Fair Work Act 2009

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

(AM2024/19, AM2024/20, AM2024/21, AM2024/22, AM2024/23)

Social, Community, Home Care and Disability Services Industry Award 2010 - application for variation

Gender-based undervaluation - priority awards - Commission's own motion - Children's Services Award 2010 - Social, Community, Home Care and Disability Services Industry Award 2010 -Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020 - Health Professionals and Support Services Award 2020 - Pharmacy Industry Award 2020 - issues to be considered - directions.

[1] On 7 June 2024, we published a statement[1] in matters AM2024/19, AM2024/20, AM2024/21, AM2024/22, AM2024/23 (gender undervaluation matters) in which we described the background to the matters and expressed provisional views concerning the issues to be addressed and the programming of the matters. Pursuant to that statement, on 18 June 2024 the presiding member conducted a hearing at which interested parties were given an opportunity to respond to the provisional views in the statement and to propose any modifications.

[2] On 17 June 2024, an application (AM2024/25) was filed by the Australian Services Union, the Australian Workers' Union, the Health Services Union and the United Workers' Union to vary the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award). The unions' application seeks to vary the definition of 'social and community services sector' in the SCHADS Award to clarify that employees who provide services funded by the National Disability Insurance Scheme will be engaged under Schedule B of the award. This is intended to resolve any doubt as to whether such employees are to be paid in accordance with the rates of pay in Schedule B (to which an equal remuneration order[2] providing for an additional pay increment of 23 per cent applies) or the rates of pay in Schedule E (to which the equal remuneration order does not apply). At the request of the applicants, this matter was listed for a directions hearing concurrent with the gender undervaluation matters on 18 June 2024.

[3] At the hearing on 18 June 2024, a number of specific matters were raised by parties concerning the drafting of the list of issues and the dates upon which certain events were to occur in the programming timetable. Apart from two more substantial matters which we discuss below, it is not necessary to detail these; it is sufficient to say that they have been accommodated in the list of issues and directions which we issue as part of this statement.

[4] The first of the more substantial matters was the proposal advanced by the Australian Council of Trades Unions (ACTU) as follows:

Subject to the views of the Expert Panel, the ACTU considers there is merit in the use of an agreed methodology of assessment of the work value of the subject occupations. This would have the benefit of avoiding time and cost associated with the parties obtaining competing expert evidence on (at least) the assessment of invisible skills, as well as producing an assessment method which can be deployed in subsequent proceedings.

If the Commission is receptive to this proposal, the ACTU proposes either that the Commission prepare a draft specification of a 'spotlight' tool and methodology for the assessment of gender-based undervaluation of work, which would be fit for the purpose of these and subsequent proceedings, or that the development of this mechanism be included in the matters for conference, and the time for the conferences be extended accordingly.[3]

[5] It was explained by counsel for the ACTU that this course would 'avoid the expert panel being lumbered with multiple expert reports that address different questions and don't assist in the resolution of - as much as they could'.[4] We presume that the development of this 'spotlight tool and methodology' would require the engagement of an expert for that purpose either by the parties jointly or by the Commission.

[6] Other parties appearing at the 18 June 2024 hearing were generally either agnostic as to the ACTU's proposal or had not had the opportunity to obtain instructions and consider their position.

[7] We are prepared to accommodate the course proposed by the ACTU, including by way of the Commission engaging an independent expert if necessary, if a consensus about this course amongst the parties intending to participate in the proceedings can be achieved. We do not consider that the proposal is necessarily relevant to all of the award classifications involved in the gender undervaluation proceedings, particularly those 'professional' classifications requiring an undergraduate degree or higher, but we do not need to express a final view about this issue for the time being. As a first step, we will arrange a conference of parties to ascertain whether a measure of consensus as to the ACTU's proposal can be reached.

[8] The second matter concerned the application by unions to vary the SCHADS Award. It was submitted on behalf of the applicants that their application should be heard as an initial step during the dates set aside for the hearing of the gender undervaluation matters in December 2024, and that the gender undervaluation issues arising in relation to the SCHADS Award (AM2024/21) should be deferred, and not listed for hearing, until their application was determined. This submission is rejected. It seeks to defeat the prioritisation assigned in the Annual Wage Review 2023-24 decision[5] to the rectification of potential gender undervaluation in the SCHADS Award and disregards that the holistic review of the classification structures in the award contemplated in that decision is capable of resolving the problem sought to be addressed by the unions' application. We consider that the appropriate course is to join matter AM2024/25 with the gender undervaluation matters and hear all matters together.

