ANRA and AMRANZ Advocacy Updates
Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADs Award) Update
On 31 January this year, the Fair Work Commission (FWC), as part of their 4 yearly review of the SCHADs Award, handed down a significant determination.
This determination means several changes that members who employ under this Award must be aware of. It is important to note that these changes will come into effect from 1 July 2022, or the first pay period following this date.
The changes are as follows:
· Minimum engagement and payment for part-time and casual employees: From 1 July 2022, part-time and casual employees will need to be rostered (or at least paid) for the following minimum number of hours, at the appropriate rate, for each shift or period of work in a broken shift:
a) Social and community service employees (except when undertaking disability services work) – 3 hours;
b) All other employees – 2 hours.
There is a transitional period that applies from 1 February 2022 to 1 October 2022 for all arrangements in place before 1 February. This gives employers and employees time to negotiate changes to shifts.
· On-call allowance: An employee required by the employer to be on call (i.e. available for recall to duty at the employer’s or clients premises and/or for remote work) will be paid an allowance of:
a) 2.0% of the standard rate ($20.63) for any 24-hour period or part thereof during the period from the time of finishing ordinary duty on Monday to the time of finishing ordinary duty on Friday;
b) 3.96% of the standard rate ($40.84) in respect of any other 24-hour period or part thereof, or any public holiday or part thereof.
· Remote response work: Remote work is defined as the performance of work by an employee at the direction of their employer that is not part of their ordinary hours of work rostered, not additional hours worked by a part-time employee or overtime contiguous with a rostered shift, and not required to be performed at a designated workplace. Under the changes, where an employee performs remote work, they will be paid for the time spent performing remote work, with the following minimum payments applying:
a) employees who are on call between 6:00am – 10:00pm are required to be paid a minimum payment of 15 mins pay,
b) employees on call between 10:00pm – 6:00am are required to be paid a minimum of 30 mins pay;
c) where the employee is not on call, a minimum payment of one hour’s pay; and
d) where the remote work involves participating in staff meetings or staff training remotely, a minimum payment of one hour’s pay.
Moreover, remote work performed outside and above certain hours, and on certain days, will be paid at different rates. These rates reach up to 275% of the minimum hourly rate.
· Workers to be paid for broken shifts: A broken shift is defined as a shift with one or more breaks (that aren’t meal breaks) within a 12-hour period. For example, if a worker is rostered from 8am to 11am, then 2pm to 6pm, that would be considered a broken shift. Under the changes, workers will now be paid an additional allowance of 1.7% ($17.53) of the standard rate per broken shift. An employee who agrees to work a broken shift with 2 unpaid breaks will be paid an allowance of 2.25% ($23.20) of the standard rate, per broken shift.
· Worker reimbursement for client cancellations: Under the changes, if a client cancels a schedule home care or disability service, within 7 days of the scheduled service, which a full-time or part-time employee was rostered to provide, the employer may either:
a) Direct the employee to perform other work during those hours in which they were rostered. In this case, the employee will be paid the amount payable had the employee performed the cancelled service or the amount payable in respect of the work actually performed (whichever is greater); or
b) Cancel the rostered shift or the affected part of the shift. In this case, the employer must either pay the employee the amount they would have received had the shift or part of the shift not been cancelled or provide make-up time (to which several conditions apply and can be found in clause 25.5 (f)(vi)).
· Right for part-time employees to request to increase their part-time hours: Where a part-time employee has worked more than their guaranteed hours for at least 12 months, the employee has a right to request to increase their guaranteed hours, which can only be refused by an employer on reasonable business grounds.
· 24-hour care (only applies to home care employees): A 24-hour care shift requires an employee to be available for duty in a client’s home for a 24-hour period. The employee is required to provide a total of no more than 8 hours of care during this period. These shifts can only be required of an employee by agreement. The employee will be allowed to sleep for a continuous period of 8 hours during the shift and will be provided a separate room with a bed, clean linen, and access to the appropriate facilities. They will be paid 8 hours’ work at 155% of their appropriate rate for each 24-hour period. If they are required to perform more than 8 hours’ work, that work shall be treated as overtime and paid at the rate of time and a half for the first 2 hours and double time thereafter etc.
· Laundering of clothing other than uniforms: If during any day or shift, the clothing of an employee (other than a uniform) is soiled during the performance of their duties, the employee will be paid a laundry allowance of $0.32 cents per shift provided they have evidence that this occurred and that they complied with any reasonable requirement of the employer in relation to the wearing of personal protecting equipment either provided or paid for by the employer.
The full determination can be accessed here. Additionally, members are encouraged to use the Workforce Information Line (WIL), operated by our legal partners at FCB Law for any questions they have regarding the above changes. Members simply need to dial 1300 988 685 and quote their corporate ID number to receive assistance.
Australian Health Practitioner Regulation Agency (AHPRA) Candidate Pool
As some ANRA members may be aware, earlier this year the Department of Health sent out an Expression of Interest (EOI) to individuals on the AHPRA Sub-Register and Register asking if they were willing to re-join the health workforce through RCSA and our member-agencies. Those who respond are uploaded onto the Role Relay Platform which allows agencies to scroll through and locate candidates, claim them, and then place them.
As of today, we have a total of 1,311 candidates on the platform, with more to come. At this stage, this number is made up of RN’s, EN’s and EEN’s, and we are looking at the possibility of Allied Health Professionals also joining. This has been a fruitful exercise in plugging the gaps that have been created due to the spread of Omicron, especially at the start of this year.
RCSA is always looking for additional ANRA members to take on and place these candidates and welcome any members who are interested in the AHPRA Candidate Pool to contact Angela Morris at email@example.com or on 0499 074 524.
Guidance on Independent Contractors
As members may be aware, in February this year High Court issued two significant decisions dealing with the question of independent contractor vs employee.
In the matters of Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd  HCA 1 and ZG Operations & Anor V Jamsek & Ors  HCA 2, the Court overturned the preceding decisions of the Full Federal Court, and while the outcomes diverged, the fundamental finding was the same – significant weight should be placed on the contractual documents that exist between the parties in determining the nature of their relationship.
This represents a shift in this area of law, which will impact how businesses engage contractors. While we are a long way from having certainty in the contractor engagement parameters, the decisions do strongly highlight that a comprehensive contract is a critical component of a contractor model.
Given this, RCSA strongly advises members to review, and if necessary, update, their independent contracting arrangements. To assist members in this and ensure that, considering these decisions, they are engaging and retaining independent contractors correctly, RCSA held a webinar with our employment law advisors, FCB, on Tuesday, 1 March 2022. Members who were unable to attend the live webinar can download the recording here free of charge.
We have also established an Independent Contracting Resource Pack which can help members distinguish the difference between employees and independent contractors by looking at engagement tips and traps.
Members with immediate questions about their independent contracting arrangements are encouraged to contact the RCSA’s Workforce Information Line (WIL) on 1300 988 685.
FCB have drafted this member memo to explain the High Court’s decisions in further detail.
Restraints of Trade and Retention of Vaccination Certificates Guidance Notes
At our last AMRANZ Council meeting, members noted two topics that required clarification and guidance from RCSA:
a) Restraints of Trade; and
RCSA have published guidance notes on both topics, which have been linked above. Members can download these notes free of charge from our website.
Again, if members do have any outstanding questions after reading these documents, we encourage you to contact our Workforce Information Line (WIL) on 1300 988 685.
Additionally, if members have any questions or concerns outside of the above, we invite you to connect with Ines Hage Nebyl in the Advocacy Team at firstname.lastname@example.org or on 0448 332 610.