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[2021] FWC 2391
General information, not legal advice.
Fair Work Commission
2021-06-15
Original judgment source is linked above.
s.739 - Application to deal with a dispute
Australian Municipal, Administrative, Clerical and Services Union
Application to deal with a dispute -classification of employees under enterprise agreement.
[1] This application arises from a notification of a dispute made by The Australian Municipal, Administrative, Clerical and Services Union (NSW and ACT Services Branch) (the Union) pursuant to s.739 of the Fair Work Act 2009. The issue in dispute is the correct classification of particular employees of Focus ACT. The relevant industrial instrument is the Focus ACT Enterprise Agreement 2011 (the Agreement).
[2] The Agreement covers Focus ACT and its employees who are employed in one of nine specified classifications, the first three of which are Accommodation Support Workers Grade 1, 2 and 3. Schedule 2 of the Agreement provides an explanation of the work covered by each of the classifications under the Agreement.
[3] There is no issue that the Commission has jurisdiction to deal with the matter in dispute.
[4] A hearing was conducted by telephone on 3 February 2021, with Mr G South appearing for the Union, and Mr M Xuereb appearing for Focus ACT.
[5] The Union contends that the work performed by employees employed by Focus ACT as Accommodation Support Workers (ASWs) aligns with the work described in Schedule B of the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award). Schedule B covers Social and Community Services employees.
[6] In 2012, the Commission made the Social, Community and Disability Services Industry Equal Remuneration Order 2012 (the ERO) which allowed for a progressive increase in rates of pay for employees in the 'Social and Community Services' and 'Crisis Accommodation' classifications under the Award. The ERO applies to Schedule B employees.
[7] Focus ACT contend that the work performed by its employees aligns with Schedule E of the Award, that being Home Care work. The ERO does not apply to Home Care employees.
[8] Section 306 of the Act provides that a term of a modern award, an enterprise agreement or an FWC order has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of an equal remuneration order that applies to the employee.
[9] The key issue in dispute, then, is whether work performed by the relevant Focus ACT employees align with Schedule B or E of the Award, and as a result whether the ERO applies to the relevant employees.
[10] There is no dispute that the Agreement applies to Focus ACT employees.
[11] In determining this dispute, I have had regard to the principles applicable to the construction of an enterprise agreement which were canvassed in detail in Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd[1] and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Limited[2] (Berri).
[12] For the reasons set out below, I find that the work Focus ACT requires its employees to perform is more closely aligned to Schedule E of the Award. Accordingly, the ERO does not apply.
[13] Schedule 2 of the Agreement sets out the descriptors of the classifications covered by the Agreement. The first three levels of ASWs as follows:
The role of an Accommodation Support Worker is to assist people to live as independently as possible and to be part of the community. The type of support is tailored to each individual and may include a combination of domestic, personal and social assistance that is provided in line with the Disability Services Act, the National disability standards and in a way that supports Focus' philosophy of enabling each person to be a valued member of the community.
Indicative tasks an Employee at this level may perform are as follows.
2. Community, Personal and Social Support stream
3. Service standards, reporting and accountability stream
The role of an Accommodation Support Worker is to assist people to live as independently as possible and to be part of the community. The type of support is tailored to each individual and may include a combination of domestic, personal and social assistance that is provided in line with the Disability Services Act, the National disability standards and in a way that supports Focus' philosophy of enabling each person to be a valued member of the community.
Indicative tasks an Employee at this level may perform are as follows.
2. Community, Personal and Social Support stream
3. Service standards, reporting and accountability stream
The role of an Accommodation Support Worker is to assist people to live as independently as possible and to be part of the community. The type of support is tailored to each individual and may include a combination of domestic, personal and social assistance that is provided in line with the Disability Services Act, the National disability standards and in a way that supports Focus' philosophy of enabling each person to be a valued member of the community.
Employees who only undertake a higher level of responsibility with some individuals will be eligible for a higher duties allowance at this level.
Employees employed at this level will be paid at the higher pay point set out at Schedule 1 if the Employee holds a level 3 Certificate in Community Services - Disability Work.
Indicative tasks an Employee at this level may perform are as follows.
2. Community, Personal and Social Support stream
Under the direction of a senior manager, assist in the coordination of a person/household with high needs. Duties and responsibilities may include:
4. Service standards, reporting and accountability stream
[14] A position description for the position of ASW Grade 2 was annexed to the witness statements of Ms Marsh, Ms Watson and Ms Knipler. The position description is not repeated here and is in substantially the same terms as the description of ASW Grade 2 in Schedule 2 of the Agreement.
