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[40]
[2024] FWCFB 382
General information, not legal advice.
Fair Work Commission (Full Bench)
2024-09-20
Original judgment source is linked above.
s.157 - FWC may vary etc. modern awards if necessary to achieve modern awards objective
Gender undervaluation - priority awards review - Commission's own motion - Pharmacy Industry Award 2020 - Health Professionals and Support Services Award 2020 - Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020 - Children's Services Award 2010 - requests for extensions of time to file evidence and submissions - scope of review regarding Medical Technicians, Dental Technicians, Dental Therapists and Health Workers - request to split proceedings.
[1] This statement concerns the following issues which have arisen in these proceedings:
(1) The Australian Council of Trade Unions and its affiliates (ACTU) have requested an extension of time to file their evidence and submissions in matters AM2024/20, AM2024/22 and AM 2024/23. The Private Hospitals[1] also seek an extension of time in matters AM2024/19 and AM2024/20.
(2) In respect of matter AM2024/20, a number of parties[2] have requested clarification of the scope of the proceedings as they concern 'Medical Technicians' under the Health Professionals and Support Services Award 2020 (HPSS Award).
(3) In respect of matters AM2024/20 and AM2024/22, which include consideration of Dental Assistants covered by the HPSS Award and Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020 (Aboriginal and Torres Strait Islander Health Award) respectively, parties have requested clarification as to whether the proceedings also encompass classifications applying to Dental Technician and Dental Therapist classifications.
(4) In respect of matter AM2024/22, the ACTU requests clarification as to whether the Health Worker classifications defined in clause A.2 of the Aboriginal and Torres Strait Islander Health Award are within the scope of the proceeding.
(5) In respect of all matters, the ACTU requests that consideration of issues (2)(b), (2)(c) and (7) identified in our statement published on 24 June 2024[3] should be deferred until after we have decided, or expressed a provisional view about, whether the variation of any particular modern minimum wages is justified by work value reasons. The ACTU also requests in relation to this that:
(i) further evidence concerning the deferred issues should be permitted after the publication of our decision or provisional view; and
(ii) the Commission should consider requests for conduct and publication of statistical analysis to ensure further expert evidence can operate on the basis of some common assumptions.
[3] The ACTU seeks extensions of the time for filing its evidence and submissions as follows:
(a) In matter AM2024/23, the ACTU seeks an extension until 9 October 2024. The reason for this is that it needs additional time to prepare and file expert evidence concerning a skills analysis of work performed by employees who are covered by the Children's Services Award 2010 (CS Award).
(b) In matters AM2024/20 and AM2024/22, the ACTU seeks an extension until 18 October 2024 for the purpose of preparing and filing an expert report concerning 'the regulatory, funding and financial operating framework of the health sector covered by the HPSS Award, including the regulation of health professionals and any significant changes in health service delivery and care models over the last two decades', and a further 'review of the indicia of gender undervaluation in the work covered by the HPSS Award and the [Aboriginal and Torres Strait Islander Health] Award'.
[4] The Private Hospitals seek an extension of time to 18 October 2024 in matters AM2024/19 and AM2024/20 in order to file an expert report concerning 'the operating environment of the private hospital sector with a focus on business viability'.
[5] Australian Business Industrial, the NSW Business Chamber, the Australian Childcare Alliance and Community Care Providers Association (collectively, ABI), whose primary interest is in the CS Award, oppose the grant of an extension to the ACTU in matter AM2024/23. Their primary concern is that the grant of the extension sought would prejudicially truncate the time for the filing of reply material.
[6] Because we consider that we would likely be aided in determining these matters by the provision of the expert evidence foreshadowed by the ACTU and the Private Hospitals, we will grant the extensions sought. As a matter of fairness, the extensions will apply to all parties equally in matters AM2024/19, AM2024/20, AM2024/22 and AM2024/23. In order to avoid the potential prejudice identified by ABI, the time for filing reply material in those four matters shall be extended to 27 November 2024. This will at least ensure, with respect to the CS Award, that the seven weeks originally allowed for the filing of reply material will be maintained. This may have implications for the programming of the dates reserved for hearing, but this may better be assessed once all the 'first round' evidence and submissions have been filed and the scope of the material and the extent of the contested issues in each matter becomes apparent.
[7] Amended directions giving effect to the above are published with this statement.
[10] During the proceedings parties have expressed uncertainty as to which of the indicative roles listed in the classification definitions set out in Appendix A of the HPSS Award relate to Medical Technicians for the purpose of this Review.
[11] Staff of the Commission have prepared a paper, which is published alongside this statement, to assist in addressing this issue. The paper identifies the indicative roles in the HPSS Award classification structure which map to the occupation of 'Medical Technician' as discussed in the Stage 1 Report.
