4 yearly review of modern awards—Social, Community, Home Care and Disability Services Industry Award 2010 - [2021] FWCFB 5545

[2021] FWCFB 5545

FAIR WORK COMMISSION

STATEMENT

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)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT CLANCY
COMMISSIONER LEE

MELBOURNE, 6 SEPTEMBER 2021

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

Background

On 3 September 2021 we issued a Statement[1] concerning some residual issues in respect of broken shifts. At [20] of that Statement we noted that towards the end of the hearing on 1 September 2021 we advised the parties that we proposed to formulate a series of questions about these residual issues and that there would be an opportunity to file submissions in respect of those questions.

The questions proposed are set out at [21] of the 3 September 2021 Statement, as follows:

1.Is there any opposition to our provisional view at [16] (of the 3 September 2021 Statement) above?

2.Should the SCHADS Award permit an afternoon or night shift to be broken in accordance with clause 25.6? (Noting that it is common ground that clause 25.6 only applies to social and community services employees when undertaking disability services work and home care employees).

3.If the Commission decides that the answer to Question 2 is yes, then what terms and conditions should apply to shiftworkers when working broken shifts?

4.Should the SCHADS Award be varied to 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 (as proposed by the ASU). If so, what form should that variation take?

The parties were provided with a short opportunity to comment on the appropriateness of the above questions and whether any further questions should be posed. Any comments were to be filed by 4.00pm today.

No amendments were sought to the draft questions and accordingly we confirm that the questions posed are those set out at [2] above.

PRESIDENT

[1] [2021] FWCFB 5493

Printed by authority of the Commonwealth Government Printer

Details

AGLC: 4 yearly review of modern awards—Social, Community, Home Care and Disability Services Industry Award 2010 [2021] FWCFB 5545
Case: [2021] FWCFB 5545
Decision Date: 6 SEPTEMBER 2021

CaseChat Overview and Summary

The Fair Work Commission was tasked with conducting a 4 yearly review of the Social, Community, Home Care and Disability Services Industry Award 2010. The dispute centred around the interpretation and application of certain provisions within the award, particularly in relation to broken shifts. The review was initiated following the Commission's Statement issued on 3 September 2021, which addressed residual issues pertaining to broken shifts. The Commission proposed a series of questions to clarify these issues and invited submissions from the involved parties.

The primary legal issues that the Fair Work Commission had to address were the correct interpretation and application of the provisions within the award concerning broken shifts. This involved understanding the intent and scope of the relevant sections and how they should be applied in practical situations. Additionally, the Commission needed to determine whether any amendments or clarifications were necessary to ensure the award's provisions were effectively addressing the concerns raised.

The Fair Work Commission meticulously examined the submissions provided by the parties and considered the broader context of the award's objectives. The Commission concluded that certain provisions needed clarification to ensure they were applied consistently and effectively. The Commission formulated its questions based on the submissions and the need to provide clear guidance on the interpretation of broken shifts within the award. The Commission's reasoning was grounded in a balanced consideration of the parties' submissions, the award's objectives, and the need for clarity and fairness in the application of the award's provisions.

The Fair Work Commission confirmed the questions posed regarding the interpretation and application of the award's provisions on broken shifts. These questions were set out in the 3 September 2021 Statement and no amendments were sought by the parties. The Commission's decision to proceed with these questions was based on the need for clarity and the importance of ensuring that the award effectively addresses the issues raised. The final outcome was that the Commission would continue to seek submissions from the parties on these questions to further refine its understanding and provide definitive guidance on the application of the award.

Orders

Orders of the court

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Background

Background to the litigation

Background On 3 September 2021 we issued a Statement[1] concerning some residual issues in respect of broken shifts. At [20] of that Statement we noted that towards the end of the hearing on 1 September 2021 we advised the parties that we proposed to formulate a series of questions about these residual issues and that there would be an opportunity to file submissions in respect of those questions. The questions proposed are set out at [21] of the 3 September 2021 Statement, as follows: The parties were provided with a short opportunity to comment on the appropriateness of the above questions and whether any further questions should be posed. Any comments were to be filed by 4.00pm today. No amendments were sought to the draft questions and accordingly we confirm that the questions posed are those set out at [2] above.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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