[15] Schedules B and E of the Award are also relevant to this dispute but are not set out in full here as the Schedules collectively are 25 pages long.
[16] Clause 3 of the Award provides the following definition of social and community services sector, and of home care work:
home care sector means the provision of personal care, domestic assistance or home maintenance to an aged person or a person with a disability in a private residence
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 personal 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.
[17] The Union called evidence from Ms Kathleen Knipler, Ms Mollee Marsh, Ms Faye Twaddle and Ms Anne Watson, all of whom were current or former employees of Focus ACT.
[18] Each provided a description of the work they performed and the skills they said were required to perform the role. These witnesses said that they did much more than just home care, which they described as the provision of personal care, domestic assistance or home maintenance. Their role, they argued, involved supporting clients to live their lives as meaningfully as possible.
[19] Ms Knipler states that she supported clients with complex communication needs and behaviours and provided examples of clients with aggressive behaviour and Downs Syndrome. Ms Watson states that she had numerous clients with complex communication needs and behaviours prior to 2018, including clients who would verbally abuse her and were violent towards her and clients who would physically attack support workers and engage in self-harm. Ms Marsh states she had a number of clients with complex needs that she supported prior to 2018. She gave examples of clients with Retts Syndrome, Acquired Brain Injury, Autism Spectrum Disorder, Epilepsy and mental health issues.
[20] The Union contended that the description of the duties of ASWs contained in the Agreement reflect those of the Schedule B employee under the Award. It highlighted the following duties of ASWs which include:
assisting individuals to develop and maintain personal, community and social relationships
assisting individuals to be part of the community and develop their social skills and networks
advocating on behalf of individuals in dealing with personal, community and/or business issues
supporting individuals to develop independence by facilitating participation in budgeting, shopping and related tasks of managing their own home
working as an effective team member to provide appropriate support to individuals to enable them to achieve their goals.
[21] In support of its contentions, the Union relied on a witness statement of Judith Wright, Deputy Secretary of the ASU, which was prepared in the context of the four yearly review of the Award.
[22] The Union also contended that in October 2018 it provided Focus ACT with the basis for the correct classification of the relevant employees as covered by Schedule B rather than Schedule E, and as a result Focus ACT agreed to pay the relevant employees under schedule B of the Award. However, Focus ACT had refused to correctly classify its employees prior to October 2018 and continues to do so.
[23] In its submissions, the Union said that the dispute is easily resolved because it was well-settled that employees who are home care employees provide:
"... Personal or physical support for a client. A typical example of this is the type of support required for clients who have a physical disability do not have an intellectual disability. The person who depends on a wheelchair may need assistance getting out of bed, showering, dressing and with house work. However they may not need and are not provided with other support such as living skills. These clients would live in their own homes or otherwise live independently".
[24] This submission was based on an extract of what the Union said was the uncontested witness statement of Sally McManus in the Equal Remuneration Case. The fact that this is well-settled, contended the Union, is demonstrated by the fact that the National Disability Insurance Agency (NDIA) funds this work.
[25] The Union contended that the work performed by the relevant employees is performed in group homes and includes 24-hour care, as well as individual care in the homes of clients. They also take clients into the community to engage in other activities such as social outings, shopping, and medical appointments. These activities, it submitted, are completely inconsistent with the definition of the home care sector contained in the Award, which is the provision of personal care, domestic assistance or home maintenance to an aged person or a person with a disability in a private residence.
[26] The Union also relied upon the current price guide issued by the NDIS which showed an example of home care support in the following terms:
This support item assists the participant to undertake or develop skills to maintain their home environment where the participant owns their own home or has sole or substantial responsibility for its maintenance. Includes assisting participant to do basic house and yard work.
[27] The Union contended that Focus ACT provided support to some clients who did not own their own home or had substantial responsibility for its maintenance.
[28] The Union highlighted some of the evidence of Focus ACT to the effect that by reviewing its employment classifications in 2018, it allowed Focus ACT to begin consultation with employees around involving to an 'Active Support framework model' which would one day fall within the scope of social and community services stream (ie Schedule B) of the Award. In making this statement, the Union submitted, Focus ACT was suggesting that the work performed by its employees is not currently disability services work but might be one day. It submitted that this was an absurd submission which actually had the effect of supporting the Union's position.
[29] The Union submitted that home care work and disability work are distinct sectors, and while it is possible for an employer to employ workers in different sectors, employees do not change sectors simply because work becomes more complex.
