The Fair Work Commission's Full Bench (FB) recently handed down some preliminary views about changes to the Social Community Home Care and Disability Service Award. The draft decisions are proposed to come into effect from 1 October 2021 but are still subject to final submissions from employers and unions.
At this stage, the draft decisions are very favourable for workers. They address key issues within the modern award that are unfair for workers. HACSU along with other unions have fought hard for these much-needed changes to improve your working conditions. While it's not certain yet, we're certainly on the right track. A summary of the preliminary changes is below:
1. Minimum engagement
a. The Full Bench of the FWC accepted there was a need for minimum engagement that applies to part-time and casual employees, and have provided three hours for SACS employees and two hours for all others.
b. Minimum hours previously only applied to casuals, and for employees under Schedule E – Home Care at only one hour.
c. The employers have proposed a minimum engagement of one hour for training, staff meetings etc. and will be able to present further evidence & argument.
2. Broken shifts
a. The FB’s view is that broken shifts must:
i. be defined as “consisting of two separate periods of work with a single unpaid ‘break’ (other than a meal break)”
ii. clarify interaction with minimum engagement
iii. provide for an ‘occasional’ need for more than one break with:
1) maximum of two breaks
2) employee agreement, and
3) additional payment
b. Allowance applies tobroken shift (provisional):
i. 1.7% standard rate per shift ($17.10) for a single break
ii. 2.5% per shift ($25.15) for two breaks
c. The time that day workers working outside the span of hours is counted as “overtime”.
d. The FB also noted the broken shift allowance is for the disutility of
i. The length of the day because hours are not continuous, and
ii. The added cost of travel for presenting more than once for work
3. Travel time
a. FB accepted the view that minimum engagement, broken shifts & travel time are interrelated and that the first two will alone result in changes to rostering practices and changes to the extent of unpaid travel time.
b. The FB accept (as a general principle) the view that employees should be compensated for time travelling between engagements.
c. A simple clause is wanted to take into account the needs of the low-paid, and the impact on costs ®ulatory burden.
d. A conference will be convened.
4. Roster changes
· The FB accepted merit of enabling employee-agreed shift swaps and agreed there should be capable of being accommodated.
5. Remote response/recall to work
a. The FB accepted that a term should be introduced and expressed the following views:
i. A short minimum payment for an employee receiving an on-call allowance (expressed the other way by the union claims).
ii. Each separate call may not trigger a separate minimum payment.
iii. A definition of ‘remote response work’ or ‘remote response duties’ should be inserted in the Award.
iv. A recording mechanism is needed.
b. The definition will probably look like this:
In this award, remote response duties mean the performance of the following activities:
i. Responding to phone calls, messages or emails;
ii. Providing advice (“phone fixes”);
iii. Arranging call out/rosters of other employees; and
iv. Remotely monitoring and/or addressing issues by remote telephone and/or computer access.
c. Provisionally the minimum call between 6am – 8pm would be 30 minutes and minimum call between 10pm – 6am would be one hour.
d. A conference will be convened.
6. Client cancellation
a. Business representatives sought to provide options under client cancellation ensuring that an employee is paid, but:
i. The employer can direct the employee to perform other work during the same hours and pay the employee the initial shift or the new work whichever is greater, or
ii. Cancel the shift, and pay the employee what they would have received, or provide make-up time within three months, rostered after consultation with the employee.
b. The FB accepted this with modifications:
i. Make-uptime can only be used where the employee was notified of the cancellation at least 12 hours prior, and
ii. The make-up time must be rostered within six weeks.
a. The bench accepted there should be a modification to provide employees with reasonable cleaning and replacement costs for clothes.
b. The parties are to confer on the words.
8. Overtime for part-time workers
· The FB decided changes should be made to provide the following:
i. Clarity that working additional hours (to their contracted ones) is voluntary, and
ii. Introduce a mechanism for review of guaranteed hours where they consistently work above; employers cannot unreasonably refuse a request.
