FWC denies COVID amendments for Social, Community, Home Care and Disability Services employees

Since the start of the COVID-19 pandemic, the FWC has considered a range of temporary provisions for inclusion into industry awards, to assist in managing the effects of the virus on workplaces and employees. But not all the applications for award variation are being granted, as can be seen in the latest FWC award variation decision.

Application to FWC

The most recent FWC decision arises from an application by:

• the Australian Municipal, Administrative, Clerical and Services Union (ASU);
• the Health Services Union (HSU);
• the United Workers Union (UWU); and
• National Disability Services (NDS),

to add a new temporary COVID related clause, providing for an additional ‘Care Allowance’ for award covered employees working in social and community services, undertaking disability services work. Under the proposed clause:

“Where an employer requires an employee to work in personal contact with a client who:

1. is required by government or medical authorities to self-isolate in response to the COVID-19 Pandemic;
2. is required on the advice of a medical practitioner to self isolate in response to the COVID-19 Pandemic;
3. the employer reasonably suspects has COVID-19; or
4. has COVID-19,

the employee will be paid an hourly allowance of 0.5% percent of the Standard Rate.

The additional payment would have resulted in disability support workers receiving an additional $5.03 per hour if the terms of the clause applied to them.

Objections

Submissions opposing the application were filed by Australian Business Industrial and the NSW Business Chamber (ABI), the Australian Industry Group (Ai Group) and the Australian Federation of Employers and Industries (AFEI), who argued that the proposed allowance “was not likely to have any appreciable impact on employment growth, inflation and the sustainability, performance and competitiveness of the national economy” and was not linked to conduct that necessarily created a higher risk to employees, nor was the risk unique to the disability sector.

Employers presenting evidence in the hearing of the matter, drew attention to the high standards of infection control implemented in response to the pandemic that resulted in increased costs to employers and the effective control of risks relating to virus transmission that significantly reduced risks for employees. The opposing statements also submitted that the financial impact for employer organisations facing restrictions in their activities, would further reduce income and make the additional payment untenable in a sector reliant on limited government funding.  

Ministerial intervention

The Minister for the NDIS, Stuart Robert, also filed a submission regarding funding issues, outlining additional COVID-19 support measures specific to providers. The Minister submitted that “depending on the Commission’s final determination, a number of Commonwealth programs which fund disability support services could also be impacted” adversely and that generally the further payment may also negatively impact on existing NDIS providers' ability to deliver services.

FWC decision

The FWC observed that the exercise of modern award powers in this case would not have any macro-level economic effects on employment growth, inflation and the sustainability, performance and competitiveness of the national economy, required considerations under the Fair Work Act 2009.

The FWC considered that the evidence presented suggests that employers had demonstrated the capacity to deal with the issues at the enterprise level, referring to Aruma and Lifestyle Solutions management of their experiences.

The FWC resolved to disallow the proposal on the basis that:

1. the circumstances in which the proposed allowance would be payable are comparatively rare and temporary, calling into question whether the exercise of modern awards powers is a necessary and proportionate response in this instance;
2. the proposed allowance would impose an additional cost on disability service providers that is likely not recoverable through the NDIS, and which would operate on top of other additional costs that would arise in the management of the pandemic; and
3. the circumstances are for all practical purposes indistinguishable from those applying in other sectors where such an allowance is not applied.

Ultimately, the FWC could not identify a basis to award the proposed allowance for disability service employees only, and were concerned that in granting the claim, the floodgates would be opened to similar applications under other awards.

If you require advice about the operation of the Social, Community, Home Care and Disability Services Industry Award 2010 or other awards affect your operations, our team can assist you. You can contact us at 07 3160 0010 or reception@nfplawyers.com.au.

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