Fair Work Act 2009

s.739 - Dispute resolution

Alleged dispute about any matters arising under the modern award and the NES

• [1] On 13 June 2025, Ms Jodie Tucker made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act), raising an alleged dispute in accordance with clause 9 of the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award). The Respondent to the application is Ms Tucker's employer, MCS Holdings (Australia) Pty Ltd (the Respondent).

• [2] The matter was listed for conference before me on 26 June 2025. At the conference, the Respondent advised that it did not consent to the Commission arbitrating the matter pursuant to clause 9 of the SCHADS Award. I informed the parties that I would consider exercising my discretion to deal with the dispute by expressing an opinion.

• [3] Ms Tucker has been employed by the Respondent since 6 April 2023 as a casual support worker. Her employment is governed by the SCHADS Award. Clause 20.12 of the SCHADS Award provides for a broken shift allowance. It is uncontroversial that Ms Tucker regularly works broken shifts and that she is therefore entitled to receive the broken shift allowance.

• [4] The Respondent argues that because Ms Tucker is paid in excess of the minimum wage rates prescribed by the SCHADS Award, an offset provision in her common law employment contract allows the Respondent to offset the broken shift allowance payable under the SCHADS Award. Ms Tucker, represented by The Services Union, contends that because the offset term in her employment contract does not articulate the entitlements that are offset by the above-award payments, she remains eligible to receive the broken shift allowance in addition to her hourly rate of pay.

• [5] Until 30 May 2025, her employment contract provided an hourly rate of pay of $38.08, exclusive of superannuation. Ms Tucker then entered into her current employment contract, which provides an hourly rate of pay of $40.26, exclusive of superannuation. Clauses 16.3 -16.4 of Ms Tucker's employment contract contain an offset provision:

"16.3 Your pay is inclusive of any and all overtime rates which may otherwise be payable however, you will be entitled to any applicable penalty rates, allowances or loadings appropriate to your position as set out in the Industrial Instrument.

16.4 Where your pay exceeds any legislative minimum entitlements, any amount paid in excess of these minimum entitlements may be used to offset any entitlement that may otherwise have been applicable."

• [6] At the relevant time, clause 20.12 of the SCHADS Award stated as follows:

(a) An employee required to work a broken shift with 1 unpaid break in accordance with clause 25.6(a) will be paid an allowance of 1.7% ($20.12) of the standard rate, per broken shift.

(b) An employee who agrees to work a broken shift with 2 unpaid breaks in accordance with clause 25.6(b) will be paid an allowance of 2.25% ($26.63) of the standard rate, per broken shift."

• [7] The Commission does not have jurisdiction to arbitrate the dispute, absent the Respondent's consent.

• [8] Pursuant to s.595(2) of the Act, the Commission may express an opinion. I informed the parties at the conclusion of the conference that I would likely issue an opinion.

• [9] My opinion is that although Ms Tucker is paid in excess of the SCHADS Award, the Respondent is not entitled to offset the specific award conditions against her over-award payments unless by virtue of an enterprise agreement or an individual flexibility agreement, neither of which is in place.

Ms Tucker is entitled to bring an underpayment of wages claim before a Court of competent jurisdiction or in the Queensland Industrial Relations Commission via its wage recovery processes.

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