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Variations to the Social, Community, Home Care and Disability Services Industry Award 2010

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Variations to the Social, Community, Home Care and Disability Services Industry Award 2010

Variations to the Social, Community, Home Care and Disability Services Industry Award 2010

7 February 2022

On 31 January 2022, the Fair Work Commission (‘Commission’) issued a final determination to give effect to the decisions made by the Commission on 4 May 2021 ([2021] FWCFB 2383), 25 August 2021 ([2021] FWCFB 5244) (‘August 2021 Decision’), 18 October 2021 ([2021] FWCFB 5641) and 31 January 2022 ([2022] FWC 198) (‘January 2022 Decision’). These decisions addressed various substantive issues regarding the Social, Community, Home Care and Disability Services Award 2010 (SCHADS Award) and have resulted in several variations to existing clauses and the introduction of some new provisions.

The review of the SCHADS Award formed part of the Commission’s four yearly review of modern awards which commenced in 2018. In the lead up to this long-awaited final determination, over 20 claims by unions and employer groups were raised and the proceedings took place over 4 years involving the examination of extensive written materials, witness evidence and submissions. Below is a summary of the key changes to the SCHADS Award resulting from decisions and final determination.

What are the key changes?

Part-time working arrangements
A new provision will be introduced for part-time employees to have their guaranteed hours reviewed where they regularly work additional hours. Working additional hours is voluntary and a part-time employee who regularly works additional hours may request that their guaranteed hours be reviewed and increased, a request which their employer cannot unreasonably refuse. However, an employee cannot make a request for their guaranteed hours to be reviewed if in the last 6 months; the employee has refused a previous offer to increase their guaranteed hours, or where the employer refused such a request from the employee based on reasonable business grounds.

Minimum payments for part-time and casual employees
Minimum payments will also apply to part-time employees (no longer casual employees only) and will be paid at the appropriate rate, for each shift or period of work in a broken shift. The minimum payment requirements will be as follows:
  • 3-hours for social and community services sector (‘SACS’) employees (excluding when disability services work is undertaken); and
  • 2-hour for all other employees.

Transitional arrangements applying to minimum payments for part-time employees
Transitional arrangements will apply from 1 February 2022 until 1 October 2022 for the above newly introduced minimum payment requirements for part-time employees. However, the transitional arrangements will only apply to agreements made under clause 10.3(c) which were entered into before 1 February 2022 and provide for shifts or periods of work in broken shifts of less than the hours specified in the new minimum payment requirements.

This requires that employers consult with their impacted part-time employees about the new minimum payment requirements. Employers must genuinely try to reach agreement on a variation to the agreement made under 10.3(c) to ensure the employee’s shifts or periods of work in broken shifts are consistent with the hours specified in the new minimum payment requirements.

If no agreement is reached, the employer can unilaterally alter the agreement made under 10.3(c) to ensure consistency with the hours specified in the new minimum payment requirements, by giving 42 days’ notice in writing. A variation under this new provision must be in writing and varies the agreement made under 10.3(c). A variation under this provision unilaterally made by an employer must not take effect until 1 July 2022.

Equal remuneration order rates
The final rates of pay resulting from the equal remuneration order [PR525485] which applies to SACS employees and crisis accommodation employees will be set out in clause 15.

Damaged clothing
Two new provisions will be introduced for an employer to cover the reasonable costs associated with the cleaning or replacement of personal clothing which has been soiled or damaged in the course of employment.

The Laundering of clothing other than uniforms clause will require a laundry allowance of $0.32 cents per shift to be paid to an employee where their clothing (other than a uniform) is soiled during the performance of their duties during any day or shift.

The Repair and replacement of clothing other than uniforms clause will require that where the clothing of an employee is soiled or damaged (excluding normal wear and tear) during the performance of their duties, to the extent that its repair or replacement is necessary, the employee must be reimbursed for the reasonable cost incurred in repairing or replacing their clothing with a substitute item.

On call allowance
The existing on call allowance clause will be varied to clarify that it is payable to an employee required to be available for recall to duty not only at the employer’s or client’s premises, but also for remote work. Furthermore, in the January 2022 Decision, the Commission decided to retain existing wording to confirm that Friday evening periods or Monday morning periods are not excluded from the application of the on call allowance. The payment for the allowance itself will remain the same.

Broken shifts and broken shift allowance
The existing broken shifts clause will be varied to:
  • limit the use of broken shifts to a maximum of two portions of work (and one unpaid break) or, by agreement with an individual employee, a maximum of three portions of work (and two unpaid breaks in between); and
  • make it clear that the minimum engagement period (or minimum payment) will apply for each portion of work in a broken shift.