9. 24-hour clause
· This clause is to be retained, but it requires variation:
i. It only applies to ‘home care employees’.
ii. Workers can only be required to work a 24-hour shift by agreement.
iii. Employees are to be able to sleep uninterrupted for 8 hours, and to be provided with a separate room, use of facilities etc., plus free board and lodging for each night.
iv. It will be available over a 24-hour period with only 8 hours of work.
v. No change to the rate.
vi. Any work in addition to 8 hours will be treated as overtime.
vii. An employee may refuse to do more than 8 hours of work.
10. Quantum of leave
· For the purposes of entitlement to five weeks leave, an employee must work:
i. Four ordinary hours on ten or more weekends, or
ii. Eight24-hour shifts.
· The sleepover clause will be varied to provide access to clean bed linen and food preparation facilities.
12. ERO rates
· This will be set out in a note to clause 15 of the SCHADS Award.
Where to from here?
The next steps following the draft decisions are:
· Conference on 27 May about:
i. Travel time
ii. Remote response/recall to work
iii. Clothing and equipment
· Submissions and evidence to draft determinations due on 22 June
· Hearing on 30 June
HACSU will keep you up to date as this matter continues, but please give us a call if you would like more info. Please note these changes won't automatically flow onto you if you're on a workplace agreement, but they will be important for your next agreement negotiations.
After learning that Able, a disability provider, systematically rostered staff to perform 9-hour sleepovers in breach of their agreement and the Award, we told them they must back pay affected staff. Affected Able staff will now be paid for the time worked over 8 hours per sleepover as time worked at the relevant rate of pay.
While we were sorting out the issue with Able, we uncovered that another provider, Multicap, has done the same thing.
HACSU has written to Multicap and reminded them of this serious breach of the Award which only allows for 8-hour sleepovers. We’ve also asked for a full audit of all sleepover hours performed at all Multicap sleepover worksites, so that we can get backpay for all affected staff both past and present as a matter of urgency.
Multicap are now in the process of doing the audit and will let us know once they complete it.
If you come across the same issue in your workplace, do not hesitate to contact us.
Uncovering errors in workplaces and protecting workers’ rights are something that HACSU will continue to do, and that’s just another reason to be in your union.
With things happening in the disability sector like the winding up of companies and some organisations dropping services, not to mention the new Fair Work ruling that now requires workers to have a 10-hour break between shifts, a number of employers have to redo their rosters.
When your employer closes a service or loses a client, they may not look out for your best interest. If your contracted hours are less than the hours that you are actually working, chances are that you’re going to be short of hours after the roster change and you’ll lose a significant amount of take-home pay.
A real-world example is that one organisation that owns two different entities has decided to amalgamate them. In doing so, they need to transfer staff to another organisation but there is no guarantee that all clients will transfer over to the other organisation. This means workers will have fewer rostered hours.
We also have a provider closing down a couple of services so the affected staff need to find other work within the organisation.
We can negotiate with the employer that they should honour the workers’ previous rostered hours, but they’ll only be obligated to give you the same hours if your contract matches your roster.
With this in mind, it is extremely important to make sure your contracted hours match the hours that you regularly work. If that is not the case for you, you should get in touch with HACSUassist for advice or help.
We recently found that Community Based Support have been issuing staff updated dodgy contracts inline with their work availability. We questioned why CBS is trying to change workers’ current contracts if they don’t want to or even need to.
We’ve told our members not to sign any new contract until they’ve discussed it with us.
Interestingly the employer has come out in response to our question by saying that new contracts are only offered when staff request a change to their employment arrangements.
There are occasions where you may need to change your availability to attend to changed personal and family circumstances, but even if that’s the case, you should never need to be issued a new contract stating new conditions and potential reductions in your entitlements.
As a HACSU member you should always get advice from our team before agreeing to or signing anything employment-related.
If you’re not sure what your employer is asking you to do, use your membership and call us.
If you need anymore information, just give us a call on 1300 880 032 or reply to this email.