Local Government, Aged, Disability and Home Care (State) Award [2025] NSWIRComm 1034 (25 June 2025)

1. The Application has been made while the Award is otherwise under review arising from the State Wage Case 2024.
2. On 9 October 2024, in State Wage Case 2024 (No 2) [2024] NSWIRComm 6, the Full Bench determined to increase the rates of pay and pay-related allowance by 3.75% in line with the Annual Wage Review 2023-24 [2024] FWCFB 3500; 331 IR 248 (this being a National decision within the meaning of s 50 of the Industrial Relations Act 1996 (NSW)) (IR Act), from 1 July 2024 in respect of "Category 1" awards and from 1 September 2024 in respect of "Category 2" and "Category 3" awards, as identified in the Full Bench's decision. Category 1, 2 and 3 awards are all "minimum rates awards", as opposed to "paid rates awards", the later prescribing rates that an employer is not only obliged to pay to employees, but which also in practice represents the actual remuneration received by the employee. Minimum rates awards, as the name suggests, prescribe a minimum rate of pay, but in practice employees may be paid more than the prescribed amount. There are only a small number of minimum rates awards made by the Commission and pursuant to Award Making Principle 6.2 (and its cognate predecessors) the Commission determines whether an adjustment should be made to the rates provided for in those awards as part of its annual State Wage Case that follows the completion of the Annual Wage Review by the Fair Work Commission.
3. The Full Bench in the State Wage Case 2024 identified a need for all of the minimum rates awards identified in the three categories to be reviewed to establish their ongoing utility and, in the case of the Category 1 awards, whether the rates provided for in the awards require adjustment to ensure they represent fair and reasonable wages in conformity with the Commission's statutory mandate.
4. The LGADHC Award is a "Category 3" award, along with the Nurses' (Local Government) Residential Aged Care Consolidated (State) Award 2021, being awards covering employees of local government (together referred to as the "Category 3 Awards").
5. The Full Bench referred the review to me to report to the Full Bench pursuant to s 156(5)(a) of the IR Act. My report is not yet finalised, however by reason of evidence filed in the ongoing State Wage Case 2024 proceeding, I am satisfied that the LGADHC Award is not obsolete, and that the rates provided for in the Award, particularly after the proposed further variation, represent fair and reasonable wages and I will be reporting this to the Full Bench. For the reasons I set out below I consider that the variation sought by the HSU and LGNSW should be made at this time, despite the fact that the State Wage Case 2024 review of minimum rates awards is not yet complete. Whether any further variation is required arising from my review will be a matter for the Full Bench.
6. The Award applies to persons employed in home care services and aged care facilities, and home care services for the disabled in the private disabilities service industry and aged care facilities, which are run by local government and who come within the constitutional rule of the HSU.
7. The party card for the Award (maintained by the Registrar pursuant to r 6.7 of the Industrial Relation Commission Rules 2022) records that the persons affected by the Award are the HSU, LGNSW, Unions NSW and Aged & Community Care Providers Association Ltd. Neither Unions NSW, nor the Aged & Community Care Providers Association were named as parties to the Application, however the Commission received email correspondence confirming their consent to the making of the proposed variations.
8. As already mentioned, the variation seeks to increase pay rates in line with those awarded in Stage 3 Tranche 1 of the Fair Work Commission's Aged Care Work Value Case. Mr Yap provided some background and information related to the Aged Care Work Value Case in his affidavit.
9. Between 2020 and 2024 the Fair Work Commission (FWC) heard the Aged Care Work Value Case. That case concerned whether minimum wages for aged care employees covered by three federal modern awards, namely the Aged Care Award, the Social, Community, Home Care and Disability Services Industry Award and the Nurses Award (collectively the Federal Aged Care Awards), should be varied to reflect the work value of the employees and to ensure equal remuneration of men and women workers for work of equal or comparable value. The proceedings arose out of a recommendation of the Royal Commission into Aged Care Quality and Safety.[1]
10. In November 2022 the FWC determined that the evidence established that the existing minimum rates did not properly compensate workers engaged in the provision of direct care to aged persons, in either residential facilities or in-home settings, for the value of the work performed and that an interim increase of 15% to modern award minimum wages applying to direct aged care workers was justified: Aged Care Award 2010 [2022] FWCFB 200; 319 IR 127.
11. On 21 February 2023, the FWC determined to increase modern award minimum wages by 15% for certain employees covered by the Federal Aged Care Awards from 30 June 2023: Aged Care Award 2010 [2023] FWCFB 40. These increases are referred to as the "Stage 2 Interim Increases".
12. The Stage 2 Interim Increases were funded by the Australian Government through the Australian National Aged Care Classification (AN-ACC) funding model. Although the FWC decisions directly affected only federal modern awards, the AN-ACC funding was also provided to local government aged care operators covered by the Category 3 Awards referred to in the State Wage Case 2024.
13. As part of the State Wage Case 2023 proceedings, LGNSW filed consent award variation applications to increase the minimum wages in both Category 3 Awards to reflect, as a composite increase, both the FWC's Stage 2 interim Increases (for direct care classifications) and the general increase in the FWC's Annual Wage Review 2022-23: Annual Wage Review 2022-23 [2023] FWCFB 3500; 323 IR 332. The applications were approved by a Full Bench of the Commission in State Wage Case 2023 [2023] NSWIRComm 1121. In respect of the Award, the Full Bench made the following orders:

