The Fair Work Commission is currently undertaking a “4 yearly review” of modern awards. As part of the review, it has undertaken an analysis of the Social, Community, Home Care and Disability Services Industry Award 2010 (the SCHADS Award) and is proposing to make several amendments to the Award.
Although the exact details of the changes (and the date they will be made) are not yet finalised, the FWC has provided a reasonable amount of detail on what is likely to happen.
The FWC wishes to introduce a minimum engagement/payment period for part-time employees by deleting clause 10.4(c) and inserting a new clause 10.5 in the SCHADS Award which will provide the following minimum payment periods for part-time and casual employees:
- social and community service employees (except when undertaking disability work) – 3 hours’ pay; and
- all other employees – 2 hours’ pay.
The effect of these changes will mean that employees will either have to rostered (or paid) for these minimum periods.
The FWC wishes to make related variations to the “broken shift” clause in the SCHADS Award by providing that a broken shift can consist of not more than two separate periods of work, subject to a limited exception.
A broken shift with a maximum of two unpaid ‘breaks’ in the shift (ie a broken shift in three parts) will be allowed where:
- there is agreement from the employee to work this; and
- an additional payment is made.
The FWC is proposing that an employee working a ‘1 break’ broken shift should receive a broken shift allowance of $17.10. The broken shift allowance payable for a ‘2 break’ broken shift is proposed to be $25.15. An employee who is a day worker who performs work outside of the ordinary span of hours when working a broken shift will be entitled to overtime for such work.
The FWC is going to convene a further conference to determine issues of whether employees should be paid for travel time between parts of a broken shift.
The FWC expressed the view that there is merit in varying clause 25.5(d) of the SCHADS Award to permit the variation of a roster by mutual agreement in circumstances where the variation is proposed by an employee to accommodate an agreed shift swap with another employee.
Remote response/recall to work
The FWC also decided that it is necessary to change the existing provisions of the SCHADS Award that deal with an employee being recalled to perform work after finishing their ordinary hours.
In particular, it expressed the views that:
- A shorter minimum engagement payment should apply in circumstances where the employee is being paid an “on call” allowance;
- There is merit in ensuring that each discrete activity (such as a phone call) does not automatically trigger a separate minimum payment;
- To deal with this a definition of ‘remote response work’ or ‘remote response duties’ should be inserted into the SCHADS Award, with different minimum engagement periods applying for such work.
In other words, where an employee is being paid an “on call” allowance to make themselves available to perform remote work for their employer (e.g. dealing with rostering emergencies that may arise, by telephone), the FWC was of the view that different minimum engagement periods should apply to those stated above.
The proposal for the definition of remote response duties is as follows:
In this award, remote response duties means the performance of the following activities:
(a) Responding to phone calls, messages or emails;
(b) Providing advice (“phone fixes”);
(c) Arranging call out/rosters of other employees; and
(d) Remotely monitoring and/or addressing issues by remote telephone and/or computer access.
The FWC expressed the provisional view that the minimum payments for remote response work should be as follows:
- for work performed between 6:00 am and 10:00 pm = 30 minutes;
- for work performed between 10:00 pm and 6:00 am = one (1) hour.
A further conference will be convened to discuss remote response work further.
The FWC expressed the view that clause 25.5(f) of the SCHADS Award be amended to provide employers with two options in the event of a client cancellation (outlined below):
- The employer would have the right to direct an employee to perform other work during the hours that they were rostered to work. In these circumstances, the employer would be required to pay the employee the amount they would have been paid had the employee performed the cancelled service or the amount payable for the work actually performed; whatever is greater.
- The employer would be permitted to cancel the shift. In these circumstances the employer would be required to:
- pay the employee the amount they would have received had they performed the cancelled service; or
- provide the employee with make-up time. Such make up time must be rostered to be performed within six weeks of the date of the cancelled shift. The employer must consult with the employee about when the make-up time will be performed. The make up time arrangement can only be used where the employee was notified of the cancelled shift at least 12 hours prior to the scheduled commencement of the shift.
The application of the clause also should be expanded to employers working in-home care or disability services.
Clothing and Equipment
The FWC expressed the view that the SCHADS Award should be varied to provide for the reimbursement of reasonable costs associated with the cleaning or replacement of personal clothing which has been soiled or damaged in the course of employment.
A further conference will be convened to discuss this further.
Overtime for part-time workers
The FWC proposed that the SCHADS Award should be varied in two respects:
- to make it clear that working any additional hours is voluntary; and
- to introduce a mechanism whereby a part-time employee who regularly works additional hours may request that their guaranteed hours be reviewed and increased, and their employer cannot unreasonably refuse such a request.
The FWC proposed to introduce new clauses dealing with 24-hour care as below.
The reference to “shiftworker for the purpose of the NES” is to make clear that an employee who works at least eight 24-hour care shifts in a year receives an additional week of annual leave.
Clause 25.8 24 – hour care;
This clause only applies to home care employees.
(a) A 24-hour care shift requires an employee to be available for duty in a client’s home for a 24 hour period. During this period, the employee is required to provide the client with the services specified in the care plan. The employee is required to provide a total of no more than 8 hours of care during this period.
(b) An employer may only require an employee to work a 24-hour care shift by agreement.
(c) The employee will be afforded the opportunity to sleep for a continuous period of eight hours during a 24-hour care shift and employees will be provided with a separate room with a bed and clean linen, the use of appropriate facilities (including access to food preparation facilities and staff facilities where these exist), and free board and lodging for each night when the employee sleeps over.
(d) The employee engaged will be paid 8 hours of work at 155% of their appropriate rate for each 24-hour period.
(e) If the employee is required to perform more than 8 hours of work during a 24-hour care shift, that work shall be treated as overtime and paid at the rate of time and a half for the first 2 hours and double time thereafter, except on Sundays when overtime will be paid for at the rate of double time, and on public holidays at the rate of double time and a half. An employer and employee may utilise the TOIL arrangement in accordance with clause 28.2.
(f) An employee may refuse to work more than 8 hours of work during a 24-hour care shift in circumstances where the requirement to work those additional hours is unreasonable.
Clause 25.7(c) of the SCHADS Award is to be varied to provide employees performing a sleepover shift with access to clean bed linen and access to food preparation facilities.
What will happen next?
The FWC ordered that interested parties are to file any submissions and evidence in respect of the draft variations and the FWC’s provisional views regarding the SCHADS Award by 4.00 pm (AEST) Tuesday 22 June 2021.
A conference will be convened on Thursday 27 May 2021 at 10:30 am (AEST) to further discuss the following matters in the SCHADS Award:
- payment for travel time;
- remote response/recall to work;
- clothing and equipment payments.
A hearing will then be listed on Wednesday 30 June 2021 to make further decisions regarding all of the above.
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