[12] On the basis of the conclusion in that paper, we determine that the following classifications and indicative roles in Schedule A of the HPSS Award are included in the priority occupation of 'Medical Technician':
Dental Technicians and Dental Therapists - HPSS Award and Aboriginal and Torres Strait Island Health Award
[14] In the context of the above, an issue has been raised as to whether the proceedings encompass:
the indicative role of 'Dental Technician' in the classification of Support Services employee - level 4 in the HPSS Award;
the indicative 'Health Professional' role of 'Dental Therapist' in Schedule B of the HPSS Award;
and the classifications of Dental Therapist Grade 1 and Dental Therapist Grade 2 in clauses A.4.6 and A.4.7 respectively of the Aboriginal and Torres Strait Islander Health Award.
[15] The occupation of Dental Technician bears the ANZSCO code of 411213 and is separate to that of Dental Assistant. This occupation was not considered in the Stage 1 report or the AWR 2024 decision and is not within the scope of the proceedings.
Health Workers - Aboriginal and Torres Strait Islander Health Award
[17] In our 24 June 2024 statement, we said that the list of issues we had determined was 'not intended to constrain any party from adducing evidence and making submissions about any other matter relevant to the subject matters of the proceedings'. Arising from this proposition, the ACTU requests clarification concerning whether this permits the Health Worker classifications set out in clause A.2 of the Aboriginal and Torres Strait Islander Health Award to be the subject of evidence and submissions in matter AM2024/22 because there is a question about whether these classifications properly acknowledge and value Aboriginal and/or Torres Strait Islander knowledge and cultural skills. The ACTU also submits that '[a] proper and appropriate assessment of the work value of the exercise of gender-related Aboriginal and Torres Strait Islander cultural skills in relation to dental assistants is likely inextricable, or at least difficult to separate, from a broader assessment of the gender-related Aboriginal and Torres Strait Islander cultural skills exercised across all classifications within the Award generally'.
[18] The Health Worker classifications are not within the scope of matter AM2024/22, having not been considered in either the Stage 1 Report or the AWR 2024 decision. They are not professional classifications since they do not require a degree as a prerequisite. They therefore do not constitute part of the subject matter of AM2024/22.
[19] It may be accepted that our determinations in respect of any of the classifications the subject of the proceedings may have consequential effects, in terms of relativities and the like, for other award classifications that are not the subject of the proceedings. We anticipate that any such consequential effects may be raised in parties' evidence and proceedings. However, the proceedings will not result in the adjustment of any non-subject classifications. That does not, of course, prevent any party with standing to do so making its own application for variation of the classifications and minimum rates of Health Workers under the Aboriginal and Torres Strait Islander Health Award.
[20] The issues which the ACTU wishes to have deferred until after the publication of an initial decision or provisional view are:
Would variations to the minimum wage rates prescribed for the classifications [the subject of the proceedings:
(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?
[21] In support of this proposal, the ACTU submits:
Given the nature of the proceeding as an own-motion proceeding, it may be premature for the parties to address these issues comprehensively in evidence and submissions until the Commission has reached a view (or expressed a preliminary view) about what (if any) variations it considers are justified by work value reasons.
Such a view (or preliminary view) would also assist the parties to properly instruct an expert to provide a report in the nature of the Fourth Report (eg, addressing the question of the impact on employment, business, and the national economy (if any) of any proposed wage adjustment), or for other interested parties to conduct a similar exercise.
[22] We consider that it would be premature to split the proceedings in the way proposed by the ACTU, particularly given that the scope of the issues in dispute in each matter is not yet apparent. If, for example, it is agreed or not in dispute in respect of any of the subject award classifications that the minimum rate of pay has been subject to gender undervaluation such that there are work value reasons justifying an adjustment, then the issues concerning the modern awards objective, the minimum rates objective and the timing and phasing-in of any pay increases may readily be addressed during and following the December hearings.
[23] The ACTU also submits that, in preparation of a contemplated expert report addressing the questions of the impact of proposed pay increases on employment, business, and the national economy, it would be assisted by 'a combination of Census data and the microdata from the 2023 ABS Employee Earnings and Hours Survey... as recently utilised by the Commission in its data profile relating to the Pharmacy Industry Award.'
[24] As has previously been indicated, the Commission is prepared to undertake research as to particular matters relevant to the proceedings if there is a broad consensus amongst the parties that we should do so. We invite the ACTU to explore with the other parties whether they can reach a consensus that the Commission should undertake research concerning the matter it identifies. A member of the Commission will be made available to assist with such discussions if the parties consider that this would be of utility.
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