As Members may recall, on 4 May 2021, the Fair Work Commission (FWC) handed down a significant Decision concerning the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award). Ai Group has been playing a leading role in the proceedings before the FWC for several years and has filed numerous submissions on behalf of Members. The proceedings concern a raft of union and employer claims to substantially vary the SCHADS Award.

The FWC has since issued two further important decisions in relation to these proceedings. The key outcomes flowing from the various decisions are summarised below.

Initial Decision

In its initial Decision, the FWC decided that:

• Various claims to vary the SCHADS Award were rejected. These included union claims concerning a proposed mobile phone allowance or provision of a mobile phone, a community language allowance, overtime payments for roster changes, removal of provisions for client cancellations and an expansion to overtime entitlements for part-time and casual employees.

• Various other claims to vary the SCHADS Award were granted, or provisionally granted, in part or in full. For example:

• New minimum engagement periods would apply to part-time employees.

• The minimum engagement periods applying to casual home care employees would increase from 1 hour to 2 hours.

• The broken shift provisions would be altered. A shift could only be broken once, or twice if the employee agrees. A broken shift allowance would be payable for each shift worked. Minimum engagement periods would apply to each portion of a broken shift.  

• The FWC has expressed the view that employees should be compensated for time spent travelling between engagements. However, it proposed that this issue not be considered further at this time, given that it is inherently interconnected with the changes proposed to minimum payment periods and broken shifts.

• A new clause would be inserted applying to “remote response” work that requires employees to be paid for time spent working remotely outside their ordinary hours of duty, e.g. taking phone calls, assisting with emergencies, implementing short-notice roster changes, etc.

• A new mechanism would be introduced allowing part-time employees who have regularly worked hours in addition to their agreed ordinary hours to request that their agreed hours be increased.

• The client cancellations clause would be extended to disability services and would no longer permit an employer to withhold payment for a cancelled shift. Rather, depending on the circumstances, an employer would be required to provide make up time to the employee or to pay the employee for the cancelled shift.

• The SCHADS Award would be varied to introduce a clause that requires an employee be reimbursed for clothing and equipment that is damaged or soiled in the course of their employment.

Decision Regarding Outstanding Matters

On 18 October 2021, the FWC issued a further Decision concerning certain outstanding matters arising from the proceedings.

Broken Shifts and Shiftwork

A controversy arose during the course of the proceedings as to whether shiftworkers should be permitted to work broken shifts and if so, how they should be remunerated. The FWC accepted Ai Group’s submissions that:

• The SCHADS Award should permit the performance of broken shifts by shiftworkers.

• Where a shiftworker performs work on a broken shift, the afternoon and night shift loadings should be payable only on those portions of the broken shift that satisfy the afternoon / night shift definitions.

• The broken shift allowances previously provisionally determined by the FWC should be lowered. Accordingly, the allowance applying to a shift that is broken twice will be lowered from 2.5% of the standard rate to 2.25%. The allowance for a broken shift with one break will be set at 1.7% of the standard rate.

Travel Between Locations During Meal Breaks

The unions sought the introduction of a new provision that would have expressly prohibited employees from being required to travel between work locations during meal breaks and would have required the payment of overtime rates if an employee was required to do so, until the employee was allowed a meal break free from travel.

The FWC accepted Ai Group’s submissions and determined that the unions had not made out a case for the variation they had proposed.

Damaged Clothing

The FWC had previously decided that the SCHADS Award would be varied to include a new provision that afforded employees an allowance in relation to damaged clothing. Parties were directed to discuss and endeavour to agree on the form of such a provision. Ai Group played the leading role on behalf of employers in those discussions.

The parties agreed on a provision that, in summary, provides employees with:

• A laundry allowance of $0.32 per shift, if their clothing (other than a uniform) is soiled in the course of performing their duties.

• Reimbursement of reasonable costs incurred as a result of necessary repair or replacement of damaged or soiled clothing (other than a uniform).

The above entitlements are subject to the following limitations, which Ai Group advocated for:

• The employee must provide notice of the soiling or damage as soon as reasonably practicable;

• The employee must provide evidence of the soiling or damage if the employer requires it;

• The employee must have complied with any reasonable requirement to wear personal protective equipment; and

• The employee must not have caused the damage or soiling because of their own negligence.

Remote Work

The FWC has decided on the form of a new “remote work” clause which, in broad terms, will apply where an employee performs work at the direction of their employer or with their employer’s authorisation, outside their ordinary hours of work, where the employee is not required to perform the work at a designated workplace (e.g. the employee can perform the work at their home).

The clause provides for the rates at which employees must be paid for such work, the minimum payment periods that apply, record keeping requirements and how the clause interacts with other provisions of the Award.

Importantly, the following minimum payments will apply to the performance of remote work:

• Where the employee is on call between 6:00am and 10:00pm – a minimum payment of 15 minutes’ pay;

• Where the employee is on call between 10:00pm and 6:00am – a minimum payment of 30 minutes’ pay;

• Where the employee is not on call – a minimum payment of 1 hour’s pay; and

• Where the remote work involves participating in staff meetings or staff training remotely – a minimum payment of 1 hour’s pay.

Transitional Arrangements – Part-time Employees

The FWC had previously decided to introduce new minimum payment periods for part-time employees. In its most recent Decision, in light of submissions advanced by Ai Group, it has decided to introduce transitional arrangements in this regard. Specifically:

• The transitional arrangements apply where an employer and part-time employee have agreed on a pattern of work prior to 1 February 2022 that involves periods of work or shifts that are shorter in duration than the new minimum payment periods.

• Where the transitional arrangements apply, the employer must discuss the minimum payment requirements with the relevant employee and genuinely try to reach agreement on a variation to their agreed hours, such that their shifts / periods of work are consistent with the new minimum payment periods and reasonably accommodate the employee’s circumstances.

• If agreement cannot be reached, the employer can vary the employee’s agreed pattern of hours with 42 days’ written notice, such that each shift / period of work is consistent with the minimum payment periods. This variation must not come into operation before 1 July 2022.

Operative Date to Changes to the SCHADS Award

Ai Group strongly contended that the changes to the SCHADS Award should not commence before 1 July 2022.

Pleasingly, the FWC accepted Ai Group’s arguments regarding a delayed operative date. Although the FWC had previously determined that the changes would commence operation on 1 October 2021, it has since confirmed that the operative date of the changes will be delayed until 1 July 2022.

Next Steps

It is anticipated that a final determination identifying the changes to be made to the SCHADS Award will be published by the FWC shortly. Ai Group will distribute a summary of the specific variations to be made to the Award once that determination becomes available.

Members seeking further information regarding the FWC’s Decisions or the proposed changes to the SCHADS Award should contact Brent Ferguson, Director – Major Cases, Workplace Relations Advocacy & Policy on (02) 9466 5530 or Ruchi Bhatt, Principal Adviser – Workplace Relations Policy on (02) 9466 5513.