[30] In terms of the correct approach to classifying the relevant employees, the Union argued that it must first be established which sector the employer and employees work in, by reference to the definitions in clause 3 of the Award. In contrast, the approach put forward by Focus ACT was that the definitions in clause 3 of the Award should not be relied on in determining which Schedule of the Award an employee is employed under, and that this should instead be determined by the descriptors in the classification levels of each Schedule. The Union contended that the purpose of the classification descriptors in each Schedule was to determine the appropriate level at which an employee should be employed based on their skills, knowledge and responsibility levels. The classification descriptors were not to be used to make the determination of which sector work is performed and therefore which Schedule an employee is engaged under. This is the function of the definitions in clause 3 of the Award.
[31] In terms of the communication reports tendered by Focus ACT, the Union submitted that these reports are not a detailed description of the characteristics, skills and responsibilities of the work performed by the relevant employees. In the circumstances, the Commission should regard the reports merely as supplementing the uncontested evidence of the Focus ACT employees. Otherwise, it argued, when the communication reports are assessed against the definitions, it is clear that many of these reports include lifestyle support and are thus disability services. Specifically, the reports showed that employees are engaged in sleepovers, active night shifts, activities in the community, monitoring of medical conditions, providing medication, and managing complex and challenging behaviours all of which are beyond the definition of home care.
[32] In summary, the Union contended that the relevant employees are disability support workers covered by the ERO, and have been entitled to ERO pay rates since its inception.
[33] Focus ACT submitted that it engaged employees to provide home care services to clients with a disability to live independently where possible.
[34] When the Agreement was approved in 2011, in its F17 form it confirmed that the relevant employees were the equivalent of Home Care workers under the Award, and this was accepted by the Commission when it approved the Agreement.
[35] Focus ACT said that in September 2017 the Union contacted it to raise an issue of the appropriate classification of its employees. The Union alleged it misclassified these employees and they were in fact Schedule B employees under the Award and entitled to the benefit of the ERO.
[36] By September 2018 an agreement was reached between Focus ACT and the Union in which, without admission of liability or error and as a gesture of goodwill, Focus ACT would pay the relevant employees a rate of pay equivalent to the ERO. It did so because it wanted to remain competitive in the market and retain quality staff, rather than losing them to other organisations who might pay higher wages.
[37] Focus ACT contended that a fair review of the descriptors in Schedule B and E of the Award show that the work required to be performed by its employees most closely aligned with Schedule E. Accordingly, it had met its industrial obligations to its employees.
[38] It argued that while the limited definitions in clause 3 of the Award provided some helpful guidance in determining the applicable stream (ie Schedule B or E in this case), given the crossovers between the two definitions and the ambiguity in the final sentence of the social and community services definition, it contended the best approach was to directly compare the duties of its employees to the classifications set out in Schedules B and E of the Award.
[39] In making this submission, Focus ACT relied on a decision in Australian Workers' Union v Coffee Information Pty Ltd [2013] FWCFB 2894; [2013] 232 IR 266 which considered the question of which award was relevant in determining whether the proposed agreement passed the better off overall test. The Full Bench agreed there were some crossovers between the two awards in question, Focus ACT submitted, but ultimately the applicable award was the one that most closely aligned with the work being performed by the employees in question. If this principle were applied to the current dispute, then it follows the Commission should consider the descriptions in the Schedule to the Award to determine which Schedule applied to the relevant employees.
[40] Focus ACT submitted that nowhere in the Award was it mentioned that the objective of a Schedule B employee is to work with clients to create independence. Accordingly, just because employees are working with clients to facilitate a level of independence does not preclude those employees from Schedule E.
[41] It further argued that the classifications contained within the Agreement (which covers the relevant employees) falls within the scope of the definition of 'home care'. With specific reference to Schedule E level 2, it highlighted the following responsibilities applicable to the relevant employees:
Assistance with communication
Accompanying clients on outings
Domestic assistance
Organising appointments
[42] Relevantly, the Agreement states the objective of the ASW positions is:
"to assist people to live as independently as possible and to be part of the community. The type of support is tailored to each individual and may include a combination of domestic, personal and social assistance that is provided in line with the Disability Services Act, the National disability standards and in a way that supports Focus' philosophy of enabling each person to be a valued member of the community"
[43] By comparison to level 2 of Schedule E as an example:
A position in this level has the following characteristics:
An employee in this level performs broad tasks involving the utilisation of a range of developed skills in the provision of domestic assistance and support. Work performed falls within general guidelines but with scope to exercise discretion in the application of established practices and procedures. May assist others in the supervision of work of the same or lower level and is responsible for assuring the quality of work performed.
