of Modern Awards - Horticulture Award 2010 [2017] FWCFB 6037; (2021) 270 IR 253 at [117]- [118].

[104] Re 4 Yearly Review of Modern Awards - Penalty Rates [2017] FWCFB 1001; (2017) 265 IR 1 at [1097].

[105] Report of Professor Shanthakumar Wilson Rajaratnam dated 2 September 2024.

[106] Report of Professor Shanthakumar Wilson Rajaratnam dated 2 September 2024, [25].

[107] Report of Professor Shanthakumar Wilson Rajaratnam dated 2 September 2024, [29].

[108] Report of Professor Shanthakumar Wilson Rajaratnam dated 2 September 2024, [33].

[109] Report of Professor Shanthakumar Wilson Rajaratnam dated 2 September 2024, [39].

[110] Transcript PN1502-1506 (Rajaratnam).

[111] Transcript PN1540-1557 (Rajaratnam).

[112] Witness statement of Brett Rankine dated 11 October 2024, [11]-[14].

[113] Witness statement of Brett Rankine dated 11 October 2024, [16]-[19].

[114] Witness statement of Dean Keep dated 11 October 2024, [5].

[115] Witness statement of Dean Keep dated 11 October 2024, [6]-[8].

[116] Witness statement of Tammy Lloyd dated 9 October 2024, [5]-[6].

[117] Witness statement of Tammy Lloyd dated 9 October 2024, [7].

[118] Witness statement of Mark Allen dated 11 October 2024, [14]-[17].

[119] Witness statement of Rosemary Couttie dated 11 October 2024, [13]-[16].

[120] Re NSW Department of Community Services Community Living & Residential (Interim) (State) Award [2000] NSWIRComm 172; (2000) 100 IR 447 at [53]- [55].

[121] 4 Yearly Review of Modern Awards - Social, Community, Home Care and Disability Services Industry Award 2010 - Substantive claims [2021] FWCFB 2383 at [4].

[122] See also Re 4 Yearly Review of Modern Awards - Horticulture Award 2010 [2017] FWCFB 6037; (2021) 270 IR 253 at [168]- [169].

[123] Maan v Minister for Immigration and Citizenship [2009] FCAFC 150; (2009) 179 FCR 581 at [51] (Dowsett, Greenwood and Collier JJ) referring to observations by Lord Bingham of Cornhill CJ in R v Kelly [1999] UKHL 4; [2000] QB 198 at 208.

[124] Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26]- [27] (Rares J); Yacoub v Pilkington (Aust) Ltd [2007] NSWCA 290 at [66] (Campbell JA).

[125] Federal Court proceedings NSD1394/2025.

[126] See, for example, Re Toll Transport Pty Ltd T/A Toll Transport [2022] FWC 3346 at [208](b).

[127] Referring to Re 4 Yearly Review of Modern Awards - Horticulture Award 2010 [2017] FWCFB 6037; (2021) 270 IR 253 at [170].

[128] Correspondence from the Fair Work Ombudsman dated 13 December 2024.

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