[2021] FWCFB 4863

The attached document replaces the document previously issued with the above code on 9 August 2021.

At paragraph [7] the date to file submissions in reply has been amended to read ‘Monday 30 August 2021’.

Associate to President Justice Ross AO

Dated 10 August 2021

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards—Social, Community, Home Care and Disability Services Industry Award 2010
(AM2018/26)

4 yearly review of modern awards – Social, Community, Home Care and Disability Services Industry Award 2010

[1] On 4 May 2021 the Commission issued a decision 1 in relation to the Tranche 2 claims in the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) (the Decision).

[2] Interested parties were to file any submissions and evidence in respect of the draft variation determination and our provisional views by no later than 4.00pm, Tuesday 3 August 2021.

[3] On 3 August 2021 we received correspondence from Australian Business Lawyers on behalf of a number of employer and union parties. The parties jointly requested that the issues relating to remote response and damaged clothing be dealt with separately and not be subject to the direction to file written submissions by 4pm that day and that a conference be convened in respect of these issues. In a Statement published on 3 August 2021 we granted that request.

[4] The conference in respect of remote response and damaged clothing will take place at 9.30am (AEST) on Thursday, 19 August 2021 before Deputy President Clancy. Parties are directed to exchange any further proposals in respect of remote response or damaged clothing and to file those proposals with the Commission by no later than 4.00pm (AEST) on Tuesday 17 August 2021.

[5] During the course of the proceedings on 6 August 2021 a broad consensus emerged that aspects of the broken shift issue could not be determined to finality on that day; we agree.

[6] The following matters in respect of the broken shift issue are to be the subject of a further opportunity to file submissions and evidence:

1. NDS’ proposal that the first sentence of clause 25.6 of the draft variation determination be amended to read:

‘This clause only applies to day workers who are social and community service employees when undertaking disability services work and home care employees.’

2. NDS’ proposal that clause 25.6(d) of the draft variation determination be amended to read:

‘Payment for a broken shift will be at ordinary pay with weekend and overtime penalty rates, including for time worked outside the span of hours, to be paid in accordance with clauses 26 and 28.’

3. The ASU proposal that clause 25.6(d) of the draft variation determination be amended as follows:

‘Payment for a broken shift will be at ordinary pay with shift, weekend, public holiday, and overtime, penalty rates to be paid in accordance with clauses 26, and 28, 29 and 34.’

4. The ASU proposal that, in the absence of a provision for paid travel time, the SCHADS Award should provide a clear statement that employees must not be required to travel between work locations during their meal breaks and that overtime should be payable until an employee is allowed a meal break free from travel. 2 The ASU has filed a draft determination in respect of this issue.

[7] Any submissions and evidence in respect of remote response, damaged clothing and the particular issues set out in [6] above are to be filed by no later than 4pm (AEST) on Wednesday, 25 August 2021. Any submissions and evidence in reply are to be filed by no later than 4pm (AEST) on Monday 30 August 2021.

[8] The hearing in respect of these matters will take place at 9:30am (AEST) on Wednesday 1 September 2021.

[9] All submissions are to be submitted to amod@fwc.gov.au and are to be filed in both word and PDF formats.

[10] We are conscious of the need to provide certainty in respect of the nature of the award variations to be made and to do so as quickly as possible. In making these directions we wish to emphasise the confined nature of the final stage of these proceedings. The submissions and evidence to be filed in accordance with the above directions is to be confined to the provisional views we expressed in respect of these issues in the May 2021 Decision and the particular matters mentioned in [6] above. Background Papers in respect of the remote response and damaged clothing matters have been published.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2021] FWCFB 2383.

 2   ASU submission 3 August 2021 at para. [41].