The applicant was employed by the first respondent as a disability support worker between May 2023 and March 2025. The second respondent is the director of the first respondent.
The applicant brings a money claim, asserting that she was wrongly classified under the award and therefore underpaid for the duration of her employment.
There is no dispute that the applicable award is the Social Community Homecare and Disability Services Industry Award (SCHADS Award).
[2]
The employment of the applicant was governed by a contract of employment[1] and subsequently signed position description document[2].
The contract of employment describes the position as "disability support worker" at a pay rate "level one, pay point 2: $31.60 base rate exclusive of superannuation as per SCHADS Award."
The position description was I find essentially consistent with the evidence given by the applicant before me. Essentially, the applicant was required to work effectively one-on-one with a disabled client of the respondent in a home setting. The home had two residents and accordingly generally speaking the applicant worked with another disability support worker engaged at the same classification.
The nature of the duties undertaken included encouraging and supporting the residents in their personal hygiene (showering and the like), healthy eating and food preparation, and providing them with transport and support in various outings such as shopping or visiting friends. The applicant indicated that generally she did the shopping on her own as it was more effective and avoided poor purchase choices being made by the residents.
Within the accommodation itself, there is also basic cleaning required. The applicant deposed to doing more than her fair share out because of the lack of proper cleaning undertaken by other workers.
The applicant was also required to record in a log the activities that she was engaged in and the resident undertook as well is using her training and skills to de-escalate situations of conflict involving the residents and her and each other.
The pay rate quoted in the employment agreement refers to Casual Social and Community Services Employees within Schedule B to the SCHADS Award.
In considering schedule B, it is necessary to differentiate between the definitions of the roles at the different levels - in this case, between levels one (B.1) and two (B.2).
The provisions most relevant to the work performed by the applicant are as follows:
[3]
(g) resident contact and interaction including attending to their personal care or undertaking generic domestic duties under direct or routine supervision and either individually or as part of a team as part of the delivery of social, community or disability services;
(h) preparation of the full range of domestic duties including cleaning and food service, assistance to residents in carrying out personal care tasks under general supervision either individually or as part of a team as part of the delivery of social, community or disability services.
[4]
The minimum rate of pay for employees engaged in responsibilities which are prescribed by B.1.2(h) is pay point 2.
[5]
(ii) Freedom to act is limited by standards and procedures.
[6]
(iii) Solutions to problems are found in established procedures and instructions with assistance readily available.
[7]
(iv) Project completion according to instructions and established procedures.
[8]
(d) An employee primarily engaged in responsibilities which are prescribed by B.1.2(g) will, if full-time, progress to pay point 2 on completion of 12 months' industry experience, or if part-time, on completion of 1976 hours of industry experience. Industry experience means 12 months of relevant experience gained over the previous 3 years.
[9]
(k) implementing client skills and activities programmes under limited supervision either individually or as part of a team as part of the delivery of disability services;
(l) supervising or providing a wide range of personal care services to residents under limited supervision either individually or as part of a team as part of the delivery of social, community or disability services;
(m) assisting in the development or implementation of resident care plans or the planning, cooking or preparation of the full range of meals under limited supervision either individually or as part of a team as part of the delivery of social, community or disability services;
(n) possessing an appropriate qualification (as identified by the employer) at the level of certificate 4 or above and supervising the work of others (including work allocation, rostering and providing guidance) as part of the delivery of disability services as described above or in subclause B.1.2.
[10]
(ii) have freedom to act within established guidelines;
[11]
(iii) solutions to problems may require the exercise of limited judgment, with guidance to be found in procedures, precedents and guidelines. Assistance will be available when problems occur.
[12]
In my view, the standout points of distinction that separate level B.2 from level B.1 role include that at level B.2 a worker is expected to exercise a degree of supervision and support for lower qualified workers; need to exercise greater judgment and initiative; develop plans and programmes.
Although the applicant possesses qualifications suiting her for a higher role, in my assessment, the day-to-day work undertaken by her most comfortably sits within the level B.1 definition.
I considered the applicant's evidence suggesting a greater degree of importance to the work undertaken by her was to some extent exaggerated. For example, her description of her duties including "drafting progress reports" on questioning amounted to her maintaining a work log as was required of all co-workers. Similarly, her statement of conducting "mental health assessments" on questioning referred to her forming a view as to the emotional state of the resident so as to be better able to handle them and de-escalate any antagonism being showed.
The supporting evidence given by Mr Bullivant struck me as barracking rather than objectively helpful.
Overall, I did not form the view that the work undertaken by the applicant involved the necessary degree of support of lower staff, development of plans or generally proceeding outside of established guidelines that would be expected at a level B.2.
Accordingly, I am satisfied that the applicant was paid the appropriate rate pursuant to the SCHADS Award and her claim is therefore dismissed.
Parties
Applicant/Plaintiff:
HIER, Peggy
Respondent/Defendant:
GEMCARE SUPPORT SERVICES PTY LTD and EMMANUEL KALLON