In these positions, the nature of the work is clearly defined with established procedures well understood or clearly documented. Employees in this level are called upon to use some originality in approach with solutions usually attributable to application of previously encountered procedures and practices.
Indicative but not exclusive tasks include: the provision of personal care, supervising daily hygiene, laying out clothes and assisting in dressing, make beds, tidy rooms, preparation and cooking of meals and assistance with meals, dry cleaning, perform gardening duties, undertake basic repairs, clean, fitting and removal of aids and appliances, monitoring medications, fitting and changing of catheters, assistance with communication, accompanying clients on outings, domestics assistance and organising appointments.
Positions in this level require oral communication skills and where appropriate written skills, with clients, members of the public and other employees.
[44] Focus ACT also highlighted that Level 3 of Schedule E referenced the inclusion of 'diversional therapy programs' as part of the role description.
[45] In response to the Union's reliance on what it said was uncontested evidence of Ms McManus in the ERO case, Focus ACT said that despite several modern award reviews, the Award had never been amended to provide a definition of 'disability' nor had it been amended to include Ms McManus' views.
[46] In response to the Union's reliance on the NDIA price guide, Focus ACT submitted the price guide merely provided examples of fee structures and the NDIA did not have any authority to make determinations of appropriate classifications under an Award. Further, the NDIA does not prescribe which Award classification employees must be engaged under or paid in line with.
[47] Focus ACT noted that in terms of living arrangements, all of its clients had signed a lease and to the extent they shared a house, had full control over whom they shared with. Further, their clients had the right to do as they wished in their own homes. All their clients who did not own their own homes were tenants for the purpose of the Residential Tenancies Act 1997 (ACT), and all clients who did not own their own property pay rent. Further, they all have exclusive possession of their property, which is different to a 'group home'.
[48] In response to the Union's submissions in reliance of the use of 'care plans', Focus ACT highlighted that care plans are only mentioned on 3 occasions in the Award, the first being in Level 2 of Schedule B, and the second in relation to Home Care workers (ie Schedule E) in level 4. The third occasion was in clause 25.8 of the Award which only applies to home care employees and deals with 24 hour care requirement. It argued that given this clause only applied to Home Care employees, then it followed that the provision of services delivered to a client in line with a care plan does not preclude that employee being classified as a home care worker.
[49] In reply to the evidence of Ms Marsh, who said that home care work did not include sleepovers, Focus ACT noted that this was not a provision of the Award, and nowhere in the Award did it specify that the sleepover clause was only applicable to particular streams under the Award. Focus ACT also noted the Agreement contained sleepover provisions.
[50] In terms of the nature of the work performed, Focus ACT provided communication reports which were completed by relevant employees at the end of each shift with a client. The reports provided were for the first two days of each month for the period September 2017 to September 2018. The records were partially redacted for privacy reasons. It also provided an extract of reports made by the four Union witnesses. Focus ACT argued that a review of the reports showed that it was 'reasonably evident that the work being performed does fall within the remit of the home care stream as defined in the ... Award". The majority of tasks, it contended, involved supporting clients in their own homes by cooking, cleaning, assisting with hygiene, assisting with medications and taking clients on outings.
[51] Focus ACT submitted that if the records showed that 95%, for example, of the tasks being performed were equivalent of Home Care work, and 5% was work that exceeded the requirements of the role, the conclusion must be that the relevant employees are home care workers, and accordingly covered by Schedule E of the Award.
[52] Focus ACT noted that it had recently undergone a change of management which brought with it an evolution of strategic organisational goals. The newly implemented methods of operation had resulted in taking on complex clients who may require more specialised care, however historically this was not the case.
[53] In summary, it argued that the work it required the relevant employees to perform most closely matched the work described by Schedule E of the Award and accordingly the ERO does not apply.
[54] Having considered the evidence and submissions made by the parties, I find that the work required to be performed by the relevant employees most closely aligns with Schedule E of the Award.
[55] In terms of the correct approach to determining the appropriate classification, in Davies v Carnachan Family Trust Pty Ltd,[3] Jones J made the following observation:
"12. The courts and industrial tribunals have developed principles to be applied to ascertain whether an employee falls within a particular classification described in an award or agreement. Where the employee performs mixed functions, the approach has been to examine the "major and substantial employment" of the employee or the "principal purpose" or "primary function" of the employee.