[9] Our earlier statement contemplated a conference process concerning each award to ascertain any agreed matters, to be conducted in the period 8-19 July 2024. As we have earlier stated, we will now conduct an additional conference concerning the ACTU's proposal for the development of a 'spotlight tool and methodology', and we consider that this should have priority since it may affect how parties approach the consideration of individual awards. Having regard to various availability issues which were identified by parties during the 18 June 2024 hearing, we will expand the time period in which the conferences may be conducted to the whole of July. Individual members of the panel will conduct the conferences as follows:

• ACTU proposal and the joint commissioning of experts - Deputy President Slevin.

• AM2024/23: Children's Services Award 2010 - Vice President Asbury.

• AM/2024/21 and AM2024/25: Social, Community, Home Care and Disability Services Industry Award 2010 - Deputy President O'Neill.

• AM2024/20 and AM2024/22: Health Professionals and Support Services Award 2020 and Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020 - Deputy President Grayson.

• AM2024/19: Pharmacy Industry Award 2020 - Justice Hatcher, President.

[10] Each member's chambers will be the contact point for each conference, and arrangements will be made for the listing of the conferences taking into account the availability of relevant parties.

[11] Having regard to the submissions made at the 18 June 2024 hearing, the list of issues to be considered will be the following:

(1) Having regard to the findings contained in the Stage 1[6] and Stage 2[7] gender pay equity research reports, has the work to which the classifications apply been historically undervalued because of assumptions based on gender?

(2) Would variations to the minimum wage rates prescribed for the classifications:

(a) be justified by work value reasons within the meaning of s 157(2A) of the Fair Work Act 2009 (Cth) (FW Act)?

(b) be necessary to achieve the modern awards objective in s 134(1) of the FW Act?

(c) be necessary to achieve the minimum wages objective in s 284(1) of the FW Act?

(3) Does the work of employees under any of the classifications involve the exercise of 'invisible' skills (including gender-related indigenous cultural skills) and/or caring work of the nature described in paragraphs [156(1)] and [172]-[173] and elsewhere in the Stage 3 Aged Care decision?[8]

(4) Is the benchmark rate identified in paragraph [170] of the Stage 3 Aged Care decision appropriate to apply to any of the classifications for which a Certificate III qualification or equivalent is required?

(5) Is the benchmark rate identified in paragraph [204] of the Stage 3 Aged Care decision appropriate to apply to any of the classifications for which an undergraduate degree qualification or equivalent is required?

(6) To the extent that any adjustment to the existing classification structure in any of the awards is required, what are appropriate terms (including classification descriptors and minimum wage rates) for a new or modified classification structure?

(7) To the extent that any increases to the minimum rates for any classifications are justified by work value reasons in order to remedy gender undervaluation, what is an appropriate implementation timetable for such increases having regard to funding and related issues?

(8) Should the equal remuneration order (PR525485) applicable to social and community service employees under the Social, Community, Home Care and Disability Services Industry Award 2010 be revoked consequent upon appropriate variations to the classification structure and minimum wage rates in that award?

[12] The above list of issues is not intended to constrain any party from adducing evidence and making submissions about any other matter relevant to the subject matters of the proceedings.

[13] The following orders and directions are made:

(1) Matters AM2024/19, AM2024/20, AM2024/21, AM2024/22, AM2024/23 and AM2024/25 are joined.

(2) Interested parties are to lodge witness statements, other evidentiary material, submissions, and any agreed statements of fact concerning the identified issues and any other relevant matters by 5:00 pm (AEST) on Friday, 27 September 2024.

(3) Interested parties are to lodge any witness statements, other evidentiary material and submissions in reply by 5:00 pm (AEDT) on Friday, 15 November 2024.

(4) The matters are listed for a directions hearing before the presiding member at 9:30 am (AEDT) on Tuesday, 19 November 2024.

(5) 2-6, 9-13 and 16-20 December 2024 are reserved for hearing.

K Burke, counsel, and T Clarke for the Australian Council of Trade Unions.

A Rafter for Australian Business Industrial, Business NSW, Australian Childcare Alliance and Aged & Community Care Providers Association.

M Thomas and B Hayes for Dental Assistants Professional Association Inc.

S Wellard, solicitor and S Harris for The Pharmacy Guild of Australia.

S Kilpatrick and M Dooley for Victorian Aboriginal Community Controlled Health Organisation Inc.

[1] [2024] FWCFB 280.

[3] ACTU written submission, 18 June 2024 [5]-[6].

[4] Transcript, 18 June 2024 PN65.

[5] [2024] FWCFB 3500.

[6] Natasha Cortis et al, UNSW Social Policy Research Centre_, Gender-based Occupational Segregation: A National Data Profile_ (Final Report, 6 November 2023).

[7] Fair Work Commission, Stage 2 report - Gender pay equity research - Annual Wage Review 2023-24 (Report, 4 April 2024).

[8] Aged Care Award 2010; Nurses Award 2020; Social, Community, Home Care and Disability Services Industry Award 2010 [2024] FWCFB 150.

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