News & Insights

In a recent decision (Decision) the Fair Work Commission (Commission) has proposed a significant number of amendments to the Social, Community, Home Care and Disability Services Industry Award 2010 (Award).

The Decision followed research that revealed that disability workers were carrying the costs and risks associated with the provision of disability services whilst at the same time experiencing instability in paid hours of work, insufficient support, lack of job security and unsatisfactory remuneration structures.

draft determination  

Having regard to this research, the Commission has proposed to make the following variations to the Award:

Minimum engagements

1. Introduce a minimum payment period for non-full-time employees so that part-time and casual employees receive a minimum of either 3 hours’ pay, or 2 hours’ pay, depending on their classification.

Broken shifts

2. Redefine a “broken shift” as a shift consisting of two separate periods of work with a single unpaid ‘break’ (other than a meal break) and clarifying how this interacts with the new minimum payment period clause.
3. Accommodate broken shifts involving 2 unpaid ‘breaks’ in a shift, with the agreement of the employee and an additional payment in compensation.

provisional views

In addition to these changes, the Commission expressed a number of provisional views to further vary the Award (Provisional Views):

1. allowances for shift workers and overtime for day workers working broken shifts;
2. variations of rosters by mutual agreement;
3. minimum payments and new definitions for remote response work;
4. payments or alternative arrangements for employees following cancelled shifts;
5. reimbursement of reasonable costs associated with the cleaning or replacement of personal clothing;
6. additional hours worked by part-time workers are voluntary and part-time employees working frequent additional hours may request that their guaranteed hours be reviewed and increased in line with the additional hours previously worked;
7. employees working 24-hour care shifts must provide their agreement to work the shift, be given the opportunity to sleep for a continuous eight hours in a private room, be provided with access to food facilities, be paid overtime for time worked over 8 hours and may refuse unreasonable additional hours; and
8. employees sleeping over must be given access to clean bed linen and access to food preparation facilities.

impact on employers

The proposed changes will be welcomed by many workers covered by the Award. The Decision will also have implications for employers that will affect rostering, payroll and their ongoing compliance obligations:

1. Employers engaging disability workers should be prepared to ensure that they comply with the changes to the Award set out in the Decision, including in relation to:
   • minimum engagements; and
   • broken shifts.
2. Employers should also “watch this space” in relation to the Provisional Views, noting that any interested parties are required to file submissions and evidence in respect of the Provisional Views by 22 June 2021.

If you require further information in relation to the Decision and how this may impact your business in the future, please do not hesitate to contact the Employment, Safety and Migration team at Macpherson Kelley.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.