1. the rates of pay for classification in the Local Government, Aged, Disability and Home Care (State) Award that are direct care classifications in aged care are increased by percentages agreed between the parties, which range from 5.75% to 16.00%;

2. the classification of Care Services Employee New Entrant is deleted.

2. Pursuant to s 50 of the Act_,_ the Commission adopts the AWR 2023 as a National decision in relation to the Local Government Aged Disability and Home Care (State) Award for purposes other than the rates of pay for direct care classifications in aged care.

3. Pursuant to s 52 of the Act, the pay of the classifications that are not direct care work classifications in aged care in the award and pay-related allowances be increased by 5.75%.

4. Orders 1 and 3 take effect on and from the first full pay period commencing on or after 1 September 2023.

5. To give effect to Orders 1 to 4, the Local Government, Aged, Disability and Home Care (State) Award is varied in the terms stated in Annexure A to this order.

1. Between March and September 2024, the FWC made a series of decisions in Stage 3 of the Aged Care Work Value Case: Aged Care Award 2010 [2024] FWCFB 150, Aged Care Award 2010 [2024] FWCFB 298, and Aged Care Award 2010 [2024] FWCFB 367. In summary, and among other provisions, these decisions:

(1) awarded varying levels of pay increases to direct care, home care, and general and administrative services employees (in addition to the earlier Stage 2 Interim Increases) (Stage 3 Increases);

(2) provided for the implementation of the pay increases in two tranches, with Tranche 1 taking effect on 1 January 2025 and Tranche 2 taking effect on 1 October 2025; and

(3) partially revised the classification structure.

1. As with the Stage 2 Interim Increases, the Australian Government is providing financial assistance to assist in the payment of the Stage 3 Increases. To assist in that process the Australian Government Department of Health and Aged Care issued a guidance document in respect of the Stage 3 Increases. The Stage 3 Tranche 1 Guidance is entitled "Aged Care Worker Wages Guidance for Aged Care Providers on Stage 3 of the Fair Work Commission Aged Care Work Value Case" dated November 2024. A copy of the Guidance was annexed to Mr Yap's affidavit. On page 6 of the Guidance is a set of Guidance Tables which contains the following explanation:

"The Guidance Tables below provide the difference in dollar terms between the current award rate and the new award rate for each award classification. The tables also set out the classification changes that will start from 1 January 2025 (from the first full pay period on or after 1 January 2025).

The additional amount payable (last column) is what the government expects providers of residential aged care and Home Care Packages to pass on to employees as a result of the Fair Work Commission Stage 3 decision. Employers are not limited to passing on these dollar amounts and may choose to pay over and above the amounts in the last column of the tables. Passing on funding allocated to support wage increases will help address long-term work value issues, improve gender equity, and contribute to the delivery of quality aged care services."

