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 and AM2024/23)

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

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 - proposal for engagement of an independent expert - application in matter AM2024/27.

[1] This statement concerns two matters which have arisen in connection with the gender undervaluation proceedings (matters AM2024/19, AM2024/20, AM2024/21, AM2024/22 and AM2024/23) which the Commission initiated on its own initiative on 7 June 2024 and which are listed for hearing on 2-6, 9-13 and 16-20 December 2024. Matter AM2024/25, which is an application by a number of unions to vary the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award), has been joined with the gender undervaluation proceedings and is the subject of common directions and hearing dates.

(1) Proposal for engagement of an independent expert

[2] In a statement published on 24 June 2024,[1] we dealt with a number of matters raised by the parties at the hearing on 18 June 2024. One of the matters raised was a proposal by the Australian Council of Trade Unions (ACTU) that an agreed methodology for the assessment of gender-based undervaluation of work be developed for application in these and subsequent proceedings. The ACTU explained that this course may avoid multiple expert reports being tendered in the proceedings.[2] Other parties appearing at the 18 June 2024 hearing had no position on the proposal.

[3] We indicated in our 24 June 2024[3] statement that we were 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 could be reached amongst the parties intending to participate in the proceedings.

[4] In accordance with our statement, Deputy President Slevin convened a conference of parties on 19 July 2024 to ascertain whether a measure of consensus on the ACTU's proposal could be reached. Written submissions were also filed prior to the conference. It is clear from the submissions provided and the views expressed at the conference that there is no consensus. Accordingly, we have decided not to adopt the ACTU's proposal.

[5] In its written submissions the ACTU suggested that the Commission might develop a methodology on its own initiative, including giving the parties an opportunity to be consulted and provide comment on any such proposal. As there was no consensus amongst the parties on the development of an agreed methodology we do not consider it appropriate to develop a methodology on our own initiative.

[6] Consequently, parties who wish to adduce expert evidence in the proceedings will be required to do so in accordance with directions (2) and (3) in our 24 June 2024 statement. Those directions require parties to lodge evidentiary material, which includes expert reports, by 5:00 pm (AEST) on Friday, 27 September 2024, and reply material by 5:00 pm (AEST) on Friday, 15 November 2024.

[7] The ACTU expressed concern that it may not be possible to provide expert reports for all relevant occupations in the timeframes set by the directions. No proposal was put to amend the current directions. We note that our directions included liberty to apply. Should any party seek an extension of time for the filing of expert evidence they may do so by making an application to amend the directions.

[8] We direct that:

1. Any application to amend the directions of 24 June 2024 to accommodate a longer time frame for expert evidence be made by 5:00 pm (AEST) on Friday, 13 September 2024.

2. Any response to such application be made by 5:00 pm (AEST) on Tuesday, 17 September 2024.

3. The application will be dealt with on the papers.

[9] On 8 July 2024, the Australian Municipal, Administrative, Clerical and Services Union (ASU) lodged a further application for variation of the SCHADS Award. The application, while not specifying the terms of the variations sought, outlines in general terms the variations sought as follows:

1. The Applicant seeks to vary the [SCHADS Award] to incorporate the Social and Community Services Equal Remuneration Order 2012 ('ERO') (PR25485) and ... significantly vary the classification structure that applies to employees covered by Schedule B - Social and Community Services Employees and Schedule E - Crisis Accommodation Employees and Schedule D - Family Day Care Employees.

2. The Applicant proposes that the matter be dealt with in three phases.

3. In the first phase, Clause 15 should be varied immediately to incorporate the ERO wage rates. The ERO should be revoked at the same time Award wages are varied.

4. In the second phase, Schedules B and C should be varied on an interim basis to incorporate indicative job titles for each level of the classification structure. A draft determination will be filed shortly.

5. In the third phase, the Applicant will seek variations to address undervaluation caused by work value changes in the industry since 2012 and to simplify the classification structure.

6. The Applicant will refine its claims for the third phase as the matter proceeds, following conciliation with interested parties.

[10] It is apparent that the subject matter of at least the first two 'phases' of the ASU's application substantially overlaps with the gender undervaluation proceedings. In relation to the first two phases, the statement which we published on 24 June 2024[4] makes it clear that the issues to be considered in the gender undervaluation proceedings include, relevant to the SCHADS Award:

• whether there should be an adjustment to the existing classification structure and, if so, the appropriate terms (including classification descriptors and minimum wage rates) for a new or modified classification structure; and

• whether the ERO should be revoked consequent upon appropriate variations to the classification structure and minimum wage rates in the SCHADS Award.

[11] It should be noted that the identification of the above issues encompasses the broad review of the classification structure of the SCHADS Award intended by the Expert Panel in the Annual Wage Review 2023-24[5] decision as follows:

[119] Indeed, we consider that a broader review of all classifications in the SCHADS Award is timely. As the Stage 2 report demonstrates, the development of the SCHADS Award during the award modernisation process involved an amalgam of provisions from various pre-modern and State awards covering various different parts of the social services sector. This resulted in the SCHADS Award containing three different classification streams, which has itself caused difficulty in the application of the award at the workplace level. This has been exacerbated by the operation of the ERO rates upon one of the streams and now the application of the aged care wage increases on part of one of the other streams. In our view, consideration needs to be given to whether the classifications in the SCHADS Award can be integrated, or at least aligned, on the basis that the whole of the coverage of the award is female-dominated and is likely to involve the exercise of 'invisible' caring skills. This would require consideration as to whether the ERO rates should be incorporated into the SCHADS Award and the ERO itself revoked.

[12] The 'third phase' of the ASU's application, however, raises new issues which go beyond the intended scope of the gender undervaluation proceedings.

[13] The ASU's application was listed for directions on 12 July 2024. On 15 July 2024, directions were issued joining the ASU's application with matters AM2024/21 and AM 2024/25, and these three matters were listed for conference before Deputy President O'Neill on 23 and 25 July 2024. The Deputy President conducted a further conference on 5 August 2024. Among other things, the disposition and programming of the ASU's application was discussed at these conferences.

[14] Taking into account what was discussed at these conferences, we have determined as follows:

(A) The first and second 'phases' of the ASU's application will be dealt with at the hearing listed on 2-6, 9-13 and 16-20 December 2024, given their overlap with the issues to be determined in that hearing. The directions made in our statement of 24 June 2024[6] at [13] will apply.

(B) The 'third phase' of the ASU's application will be stood over generally pending the hearing and determination of the gender undervaluation proceedings and matter AM2024/25. We decline to make any directions as to the filing of evidence and submissions concerning this aspect of the ASU's application at this stage since we consider that this would constitute an overly onerous and unfair imposition upon parties intending to participate in the gender undervaluation proceedings.

[1] [2024] FWCFB 291.

[2] Transcript, 18 June 2024 PN65.

[3] [2024] FWCFB 291 [7].

[4] [2024] FWCFB 291 [8], [11].

[5] [2024] FWCFB 3500.

[6] [2024] FWCFB 291 [13].

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