A broken shift allowance will be introduced to compensate employees for the disutility associated with performing broken shifts. The broken shift allowance will be:
  • 1.7% of the standard rate ($17.53) for broken shifts involving one unpaid break (two portions of work), and
  • 2.25% of the standard rate ($23.20) where the broken shift involves two unpaid breaks (three portions of work).

Travel time
Travel time under the SCHADS Award has historically been a contentious issue and in the August 2021 Decision, the FWC decided to defer further consideration of the travel time issue until the changes in respect of minimum payment periods and broken shifts had been effective for 12 months. This was decided given that the additional travel time associated with presenting for work on 2 occasions was taken into consideration when the quantum of the broken shift allowances were decided upon.

Change in roster
The existing change in roster clause will be varied to include an additional provision which allows for a roster to be altered at any time if the change is proposed by an employee to accommodate an agreed shift swap with another employee, subject to the agreement of the employer.

Client cancellation
The existing client cancellation clause will be varied to also apply to employers and permanent employees in the disability services stream (no longer home care stream only). The client cancellation provision would apply where a client cancels or reschedules a scheduled service with less than 7 days’ notice. Employers would be allowed to either:
  • (a) redeploy the employee to perform other work during those hours in which they were rostered,
  • (b) cancel the rostered shift of the affected part of the shift.

Where (a) applies, the employee would be entitled to payment for the amount payable had the employee performed the cancelled or rescheduled service or the amount payable in respect of the work actually performed, which ever is greater.

Where (b) applies, the employer must either pay the employee the amount they would have received had the shift or part of the shift not been cancelled, or provide the employee with make-up time. For the latter to apply, the employee needs to be notified of the cancelled shift (or part thereof) at least 12 hours prior to the commencement of the scheduled service cancelled. If less than 12 hours, notice is provided, the employer must provide the employee with 7 days’ notice of the make-up time unless otherwise agreed.

Other items to note in relation to make-up time include:
  • the make-up time must be worked within 6 weeks of the date of the cancelled or rescheduled service;
  • employers must comply with consultation obligations about changes to rosters or hours of work regarding when the make-up time is to be worked;
  • make-up time can include work with other clients or in other areas of the employer’s business provided the employee has the skill and competence to perform the work; and
  • an employee who works make-up time will be paid the amount payable had the employee performed the cancelled (or rescheduled) service or the amount payable in respect of the work actually performed, whichever is the greater.

A very minor amendment to the existing sleepover clause 10.3(c) will be amended to include the wording ‘access to food preparation facilities’ to ensure employees are entitled to basic facilities during a sleepover shift.

24-hour care
The existing 24-hour care clause will 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 24-hour care shift;
  • entitle employees to basic facilities; and
  • make it clear that where an employee performs more than 8 hours’ work during a 24-hour care shift, that additional work will trigger overtime payments.

Quantum of leave
The existing quantum of leave clause will be amended to provide that employees who have worked at least eight 24-hour care shifts (‘during the yearly period in respect of which their annual leave accrues’) are shift workers for the purposes of the entitlement to an additional week’s annual leave.

Remote work
A new remote work clause will be introduced which applies where an employee is required by their employer to perform remote work. The definition of remote work means the performance of work by an employee at the direction of (or with the authorisation of) their employer that is:
  • (i) beyond their ordinary hours of work rostered under clause 25.5 (or, in the case of casual employees, not a designated shift); and
  • (ii) not additional hours worked by a part-time employee under clause 28.1(b)(iii) or 10.3(e) or overtime contiguous with a rostered shift; and
  • (iii) not required to be performed at a designated workplace.

Employees will be paid for the time spent performing remote work, with minimum payments applying according to whether the employee is on call, the scheduled time they are on call, and whether the remote work involves participating in staff meetings or staff training remotely. Remote work will be paid at the employee’s minimum hourly rate unless one of the exceptions detailed under the new clause applies. For further information on the remote work clause, see item 20 of the determination.

Overtime rates
The existing overtime rates clause will be amended to set out that where an employee who meets the definition of ‘day worker’ under the SCHADS Award, performs work outside of the ordinary span of hours (including as part of a period of work in a broken shift), overtime rates will be payable for such work.

Recall to work overtime
The existing recall to work overtime clause will be varied to remove the reference ‘employer’s or client’s premises' and be replaced with ‘workplace’ to confirm the provision’s applicability for remote work which is in line with the amendments made to the existing on call allowance clause and the new remote work clause.

When will the changes come into effect?

The transitional arrangements applying to minimum payments for part-time employees came into operation from the first full pay period on or after 1 February 2022.

All other changes come into operation from the first full pay period on or after 1 July 2022.

To view the full decision click here.

To view the full determination click here.

Further information

To view the varied Award from the operative date above click here

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