1. The parties have reached agreement as to the appropriate matching between the classifications in the Federal Aged Care Awards and LGADHC Award. The matching forms the basis for determining the applicable "additional amount payable" as set out in the Guidance Tables, to employees covered by the LGADHC Award. Annexed to the Affidavit of Mr Yap was a table setting out the classification matching and resultant proposed pay increases for each the classifications in the LGADHC Award, as agreed between the parties.
2. I understand that by agreeing to pay the Stage 3 Tranche 1 increases Local Governments with employees covered by the LGADHC Award will be able to secure funding from the Australian Government.
3. The proposed pay increases are to take effect from the first full pay period commencing on or after 1 January 2025, being the date on which the Stage 3 Trance 1 increases and the corresponding Australian Government funding commenced.
4. Two further increases are scheduled as part of the Aged Care Work Value Case. The third increase, effective from 1 March 2025, applies to nursing classifications only and is not relevant to the LGADHC Award. The New South Wales Nurses and Midwives' Association and Local Government NSW are in discussions regarding a separate consent application to vary the LG Nurses Award to give effect to the second and third increases in a single application. The parties intend to discuss the fourth increase, effective from 1 October 2025, following the release of the relevant funding guidance materials. It is anticipated that a further consent variation application will be made to give effect to that increase.
5. Mr Yap opined in his Affidavit that the proposed variations to the Award provides for equal remuneration and other conditions of employment for male and female employees doing work of equal and comparable value because:

"16. First, the wage increases proposed in the consent variation is based on the increases awarded by the FWC in the Aged Care Work Value Case, which were expressly made on work value and gender equity grounds. For example, in awarding a substantial pay increase to direct care employees, the FWC Full Bench reasoned in Aged Care Award 2010 [2024] FWCFB 150 at [156(1)]:

...These skills of interpersonal and contextual awareness, verbal and non-verbal communication, emotion management and dynamic workflow coordination were effectively disregarded by the simplistic use of the masculinised C10 benchmark as the basis for the award pay structures for PCWs, HCWs and AINs. This represents a continuation of the history we have earlier outlined of treating the skills exercised in female-dominated industries and occupations as merely feminine traits and not representative of work value in the traditional, narrowly-defined sense. This mischaracterisation and disregard of 'invisible' skills lies, as was stated in the Stage 1 decision, 'at the heart of the gendered undervaluation of work.' The result is that, even leaving aside the issue of changes in work value, the starting-point award rates for direct care employees were not properly set in the first place...

17. Similarly, in respect of indirect care employees, the FWC Full Bench concluded in Aged Care Award 2010 [2024] FWCFB 150 at [277]:

...[W]e consider that insofar as we propose to increase minimum pay rates for those categories of indirect care employees who, to some degree, exercise gendered 'invisible' skills, this will assist in ensuring equal remuneration for work of equal value, eliminating gender-based undervaluation of work and providing workplace conditions that facilitate women's full economic participation, and thus will assist in achieving gender equality. This weighs in favour of the variations...

18. Second, the classification structures in the Category 3 Awards are gender-neutral and apply equally to men and women performing the same or comparable duties within each classification.

(1) The Commission may vary or rescind an award.

(2) Sections 11, 13 and 15 apply to any such variation or rescission. The other provisions of this Division continue to apply to the award as varied.

(3) An award may be varied or rescinded in any of the following circumstances only -

(a) at any time with the mutual consent of all the parties to the making of the original award,

(b) at any time to give effect to a decision of the Full Bench of the Commission under section 50 or 51 (National and State decisions),

(c) during its nominal term if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so,

(d) after its nominal term if the Commission considers that it is not contrary to the public interest to do so.

(4) This section extends to a variation or rescission of an award in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute.

