Call free on
1300 575 394
Get a quote

Social, Community, Home Care and Disability Services Industry Award 2010

4 yearly review of modern awards.
Return to previous page
 Social, Community, Home Care and Disability Services Industry Award 2010

Social, Community, Home Care and Disability Services Industry Award 2010

12 May 2021

On 4 May 2021, the Fair Work Commission (Commission) handed down its long-awaited decision in relation to its review of the Social, Community, Home Care and Disability Services Industry Award 2010 (the SCHADS Award).

The decision is in excess of 300 pages and can be found here. The Commission also published a summary of its decision, which can be found here.

The decision dealt with some 20 claims by unions and employer groups to vary terms of the SCHADS Award. The proceedings took place over 3 years and involved the examination of extensive written materials, witness evidence and submissions. Business NSW’s industrial relations affiliate, Australian Business Industrial (ABI), played a lead role in the proceedings on behalf of Business NSW members (represented by Australian Business Lawyers & Advisors (ABLA)).


Union claims defended

Employer parties successfully defended union claims to introduce a range of new entitlements into the Award, with the Fair Work Commission rejecting claims for:
  • introduction of overtime payments for part-time employees working additional hours (beyond their guaranteed hours);
  • introduction of overtime payments where an employee’s roster is changed with less than 7 days’ notice;
  • removal of the client cancellation clause;
  • removal of the 24-hour-care clause;
  • introduction of a community language allowance;
  • introduction of an obligation on employers to pay costs of first aid certificate renewals; and
  • introduction of a mobile phone allowance.


Other claims granted (in part)

However, the Commission was persuaded to make variations to existing provisions relating to minimum engagements, broken shifts, overtime, part-time working arrangements, client cancellation, remote response work, 24-hour care and sleepovers. The Commission has also left open the prospect of reassessing the issue of travel time. Each of these issues is outlined in more detailed below.

Minimum engagements
The Commission rejected union claims for a 3-hour minimum engagement for all categories of employees (the Award currently contains no minimum engagements for part-time employees). However, the Commission decided to implement:
  • a 3-hour minimum engagement for part-time and casual employees in the SACS stream (excluding disability services); and
  • a 2-hour minimum engagement for part-time and casual employees in the disability services and home care streams.

Broken shifts
The Commission was persuaded to make a range of changes to the broken shifts clause, including:
  • limiting the use of broken shifts to a maximum of two portions of work (and one break) or, by agreement with the individual employees, a maximum of three portions of work (and two breaks in between);
  • making it clear that the minimum engagement period (or minimum payment) will apply for each portion of work in a broken shift; and
  • introducing an allowance to compensate employees for the disutility associated with working broken shifts.

In relation to the quantum of the ‘broken shift allowance’, the Commission expressed a provisional view that the allowance should be 1.7% of the standard rate for broken shifts involving one break (two portions of work), and 2.5% of the standard rate where the broken shift involves two breaks (three portions of work). These allowances equate to $17.10 and $25.15 respectively per broken shift.

The Commission has also left open the prospect of reassessing the issue of travel time. The Commission accepted that most workers are not paid for travelling to, from and between clients, often being significant amounts of time without payment. Further, the Commission found that minimum engagement, broken shifts and travel time are “interrelated” which will likely see the proposed broken shift allowance and minimum engagements impact current rostering practices. It is likely that the changes to minimum engagements and broken shifts will address the concerns around travel time, however the Commission has left open the prospect of considering whether further changes are necessary to address the issue of travel time.

Overtime
The Commission expressed the provisional view that where an employee who meets the definition of ‘day worker’ under the Award performs work outside of the ordinary span of hours (including as part of a period of work in a broken shift), the employee should be entitled to overtime for such work.

Part-time working arrangements
The Commission rejected a union claim for overtime to be payable where part-time employees work additional hours (beyond their guaranteed hours).

However, the Commission largely accepted an alternate proposal advanced by ABI which would provide a mechanism for part-time employees to have their guaranteed hours reviewed where they regularly work additional hours. The Commission expressed the provisional views that:
  • the Award should be varied to make it clear that working additional hours is voluntary; and
  • a mechanism should be introduced to allow a part-time employee who regular works additional hours to request that their guaranteed hours be reviewed and increased – a request which their employer cannot unreasonably refuse.

Client cancellation
The Commission largely accepted ABI’s claim to vary the existing client cancellation clause to extend it to the disability services stream (currently, the client cancellation clause is only available for employers and employees in the home care stream). This is a significant positive development for employers operating in the disability services industry.

The Commission expressed the provisional view that the current client cancellation clause would be varied to:
  • apply to both home care and disability services work where a client cancels a scheduled service with less than 7 days’ notice;
  • allow for employers to either redeploy the employee to other work or provide the employee with ‘make up time’ within a subsequent 6-week period.

Remote response work
In response to a union claim for a new ‘remote response’ clause which would have entitled employees to overtime for a minimum of 2 hours work when requested to perform work away from the workplace
(or a minimum of 1 hours’ work when on call), ABI advanced an alternative (and more modest) proposal for remunerating employees when performing remote response work.

The Commission accepted that it was necessary to introduce a clause dealing with remote response work, and expressed the provisional view that the minimum payment for remote response work performed between 6.00am and 10.00pm should be 30 minutes and the minimum payment between 10.00pm and 6.00am should be 1 hour. A further conference will be convened to discuss further issues relating to the clause.

24-hour care
The Commission rejected union claims to delete the 24-hour care clause, however expressed the provisional view that the clause would be amended to:
  • only require employees to perform 24-hour care shifts by agreement;
  • make it clear that employees will be given the opportunity to sleep for a continuous period of 8 hours during a shift;
  • entitle employees to basic facilities;
  • make it clear that where an employee performs more than 8 hours’ work during a 24-hour care shift, additional work will trigger overtime payments; and
  • make it clear that employees who perform 24-hour care shifts regularly (more than 8 per year) are shift workers for the purposes of the entitlement to an additional week’s annual leave.

Sleepovers
The Commission was persuaded to vary the sleepovers clause to entitle employees to basic facilities during a sleepover shift.

Other changes
Other changes include:
  • providing for the reimbursement of reasonable costs associated with the cleaning or replacement of personal clothing which has been soiled or damaged during employment; and
  • varying clause 25.5(d) to permit the variation of a roster by mutual agreement (for example to accommodate an agreed shift swap with another employee).


When will the changes come into effect?

The changes have not come into effect yet. The Commission has published a Draft Determination which outlines the specific drafting changes that have been proposed, and there is a process for parties to comment on the drafting of the proposed changes before they are implemented. A hearing has been scheduled for 30 June 2021 to finalise the drafting. On that basis, it might be expected that the changes will not be implemented until later 2021 (or January 2022).

Importantly, the draft determination also involves a number of ‘provisional views’ (as opposed to final determinations), and so those matters will be the subject of further proceedings prior to a final decision being made.

ABI (through its legal representatives ABLA) will continue its participation in the proceedings on behalf of employers in the industry.

To view the draft determination in full click here.

To view the decision in full click here.

To view the summary of the decision click here.

To attend the hearing online or via phone click here.

Sign up to get the latest news and updates

Like what you’re hearing?

With plans available from just $58 per week, now is an excellent time to join Workplace Assured.

PROTECTION
REASSURANCE
GUIDANCE