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

Gender-based undervaluation - priority awards review - Social, Community, Home Care and Disability Services Industry Award 2010

Social, Community, Home Care and Disability Services Industry Award 2010 - application for variation by Australian Municipal, Administrative, Clerical and Services Union

Gender undervaluation - Priority awards review - Application by the Australian Municipal, Administrative, Clerical and Services Union to vary the Social, Community, Home Care and Disability Services Award 2010 on work value grounds - Application to vacate directions and hearing dates before Expert Panel.

• [1] There are, relevantly for present purposes, two proceedings before the Commission in relation to the classifications and rates of pay in the Social, Community, Home Care and Disability Services Award 2010 (the SCHADS Award). In AM2024/21, the Commission initiated a review of the SCHADS Award to consider whether identified classifications have been the subject of gender-based undervaluation. In AM2024/27, the Australian Municipal, Administrative, Clerical and Services Union (the ASU) seeks variation to the classifications and rates of pay in the SCHADS Award broadly on work value grounds.

• [2] An Expert Panel was constituted for the purposes of conducting the review and considering the application made by the ASU. The substance of the ASU's application in AM2024/27 was stood over generally pending review initiated by the Commission. On 16 April 2025, the Expert Panel handed down a decision in which it made findings of gender-based undervaluation in respect of certain classifications in a number of awards, including the SCHADS Award: Gender-based undervaluation - priority awards review [2025] FWCFB 74. In relation to the SCHADS Award, the Expert Panel set out its provisional views as to how the award might be varied to address gender-based undervaluation.

• [3] Following the Expert Panel's decision, conferences were conducted by the Commission to ascertain the nature and scope of issues that the parties wished to raise with respect to the provisional views of the Expert Panel. The President of the Commission conducted a case management hearing in relation to the various proceedings on 15 July 2025 and the Expert Panel subsequently made a Statement on 18 July 2025. The Statement records that the ASU proposed that the remaining issues in its application in AM2024/27 be heard together with the finalisation of the Commission initiated review. The Expert Panel rejected that approach. The Expert Panel observed:

[12] Fourth, the ASU has proposed that the third phase of the ASU application (matter AM2024/27) should be heard together with the finalisation of the Review as it concerns the SCHADS Award (matter AM2024/21). The ASU proposes directions which, among other things, would require it to file its draft determination, evidence and submissions for matter AM2024/27 by 5 December 2025, have employer interests respond to this by 13 February 2026, and then have the matter set down for a 10-day hearing in March 2026.

[13] If this proposal were remotely realistic, we would be inclined to adopt it since it would allow all outstanding issues concerning the classification structure and rates of pay in the SCHADS Award to be dealt with and determined in a single hearing and decision. But it is not. In its initiating application filed on 8 July 2024, the ASU did not specify what variations to the SCHADS Award it sought in the third phase of the application. A year later, it has still not done that. The ASU submitted that the next step in the process it contemplates is that the 'Commonwealth Consultation Project', which it describes as 'a full scale industry review to ... build [a] modern fit-for-purpose classification structure and set of rates that both corrects gender based undervaluation ... but also reflect[s] work value and structural change across the industry', would first develop a proposal for variation of the SCHADS Award, and then that proposal would 'facilitat[e] the ASU but also other industry parties in putting forward a position to the Commission'.

[14] The Commission has received no official advice concerning the 'Commonwealth Consultation Project', but it appears to be a proposal for a Commonwealth-funded industry consultation process to review the classification structure in the SCHADS Award. As we understand it, this is intended to occur independent of any Commission proceeding or process. Leaving aside the proposed usurpation of the Commission's statutory functions concerning the making and variation of modern awards, it is highly improbable that this project, which does not appear to have yet commenced, will be completed within a timescale consistent with the ASU's proposed directions. Furthermore, the time allowed for employer interests to respond to the ASU's putative case, which is contemplated to be a work value case of major dimensions, is similarly unworkable, noting that it encompasses the Christmas/New Year period.

[15] A more realistic assessment is that the ASU's case might be in a position to be heard at the end of 2026 or early 2027. It is not appropriate that the finalisation of the Review in respect of the SCHADS Award be deferred until then. In our 16 April 2025 decision, we found that the SCHADS Award rates of pay for social and community services employees, crisis accommodation employees and home care disability employees are subject to gender-based undervaluation. We also found, consistent with the ASU's own case, that the classification structures in the SCHADS Award for these employees is not fit for purpose and should be replaced by a single new classification structure which rectifies gender-based undervaluation and is simple and easy to understand. Consistent with the gender equality objectives of the Fair Work Act 2009 (Cth), these matters require remediation in a timely way.

[16] Accordingly, we propose to finalise the Review in respect of the SCHADS Award first. The ASU application (AM2024/27) will be stood over until matter AM2024/21 is heard and determined to finality. Consistent with what we have earlier stated, the ASU will have the opportunity in the remaining stage of the Review to engage with the provisional view we have expressed concerning a new classification structure and wage rates for the SCHADS Award including by proposing variations to the structure or proposing an alternative structure.

• [4] Directions were then issued reserving dates for hearing in relation to outstanding issues concerning the SCHADS Award from 27 to 31 October 2025 and directing that interested parties file submissions, any draft determination and any evidence relied upon by 12 September 2025 and any submissions or evidence in reply be filed by 15 October 2025.

