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Recent FWC decision provides no relief for aged care and community service providers

06 Jul 2017

The Fair Work Commission has rejected applications on behalf of aged care, community and disability service providers to adjust part time hours of work clauses in the Social, Community, Home Care, and Disability Services Industry Award (Award).

Providers had argued that greater flexibility was required regarding fixing part-time hours in order to enable businesses to implement the NDIS and reduce the increasing casualization of the aged care and community sector workforces.

The Commission declined to amend the Award to allow such flexibility stating that the amendment wasn’t necessary to achieve the modern award objective. In the Commission’s view the evidence did not support the proposition that part-time employment had become “unworkable” and whilst the Commission accepted that, since the roll out of the NDIS, there had been an increase in the rate of casual employment in the sector, it was of the view that it was too early in the implementation of the NDIS to conclude that this is a permanent trend.

The Commission also expressed the view that the part-time employment provisions in the Award were already relatively flexible noting that part-time hours can be increased in line with demand provided there is agreement with the employee; and that in such cases overtime rates wouldn’t apply until after the employee had worked full-time hours in any event. The Commission also noted that there was no minimum engagement period for part-time employees which in some ways means that part-time employment is more flexible than casual employment.

All in all the Commission found that the basic elements of the NDIS lend themselves to reasonably practicable workforce planning and therefore it was not convinced that further flexibility was required. The Commission did, however, leave the door open on future applications for flexibility changes once the NDIS has been fully implemented.

Whilst this decision is disappointing for providers, there are things that providers can do to help them meet their obligations to staff whilst still implementing the NDIS.

In particular, providers should take care to ensure that their service agreements:

  • provide for minimum service periods - which reflect minimum engagement periods under the Award;
  • require consumers to give notice if they wish to cancel their service – such period being sufficient so that the provider can meet the notice requirement to staff under the Award;
  • impose a financial penalty on the consumer when they fail to provide the required notice; and
  • enable the service provider to review care and service plans in the event of excessive cancellations or to terminate the arrangement becomes impracticable or financially unviable.

Essentially, providers need to have a good understanding of their obligations under the Award and then ensure that their service agreements are drafted in a way that protects the provider from the costs associated with last minute changes or cancellations to services.

Our Aged Care and Workplace Relations teams can help you better understand your obligations under the applicable awards and prepare service agreements that help protect the business. Please contact Julie McStay, Director Practice Group Leader – Aged Care or Kristin Ramsey, Practice Group Leader – Employment and Workplace Relations if you would like assistance in this area.


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