DECISION

Fair Work Act 2009
s.158—Application to vary or revoke a modern award

Application to vary the Social, Community, Home Care and Disability Services Industry Award 2010
(AM2020/18)

Application by the Australian Municipal, Administrative, Clerical and Services Union and others to vary the Social, Community, Home Care and Disability Services Industry Award 2010 – application to add clause X.3 to Schedule X—Additional Measures During the COVID-19 Pandemic – application dismissed.

Introduction and background

[1] On 28 April 2020, the Australian Municipal, Administrative, Clerical and Services Union (ASU), the Health Services Union (HSU), the United Workers Union (UWU) and National Disability Services (NDS) jointly lodged an application pursuant to s 158(1) of the Fair Work Act 2009 (FW Act) for the Social, Community, Home Care and Disability Services Industry Award 2010 (Award) to be varied to add a new clause X.3 to Schedule X of the Award. The claimed provision, in the form advanced at the hearing, is in the following terms:

“X.3 COVID-19 CARE ALLOWANCE

(a) This clause applies to social and community services employees undertaking disability services work.

(b) Where an employer requires an employee to work in personal contact with a client who:

(i) is required by government or medical authorities to self-isolate in response to the COVID-19 Pandemic;

(ii) is required on the advice of a medical practitioner to self-isolate in response to the COVID-19 Pandemic;

(iii) the employer reasonably suspects has COVID-19;or

(iv) has COVID-19;

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

[2] Clause X.1 of Schedule X of the Award provides that it operates “until further or other order of the Commission in matter number AM2020/13”. The “Standard Rate” referred to in the proposed variation is defined in clause 3.1 of the Award to mean “the minimum wage for a Social and community services employee level 3 at pay point 3 in clause 15.3”. The wage rate referred to is currently $1,006.10 per week, so the rate of the claimed allowance is $5.03 per hour (it amounted to $4.94 per hour at the time the application was filed).

[3] The statutory framework applicable to this application is as follows. Section 157(1)(a) of the FW Act empowers the Commission to make a determination varying a modern award (other than to vary minimum wages or a default fund term of the award) if the Commission is satisfied that the determination “is necessary to achieve the modern awards objective”. Under s 157(3), the Commission may exercise its power under s 157(1)(a) on its own initiative or on application under s 158. Section 158(1) provides that an application to vary, omit or include terms (other than outworker terms or coverage terms) in a modern award may be made by an employer, employee or organisation that is covered by the modern award or an organisation that is entitled to represent the industrial interests of one or more employers or employees covered by the modern award. An organisation for the purpose of s 158(1) is one registered under the Fair Work (Registered Organisations) Act 2009 (registered organisation).

[4] The modern awards objective is contained in s 134(1), which provides:

“(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.”

[5] The capacity to vary any modern award remains constrained by s 139(1), which provides that a modern award may only include terms about certain specified matters. In respect of the matter of allowances, s. 139(1)(g) refers to:

“(g) allowances, including for any of the following:

(i) expenses incurred in the course of employment;

(ii) responsibilities or skills that are not taken into account in rates of pay;

(iii) disabilities associated with the performance of particular tasks or work in particular conditions or locations…”

[6] The Award is expressed, in clause 4.1, to cover employers in the crisis assistance and supported housing sector, the social and community services sector, the home care sector and the family day care scheme sector, and their employees in the classifications listed in Schedules B to E of the Award. “Social and community services sector” is given the following definition in clause 3.1:

“social and community services sector means the provision of social and community services including social work, recreation work, welfare work, youth work or community development work, including organisations which primarily engage in policy, advocacy or representation on behalf of organisations carrying out such work and the provision of disability services including the provision of personal care and domestic and lifestyle support to a person with a disability in a community and/or residential setting including respite centre and day services.”

[7] The claim therefore only affects a part of the Award’s coverage.

[8] The classifications applying to the “Social and community services sector” are those contained in Schedule B, which sets out the classification definitions for eight levels of “Social and community services employees”. The rates of pay for these classifications (which have within them either three or four separate pay points) are set out in clause 15 of the Award. For all but the Level 1 classification, the Social, Community and Disability Services Industry Equal Remuneration Order 2012 1 (ERO) applies. Relevantly, its effect is to add percentage increments, ranging from 23 to 45 percent, to the rates of pay prescribed in clause 15 for the Level 2 to 8 classifications. The increments are being phased in so that they will not have full effect until 1 January 2021. The current position is that 8/9ths of the final increments are currently payable.

[9] The ASU, the HSU and the UWU are all registered organisations of employees who are entitled to represent employees covered by the Award, and are thus competent applicants under s 158(1). NDS is the peak body for non-government disability service organisations, but is not a registered organisation. Although it was also an applicant (presumably in its capacity as an employer in the “social and community services sector” which carries out “policy, advocacy or representation on behalf of organisations”), it indicated that it no longer supported the application on 8 May 2020.

[10] The genesis of the application lies in discussions which occurred in March and April 2020 between the ASU, the HSU, the UWU and NDS in an endeavour to reach a consent position concerning variations to be made to the Award to mitigate the impact of the COVID-19 epidemic on employers and employees covered by the Award. The application was a product of those discussions, albeit that NDS conditioned its consent upon the provision of government funding support. The President, Ross J, made directions for the filing of evidence and submissions on an urgent basis, and listed the matter for hearing on 4 May 2020 before a differently constituted Full Bench. The applicants filed submissions and a witness statement made by Mr David Moody, the Chief Executive Officer of NDS, on 29 April 2020 pursuant to those directions. 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). A hearing took place on 4 May 2020, at which Mr Moody was cross-examined. The matter was then adjourned for further hearing on 11 May 2020.

