1 Fair Work Act 2009 s.160—Variation of modern award s.157 - Application to vary a modern award Application by The Australian Industry Group (AM2023/28) Application by Parkerville Children and Youth Care Incorporated (AM2024/16) Application by Australian Municipal, Administrative, Clerical and Services Union & Others (AM2024/30) SOCIAL, COMMUNITY, HOME CARE AND DISABILITY SERVICES INDUSTRY AWARD 2010 [MA000100] Social, community, home care and disability services VICE PRESIDENT GIBIAN DEPUTY PRESIDENT DOBSON COMMISSIONER PERICA SYDNEY, 25 SEPTEMBER 2024 Applications to vary the Social, Community, Home Care and Disability Services Industry Award 2010. [1] Three applications are presently before an Expert Panel for the Care and Community Sector each seeking variations to be made to the Social, Community, Home Care and Disability Services Award 2010 (the SCHADS Award). Those applications have been made, respectively, by the Australian Industry Group (Ai Group), Parkerville Children and Youth Care Incorporated (Parkerville) and a group of unions comprising the Australian Municipal, Administrative, Clerical and Services Union (ASU), the Health Services Union (HSU), the Australian Workers’ Union (AWU), the United Workers’ Union (UWU) and the Community and Public Sector Union (CPSU). Most aspects of the respective applications are listed for hearing in Sydney from 4 to 6 November 2024. [2] One aspect of the application made by Parkerville is described as seeking to clarify award coverage in respect of persons undertaking therapeutic care duties in the social and [2024] FWCFB 385 DECISION f_p_n_1_ [2024] FWCFB 385 2 community services sector. The grounds relied upon by Parkerville in support of that aspect of its application are as follows: Award coverage of Therapeutic Carers 1. For 120 years, Parkerville (a not-for-profit association) has advocated, supported and provided specialist care and services to vulnerable children, young people, adults and their families in Western Australia. 2. Those services include provision of residential care arrangements outside of the family home to children who need protection and care. This is primarily facilitated through Parkerville’s Group Foster Care Program (Program). As part of that Program, Parkerville operates Group Foster Care Homes (Homes). Each Home can accommodate up to four child or youth residents. As of 30 June 2022, Parkerville provided out of home care (through its Homes, foster care and youth accommodation programs) to 163 children and young people. 3. Parkerville employs Therapeutic Carers to care for children and young people living in its Homes (residents). 4. The principal duty of a Therapeutic Carer is to provide direct care to residents. This includes assisting residents dress, cooking / preparing meals, performance of domestic duties (cleaning rooms, washing, purchasing school supplies), assisting with schoolwork and arranging / supervising recreational activities. Therapeutic Carers also perform clerical and administrative work allied to provision of these services. 5. The care provided to the residents is trauma informed, attachment based therapeutic care. This specialised care aims to enable residents who have been the victim of family violence or sexual abuse to form appropriate attachment to an adult. To achieve the objective of such care a Therapeutic Carer is required to live in such an out of home care residence and provide care, or be available to provide care, to residents for the duration of a rostered-on period, typically of seven days, followed by seven days rostered off work. 6. The Award relevantly covers employers throughout Australia in the social and community services sector (which Parkerville operates in), and their employees in the classifications listed in Schedule B, to the exclusion of any other modern award (see clause 4.1). 7. However, whether Therapeutic Carers fall within the classifications listed in Schedule B is ambiguous and / or uncertain. 8. Several of the key responsibilities of Therapeutic Carers are described in Schedule B but are expressed to apply only in relation to the delivery of disability services. 9. These include: (a) resident contact and interaction including attending to their personal care or undertaking generic domestic duties under direct or routine supervision and either individually or as part of a team as part of the delivery of disability services (B.1.2(g)); (b) preparation of the full range of domestic duties including cleaning and food service, assistance to residents in carrying out personal care tasks under general supervision either individually or as part of a team as part of the delivery of disability services (B.1.2(h)); (c) supervising or providing a wide range of personal care services to residents under limited supervision either individually or as part of a team as part of the delivery of disability services (B.2.2(l)); and (d) assisting in the development or implementation of resident care plans or the planning, cooking or preparation of the full range of meals under limited supervision either individually or as part of a team as part of the delivery of disability services (B.2.2(m)). f_p_n_2_ [2024] FWCFB 385 3 10. The identification of those duties in relation to the delivery of disability services, but not in relation to the provision of social and community services work more broadly, gives rise to an ambiguity and / or uncertainty as to whether the Award covers Therapeutic Carers. 11. That ambiguity and / or uncertainty is compounded by award coverage of Therapeutic Carers historically, which occurred in limited circumstances and by express reference to the duties performed. Variation to remove ambiguity or uncertainty or to achieve modern awards objective 12. The Award should be varied pursuant to s 160(1) of the FW Act to remove the ambiguity and / or uncertainty by making clear that the coverage of the Award extends to Therapeutic Carers. 13. That variation is appropriate to ensure that employers have clarity regarding the coverage of persons providing out of home care to children and youth in the social and community services sector. 14. Alternatively, if the Commission does not consider the coverage of Therapeutic Carers to be ambiguous or uncertain, the proposed variation should be made pursuant to s 157(1)(a) of the FW Act on the basis that it is necessary to do so in order to achieve the modern awards objective, specifically the need to ensure a simple, easy to understand, stable and sustainable modern award system (see s 134(1)(g) of the FW Act). [3] In a decision of the President, Justice Hatcher, made on 1 August 2024,1 a draft determination was issued dealing with the variation sought by Parkerville in relation to therapeutic care. The decision indicated as follows: [25] A draft determination to vary the SCHADS Award pursuant to item (a) of Parkerville’s application is published together with this decision. Any party which opposes this part of the application shall file submissions indicating the basis of this opposition by 4:00 pm (AEST) on Friday, 23 August 2024. If no submissions are received in opposition to the draft determination by that date, the Commission may proceed to make the variation without further notice to the parties. [4] No submissions were received in response to the draft determination. Accordingly, we confirm that we are satisfied that the draft determination can be made. We consider the variations are necessary pursuant to s 160 of the Act to remove an ambiguity or uncertainty to make clear that the coverage of the SCHADS Award extends to therapeutic carers. [5] Consistent with the draft determination, the Award is varied as follows: 1. By deleting the words ‘provision of disability services including the provision of personal care’ in the definition for social and community services sector in clause 3.1 and inserting ‘provision of social, community or disability services including the provision of personal care including therapeutic care’. 2. By inserting the words ‘social, community or’ before the words ‘disability services’ in clause B.1.2.(g). 1 [2024] FWC 2045 at [25]. f_p_n_3_ [2024] FWCFB 385 4 3. By inserting the words ‘social, community or’ before the words ‘disability services’ in clause B.1.2(h). 4. By inserting the words ‘social, community or’ before the words ‘disability services’ in clause B.2.2(l). 5. By inserting the words ‘social, community or’ before ‘disability services’ in clause B.2.2(m). [6] A determination varying the Award as set out above is published with this decision. The determination will operate from today, 25 September 2024. VICE PRESIDENT Printed by authority of the Commonwealth Government Printer <PR779591> f_p_n_4_