Gender undervaluation - priority awards review [2025] FWCFB 146 | Case summary

[2] On 17 June 2024, the Australian Services Union (ASU), the Australian Workers' Union (AWU), the Health Services Union (HSU) and the United Workers' Union (UWU) filed an application (joint union application) that sought a variation to the SCHADS Award, which would affect the rates of pay of home care disability employees (matter AM2024/25). On 24 June 2024, we decided that the joint union application should be joined with matter AM2024/21 and heard as part of the Review proceedings.

[3] On 8 July 2024, the ASU lodged an application (ASU application) seeking variations to the classifications and rates of pay in the SCHADS Award (matter AM2024/27). The ASU sought that this application be dealt with in three phases: phases 1 and 2 would involve interim variations which would operate pending the hearing and determination of phase 3, which would involve a wider consideration of the classifications and rates of pay in the SCHADS Award based on changes to work value said to have occurred since 2012. On 12 August 2024, we decided that phases 1 and 2 would be dealt with together with the Review, and phase 3 would be stood over generally pending the hearing and determination of the Review proceedings.

[4] The Review, the joint union application and phases 1 and 2 of the ASU application were the subject of a hearing before us over three weeks in December 2024. On 16 April 2025, we issued a decision ( [2025] FWCFB 74) in which we made findings of gender-based undervaluation in respect of classifications in each of the five awards under consideration. In respect of the Pharmacy Award, we proceeded to vary that award in order to remedy the identified gender-based undervaluation. Matter AM2024/19 is therefore now completed. As for the other awards, we expressed provisional views as to how the awards might be varied to remedy gender-based undervaluation. These provisional views outlined, to varying degrees of specificity, new classification structures and rates of pay for that purpose. In respect of the SCHADS Award, we dismissed the joint union application and phases 1 and 2 of the ASU application. In respect of the family day care sector, we expressed the provisional view that, to the extent that some of the work connected with this sector is covered by the SCHADS Award, that coverage should be moved to the CS Award. We generally left open the question of operative date and phasing-in of wage increases except that, in respect of the CS Award, we expressed a provisional view that the increases should be phased in over a five-year period commencing on 1 August 2025.

[5] The decision concluded by indicating that, as the next step, conferences would be conducted with interested parties to ascertain the nature and scope of any issues that interested parties might wish to raise in response to the provisional views. Finally, we said that, based on parties' responses at the conferences, we would then program the Review for further hearing to finalise the variations to the remaining four awards necessary to rectify the gender-based undervaluation we have found to have occurred.

[6] Conferences have now been conducted with respect to each of the remaining awards, and with the benefit of those conferences we now have an understanding of the issues of concern to the parties. In some cases, where the issues identified have been confined and a measure of consensus has been reached, the Commission has prepared a draft award variation determination in order to focus discussion, or has indicated that it will shortly do so. In other cases, this has not been done.

[7] It is now necessary to program the Review for further hearing to finalise the award variations to be made. This further hearing will provide interested parties an opportunity to be heard in relation to the provisional views we have expressed, including to advance proposals as to how those provisional views might best be given effect or proposals in the alternative to those provisional views to remedy the identified gender-based undervaluation, and to make submissions about operative date and phasing-in.

[8] For the purpose of programming the Review for final hearing, the presiding member conducted a directions hearing on 15 July 2025. The directions hearing proceeded on the basis of draft directions to facilitate a hearing being conducted in the weeks beginning 20 and 27 October 2025. A number of issues concerning the draft directions were raised during this hearing. While not addressing every issue raised, we deal with the five main issues raised below.

[9] First, while there were a range of availability issues raised, the main problem of availability (both in terms of legal representatives and witnesses) concerned the health professional and pathology collector classifications in the HPSS Award. To accommodate this, we will set further hearing dates for 10-14 November and 19-21 November 2025. Deputy President Slevin will be unable to sit as part of the Panel during these dates but he will read the transcript and participate in the Panel's decision-making.

[10] Second, a number of parties raised the question of whether there would be a draft determination published by the Commission in respect of the health professional classifications in the HPSS Award. We have decided that it would not be useful to publish a draft determination prior to the further hearing to be conducted, given the wide range of issues which appear to be in contest and the lack of any emergent consensus. The directions will facilitate the parties filing their own draft determinations, either to give effect to the provisional views or as an alternative to them, for our consideration.

[11] Third, while the conferences concerning the CS Award have resulted in a wide range of consensus about most matters, the provisional view that any coverage of the family day care sector under the SCHADS Award be moved to the CS Award has emerged as an issue of significance. The Panel received very little evidence about this sector during the December 2024 hearings. A number of interested parties from the family day care sector attended the conferences concerning the CS Award (but not the directions hearing) and raised various matters of concern. It appears that, apart from this issue, the only matter in contest (subject to any submissions which the Commonwealth may make about funding) concerns the operative date for an initial wage increase as the first step in a five-year phasing-in period. This is a matter which may be able to be determined on the basis of written submissions only. Accordingly, we have decided to defer, for the time being, further consideration of the provisional view concerning award coverage of the family day care centre. However, that will require, at least for an interim period, consideration of whether any family day care sector employees currently covered by the SCHADS Award should be accommodated in any new unified classification structure to be established for that award. We will arrange for the publication of a draft translation table for family day care employees for consideration by interested parties.

[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.

[17] Fifth, the Australian Industry Group proposed, as we understand it, a two-stage process whereby the form of the variations for each award would be finalised first and then the implementation issues including operative date and phasing-in would be dealt with having regard to issues such government funding and capacity to pay. We do not consider that this would be an efficient way to finalise the Review. The provisional views we have expressed concerning each award contain sufficient information about wage rates and classifications to allow for their cost impact to be assessed and proposals for operative date and phasing to be developed. Parties may develop and cost any proposed modifications to the provisional views or alternative proposals they may choose to advance, and will have the opportunity to respond to any such proposals advanced by other parties.

[18] Consistent with our conclusions above, we will list the further hearing for the review as follows:

Gender undervaluation - priority awards review [2025] FWCFB 146 (18 July 2025)

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

Gender undervaluation - priority awards review [2025] FWCFB 146 (18 July 2025)

Legislation Cited (1)