• [5] A large volume of material has been filed by interested parties in response to the first direction. The ASU has filed submissions seeking wholesale changes to, or the abandonment of, the Expert Panel's provisional view and suggesting its own alternative classification structure as well as 78 witness statements. It says it would have filed further evidence if it had more time in which to do so. The Ai Group and Australian Business Industrial, Aged and Community Care Providers Association, NSW Business Chamber and National Disability Services have also filed substantial submissions and some evidence. Submissions have also been filed by the Commonwealth and approximately 80 employers or peak bodies.

• [6] On 19 September 2025, the ASU applied for changes to the directions. The ASU seeks that the current directions be vacated, including the hearing listed to commence on 27 October 2025. In place of the current directions, the ASU proposes:

1. The current directions are vacated, including the hearing listed to commence on 27 October 2025.
2. Both proceedings are listed for conference before a member of the Expert Panel commencing on 27 October 2025.
3. The ASU is to provide to the Commission and interested parties a proposal setting out both its proposed amendments to the provisional view and its additional work value based changes by 20 October 2025, for the purpose of discussion in conference.
4. The ASU is to file an amended application to vary the Award, reflecting its proposed changes including any work value claim, by 7 November 2025.
5. By 5 December;
   1. interested parties are to file and serve any material in reply in relation to materials filed in respect of the provisional views;

1. the ASU is additionally to file and serve any additional material in respect of AM2024/27.

1. The matter is listed for case management on 12 December 2025, for the purpose of:
   1. determining if any discrete matters in AM2024/21 can be dealt with to finality; and

1. arranging site inspections to be conducted in February 2026;

1. By 27 February 2026, interested parties are to file and serve any material in response to the AM2024/27;
2. By 27 March 2025 the ASU is to file and serve any material in reply in respect of AM2024/27;
3. The proceedings are listed for hearing for a period of [insert] commencing on [insert].

• [7] The ASU submits that the volume and nature of the material filed warrants reconsideration of the current timetable. It submits that the current reply timetable does not provide enough time for it to properly review the employer submissions and provide a response and in light of the amount of material and the level of disputation, five days will be inadequate to hear the matter. It further submits that the ASU has now put forward an alternative proposed classification structure which should be subject of discussion between interested parties with the assistance of the Commission.

• [8] I am not a member of the Expert Panel. The President, who is a member of the Expert Panel, is presently on leave. The President, as the presiding member of the Expert Panel, is responsible for the conduct of the proceedings before the Expert Panel. I am dealing with the ASU's application in the President's absence and pursuant to a delegation to me of the functions and powers of the President. In dealing with the matter, I have consulted other available members of the Expert Panel in relation to the ASU's application.

• [9] I am not satisfied it is appropriate, at this time at least, to vacate the present directions or the dates reserved for hearing from 27 to 31 October 2025. The ASU accepts that the directions it now seeks are, in substance, the same as the proposal it advanced in July which was rejected by the Expert Panel. The Expert Panel then held the view that the proposal was not "remotely realistic". The ASU submits that circumstances have changed as a result of the volume and nature of the material that has been filed by the parties, its view that it is not practical for the hearing to be concluded in the dates set aside in October and given that the ASU has now prepared its own alternative classification proposal.

• [10] I do not underestimate the amount of work which is involved in preparation for these important proceedings. On the information presently before me, however, I am not satisfied that the ASU does not have sufficient time to respond to the submissions and evidence filed by peak bodies and employers. Although a large number of submissions have been filed, only four witness statements have been filed by employer groups. Those witness statements, in a direct sense at least, concern the operations of a small number of employers. Many of the submissions are relatively short and are filed in support of submissions made by industry bodies. There will be significant work involved in reviewing the submissions, but it does not appear to me that this task is unachievable in the time which is available.

• [11] The volume of material filed by the ASU does give rise to concern as to whether the hearing concerning the provisional views of the Expert Panel can be concluded in five hearing days. However, the extent of factual dispute in relation to the content of the witness statements filed by the ASU is presently unclear. Given the use which I apprehend is sought to be made of the evidence by the ASU, it may be that extensive cross-examination will not be necessary. The representatives of the Ai Group and Australian Business Industrial suggested that their present expectation is that cross-examination will be relatively limited. The extent of the reply material is not now known. In the circumstances, I am not positively satisfied that the hearing cannot be conducted appropriately in the period set aside in October or that vacating the directions and the hearing dates is necessary.

• [12] The better course is to maintain the present directions and retain the hearing dates listed from 27 to 31 October 2025. The proceedings are already listed for further case management conference on 13 October 2025. By that time, the extent of the reply material and the scope of any factual disputes and of cross-examination will likely be much clearer. Interested parties can then make submissions as to whether any adjustments should be made to the timetable or arrangements for the hearing of the proceedings in light of the issues which the ASU has raised in its application.

L Saunders, of counsel, instructed by K Thomas for the ASU.

S Blewett, of counsel, instructed by A van Gent for the UWU and HSU.

C Dowsett, of counsel, instructed by S Reeves for the Commonwealth.

K Scott for Australian Business Industrial, Aged and Community Care Providers Association, NSW Business Chamber and National Disability Services.

Printed by authority of the Commonwealth Government Printer