Following a number of recent decisions by the Fair Work Commission, significant changes are coming to the Social, Community, Home Care, and Disability Services Industry Award 2010 (the SCHADS Award) from 1 July 2022. We will be providing full details of the changes in a separate article shortly, but a brief summary is stated at the end of this article.
In advance of the major changes, there will also be a discreet change to the SCHADS Award that will apply from 1 February 2022 concerning minimum payments for part-time employees.
Changes to minimum engagement/ payment periods for part-time employees from 1 July 2022
The SCHADS Award currently provides at clause 10.3(c) that before commencing employment, a part-time must be given a written agreement confirming:
(i) a regular pattern of work including the number of hours to be worked each week, and
(ii) the days of the week the employee will work and the starting and finishing times each day.
This can only be changed by agreement in writing.
The SCHADS Award does not currently contain any rules about the minimum number of hours a part-time employee must be paid for in a day (contrast the situation for casual employees who are subject to rules about minimum numbers of hours that they must be paid for – see clause 10.4(b)). In other words, it is currently possible to roster a part-time employee to work only (for example) one hour in a day, and only pay them for one hour of work.
There are also no rules about the minimum periods for the separate parts of a broken shift (eg where an employee works one period in the morning and then another period later in the day).
From 1 July 2022 one of the major changes that will be introduced into the SCHADS Award is new rules about minimum payment periods for part-time employees. These will stipulate that for each shift or period of work in a broken shift, part-time employees must be paid the following amounts:
- 3 hours for social and community services employees (except when undertaking disability services work);
- 2 hours for all other employees
These changes will also apply to causal employees, which means that from 1 July, home care employees will be subject to a minimum payment period of 2 hours (currently the requirement is 1 hour).
What is changing on 1 February 2022?
The SCHADS Award will introduce “transitional arrangements” in connection with the above changes on 1 February 2022.
These relate to part-time employees who currently have an agreed regular pattern of work that includes shifts or periods of work in broken shifts of less than:
(i) 3 hours for social and community services employees (except when undertaking disability services work);
(ii) 2 hours for all other employees.
Where the agreement about their regular of pattern of work was made before 1 February 2022 then the employer must take the following steps in order to get ready for the changes coming in 1 July 2022:
- The employer must discuss the forthcoming relevant minimum payment requirements with the employee and genuinely try to reach agreement on a variation to the agreement about their regular hours that will make each of the employee’s shifts or periods of work in broken shifts consistent with the new minimum engagement periods commencing on 1 July 2022, and will reasonably accommodate the employee’s circumstances.
- If, after doing so, the employer has genuinely tried to reach an agreement with the employee but an agreement is not reached (including because the employee refuses to confer), the employer may forcibly vary the agreement about regular hours to provide for shifts or periods of work in broken shifts that are consistent with the new minimum engagement rules by providing 42 days’ notice to the employee in writing, but such a variation must not come into operation before 1 July 2022.
The intention of these changes is to avoid a situation where, for example, a part-time employee’s agreed pattern of work currently includes a shift of one hour. When the changes to the minimum payments commence on 1 July 2022, an employer could be faced with a situation where they were forced to pay a part-time employee for 2 or 3 hours for that shift, even though the employee was only working one hour, if the employee does not agree to vary their hours.
The transitional arrangements operate so that an employer can forcibly increase a part-time employee’s hours by requiring them to work the minimum engagement periods coming into effect on 1 July 2022 (in circumstances where the employee does not agree to an increase in their hours).
For employers who are engaging new part-time employees from 1 February 2022 onwards, it will be important to note that they will not have the benefit of the transitional provisions. This means that if they engage a part-time employee to work less than the forthcoming minimum engagement periods, they may be left with a situation on 1 July 2022 where they are required to pay an employee for more hours than the employee is working, and have no ability to forcibly increase the employee’s hours without their agreement.
What other changes to the SCHADS Award are coming on 1 July 2022?
Other changes to the SCHADS Award that will start on 1 July 2022 include:
- New minimum payment/engagement periods for part-time employees (see above)
- The minimum payment/engagement periods for casual home care employees will increase from 1 hour to 2 hours (see above)
- Broken shifts will now only be allowed to have a maximum of one break or one gap in the shift (ie it will only be allowed to be worked in two periods). Broken shifts with two breaks (three periods of work) will only be allowed by agreement with the employee. It will not be possible to have more than two breaks (three periods of work) in any circumstances.
- There will be minimum engagement/payment periods for each part of a broken shift (see above).
- A broken shift allowance will now be payable
- An “on-call allowance” will now be payable for employees who do work remotely outside their ordinary hours of duty, e.g. taking phone calls, assisting with emergencies, implementing short-notice roster changes, etc.
- Part-time employees who have regularly worked hours in addition to their agreed ordinary hours will be able to request that their agreed hours be increased.
- The client cancellations clause will be extended to disability services and will no longer permit an employer to not pay a full-time or part-time employee for a cancelled shift. Rather, depending on the circumstances, an employer will be required to provide make-up time to the employee or to pay the employee for the cancelled shift.
- There will be a new requirement for an employer to reimburse employees for clothing or equipment that is damaged or soiled in the course of their duties
Need further help?
If you need further help on any of the matters raised in this article please contact EI Legal.