1. Further, pursuant to sub-principle 3.1(6) of the 2024-2025 Award Making Principles: State Wage Case 2024 (No 4) [2024] NSWIRComm 25; 337 IR 182, an award may be varied without the application needing to be considered as an Arbitrated Case under Principle 9, where the application is consented to by the parties, and where the award otherwise complies with the requirements of the IR Act.
2. As noted above, the variations are to apply from 1 January 2025, being some six months earlier than the date of the Application. Pursuant to s 15(4) (as applied by s 17(2) of the IR Act) the Commission may order that a variation is to apply retrospectively from a date, specified in the award, that is earlier than any date referred to in sub-s 15(3), if the parties consent and if the award sets conditions of employment for employees of a single employer or for employees of two or more associated employers.
3. The parties identified on the party card have all consented to be the proposed variation of the LGADHC Award.
4. No evidence or argument was presented to me as to whether the employers of the employees covered by the LGADHC Award, being "local government" are a :single employer" or "associated employers", but I assume that that they are one or the other (more likely the later) and that there is no impediment to me ordering that the variation is to apply from 1 January 2025.
5. On the basis of the evidence given by Mr Yap, and in particular that the basis for the increase in pay rates is the decisions made by the FWC in the Aged Care Work Value case, I am satisfied that the variation will set fair and reasonable rates of pay. I congratulate the parties on reaching a resolution in respect of the matching of classifications with the relevant federal modern Awards, so as to determine the minimum rates to be made to the employees covered by the LGADHC Award, without the need for arbitration.
6. While there is no evidence as to the ratio of women to men covered by the Award, on the basis of Mr Yap's uncontested evidence it may be readily assumed that the workforce is predominantly female. However, in light of the adoption of increases which reflect those determined by the FWC to address, inter alia, gender undervaluation, combined with the non-discriminatory application of the provisions of the LGADHC Award to men and women, I am satisfied that the proposed varied LGADHC Award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value.
7. In determining whether to make the variation sought the Commission must have regard to the public interest and for that purpose must have regarding to the state of the economy of New South Wales and the likely effect the variation would have on that economy: s 146(2)(b) of the IR Act. No evidence or other guidance was provided by the parties in relation to this matter. Drawing on evidence that has been filed in the State Wage Case 2024 minimum rates review currently before me I am aware that as at 3 March 2025 there were only 300 employees, employed by nine local councils, who were covered by both of the Category 3 Awards and that it was expected that by the end of March this number would halve due to the transition of employees to a private aged care provider. Given the small cohort I do not consider the variation will have any effect, one way or the other, on the economy of New South Wales.
8. Paying due regard to the fact that this is a consent application, providing for an immediate increase to the remuneration of employees who according to the FWC have been undervalued, including by reason of gender, I am satisfied that it is in the public interest to vary the Award in the manner sought by the Application.
9. I note that the nominal term of the LGADHC Award expired on 24 November 2018, however it remains in force until rescinded by the Commission: s 16(1) of the IR Act. As the consent Application is to vary the existing Award, the name of the Award, will remain unchanged.
10. I make the following orders:

(1) Pursuant to s 17 of the Industrial Relations Act 1996, the Local Government, Aged, Disability and Home Care (State) Award is varied by consent as follows:

Delete Part B Table 1 - Monetary Rates of the Award as made on 4 December 2015 and published on 19 February 2016 (379 I.G.254), and as varied on 9 October 2024 and published on 14 March 2025 (397 I.G. 1097) and insert in lieu thereof Part B Table 1 and the notes thereto, as set out in the document filed on 5 June 2025 and headed Amended Schedule A.

(2) The variation shall take effect from the first full pay period commencing on and from 1 January 2025.

(3) The parties are directed to file a Word version of the consolidated Award as varied, by 27 June 2025.

1. On 24 June 2025 the Commission received an email from Mr Yap advising that on review the parties had become aware that the LGADHC Award did not contain the following clause, as required by Principle 6.2 of the Award Making Principles:

The rates of pay in this award include the adjustments payable under the State Wage Case for the relevant year. These adjustments may be offset against:

(i) any equivalent over award payments, and/or

(ii) award wage increases other than State Wage Case adjustments.

1. To correct this error the HSU prepared a revised version of Schedule A, being the document containing the agreed revised Part B Table 1 to the LGADHC Award, with the above clause set out under the heading 'Table 1 - Monetary Rates'. The inclusion of this clause is agreed to by the parties.
2. In the circumstances Order 1 as made on 13 June 2025 shall be amended to read:

(1) Pursuant to s 17 of the Industrial Relations Act 1996, the Local Government, Aged, Disability and Home Care (State) Award is varied by consent as follows:

Delete Part B Table 1 - Monetary Rates of the Award as made on 4 December 2015 and published on 19 February 2016 (379 I.G.254), and as varied on 9 October 2024 and published on 14 March 2025 (397 I.G. 1097) and insert in lieu thereof Part B Table 1 and the notes thereto, as set out in the document filed on 25 June 2025 and headed Schedule A.

[1] Royal Commission into Aged Care Quality and Safety, Care Dignity and Respect (Final Report, March 2021)