13. For example, in Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200, Moore J referred to and applied decision of Sheldon J in Ware v O'Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 where his Honour, applying the "major and substantial employment" test, relevantly observed:
...it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration.
14. The task of the Court in examining the major, substantial or principal aspect of the work performed by the employee will include consideration of the amount of time spent performing particular tasks, but also the circumstances of the employment, and what the employee was employed to do. The question is one of fact, to be determined by reference to the duties actually attaching to the position, rather than its title: City of Wanneroo v Holmes [1989] FCA 553; (1989) 30 IR 362 at 379; Joyce v Christofferson (1990) 26 FCR 261 at 278."
[56] The work that is required to be performed by Focus ACT is that which is set out in its position description and the classification descriptors in the Agreement. It may be that Focus ACT employees go above and beyond what their employer requires of them in the performance of their duties. In order to determine this dispute however, it is the work the employer requires the employees to perform that is the relevant consideration.
[57] The definition of home care sector found in clause 3 of the Award clearly covers the provision of personal care, domestic assistance or home maintenance to a person with a disability in a private residence. There was no evidence contrary to the position put by Focus ACT that all of its clients reside in a private residence. That work is performed 'in a private residence' seems to be a key difference between home care and social and community services as defined in clause 3 of the Award.
[58] I do agree with the submission of Focus ACT, however, that the definitions in clause 3 of the Award are limited. While they provide some guidance in determining whether the relevant employees perform the work covered by Schedule B or E, it is clearly necessary to consider and compare the duties of the relevant employees to the classification descriptors set out in Schedules B and E of the Award.
[59] The purpose of the Accommodation Support Worker role, as set out in the Agreement, is to assist people to live as independently as possible and to be part of the community. The type of support is tailored to each individual and may include a combination of domestic, personal and social assistance. The duties broadly include providing support to clients to enable them to achieve their goals in line with their personal support plan, assisting clients with their personal and health needs, assisting and supporting clients to develop independence by facilitating participation in budgeting, shopping and related tasks of managing their own homes, and undertaking domestic and household duties. Additionally, the relevant employees assist clients to develop and maintain personal, community and social relationships and provide information about community resources and networks.
[60] In my view this aligns most closely level 2 of Schedule E of the Award, which covers an employee who performs broad tasks involving the utilisation of a range of developed skills in the provision of domestic assistance and support. Employees in this level are called upon to use some originality in approach with solutions usually attributable to application of previously encountered procedures and practices. The indicative but not exclusive tasks include the provision of personal care, supervising daily hygiene, laying out clothes and assisting in dressing, make beds, tidy rooms, preparation and cooking of meals and assistance with meals, dry cleaning, perform gardening duties, undertake basic repairs, clean, fitting and removal of aids and appliances, monitoring medications, fitting and changing of catheters, assistance with communication, accompanying clients on outings, domestics assistance and organising appointments.
[61] I accept that the communication reports support the view that the majority of tasks performed by the relevant employees involved supporting clients in their own homes by cooking, cleaning, assisting with hygiene, assisting with medications and taking clients on outings.
[62] I also accept that nowhere in the Award does it provide that the objective of a Schedule B employee is to work with clients to create independence. Accordingly, just because employees are working with clients to facilitate a level of independence does not preclude those employees from Schedule E. Further, the provision of services delivered to a client in line with a care plan does not preclude an employee from Schedule E - so much is clear from clause 25.8 of the Award which references care plans that only applies to Home Care employees.
[63] I do not consider that the applicability or otherwise of the NDIS funding is determinative of the correct award classification. Likewise, I place limited weight on the witness statements of Ms Wright or Ms McManus, which were made in a different context and not for the purpose of determining the correct classification of Focus ACT employees.
[64] Finally, I do not accept the Union's contention that activities such as providing medication and engaging in activities in the community with clients are solely the domain of disability services work. Clearly, these duties are referenced in Schedule E.
[65] While this may be a matter in which reasonable minds may differ, I consider that the major, substantial or principal aspect of the work performed by the relevant employees of Focus ACT is home care work. Accordingly, the ERO does not apply to the relevant employees.
[66] The dispute is so determined.
G South for Australian Municipal, Administrative, Clerical and Services Union.
Printed by authority of the Commonwealth Government Printer
Australian Municipal, Administrative, Clerical and Services Union
Focus ACT [2021] FWC 2391
(1989) 30 IR 362
(1990) 26 FCR 261