[11] On 5 May 2020, the Full Bench issued a statement in relation to the matter 2 (Statement). The Statement outlined the background to the application and some of the features of the sector covered by the Award, including the implementation of Consumer Directed care in the home care sector and the National Disability Insurance Scheme (NDIS) in the disability sector. The Statement then posed a number of questions to be answered by the parties, and expressed a number of provisional views which may be summarised as follows:

(1) Mr Moody’s evidence was of little or no probative value in the consideration of the application.

(2) There was some force in the contentions advanced by ABI and the Ai Group that the proposed allowance:

•  did not deal with enhanced hygiene procedures and the need to follow them, the need to wear PPE, and any asserted responsibility in following enhanced hygiene procedures or wearing PPE;

•  did not have as a prerequisite that the employee is in close personal contact with the client, noting that some forms of support could be provided without any personal contact with the client; and

•  there was no definition of the phrase “disability services work”.

•  The applicants were invited to reframe their claim to address these issues.

(3) In respect of s 134(1)(a), the payment of additional compensation in the form of an allowance would assist low paid workers in the sector to better meet their needs. However this was not, in and of itself, a sufficient consideration to warrant the variation sought, and the claim needed to be justified on its merits.

(4) As to s 134(1)(b), the allowance would not encourage collective bargaining, and this weighed against the proposed variation.

(5) The consideration in s 134(1)(e) was not relevant to the matter.

(6) The application was not likely to have any appreciable impact on employment growth, inflation and the sustainability, performance and competitiveness of the national economy, and accordingly the consideration in s 134(1)(h) was a neutral one.

[12] The Statement also directed the ASU, NDS and ABI to file an agreed statement of facts in relation to funding announcements in the disability services sector.

[13] On 6 May 2020 the ASU, the HSU and the UWU requested an extension of time to answer the Full Bench’s questions and to file further submissions and evidence, and accordingly sought that the hearing date be adjourned and the matter listed for further directions. The hearing listed for 11 May 2020 was consequently cancelled and revised directions were issued for the filing of evidence and submissions. The Full Bench was subsequently reconstituted, a further directions hearing occurred on 28 May 2020, and directions were made for the filing of further evidence and submissions. The hearing of the matter occurred on 1 and 2 July 2020.

Agreed statement of facts regarding funding announcements

[14] Pursuant to the direction in the Statement, an agreed statement of facts concerning recent funding announcements in the disability services sector was filed by the ASU, NDS and ABI on 19 May 2020. The agreed statement was, relevantly, as follows (with paragraphs renumbered):

(1) The Commonwealth Government has made announcements and published information about funding for the disability services sector in the context of the COVID-19 pandemic...

(2) In summary, the Commonwealth Government has announced the following funding measures in response to the COVID-19 pandemic:

(a) Cash flow relief - Registered NDIS providers to receive a one-month advance payment based on monthly average supports delivered in the previous three-month period – to provide immediate cash flow relief. The payment will need to be paid back to the NDIA.

(b) 10% COVID Loading for certain services – From 25 March 2020, a 10% temporary increase was applied to the price limits of 402 price-controlled items in selected support categories subject to the NDIS participant agreeing to increase being applied to their static funds. These items are identified in the NDIS Support Catalogue with “Includes COVID Loading” in the description of the item. This increase is until 30 September 2020, with a review before the end of June 2020.

(c) COVID-specific funding for Supported Independent Living - From 30 April 2020, where a participant tests positive for COVID-19, the NDIA will provide additional funding for a one-off cleaning of the premises ($300) and up to $1,200 per day for additional staffing and other requirements. This can be claimed from the date that the infection is confirmed until the participant is no longer infectious. This applies until 30 September 2020, with a review before the end of June 2020.

(3) The Commonwealth Government has not made any announcements regarding funding for the allowance sought by the Applicants.

Case advanced by the ASU, the HSU and the UWU

[15] The applicants’ application included the following grounds in support of the claimed allowance:

“. . .

(8) The National Cabinet formed in response to the COVID-19 Pandemic has accepted advice from the Australian Health Protection Principal Committee that the following persons are, or are likely to be, at higher risk of serious illness if they are infected with the virus:

(a) Aboriginal and Torres Strait Islander people 50 years and older with one or more chronic medical conditions;

(b) People 65 years and older with chronic medical conditions;

(c) People 70 years and older;

(d) People with compromised immune systems.

(hereafter, ‘vulnerable persons’)

. . .

(11) The nature of the employment of Disability Services Employees covered by the modern award is such that they:

(a) are engaged in exempt activities;

(b) required to come into contact with other persons engaged in exempt activities;

(c) are required to and/or likely to come into contact with vulnerable persons;

(d) are required to come into contact with persons who are required to self-isolate;

(e) are required and/or likely to come into contact with persons who have COVID-19 .

(12) Employees who are required to work with clients in the circumstances set out by the draft determination are likely to be low paid workers eligible for Jobkeeper payments which reduce the economic incentive to undertake such work, and the proposed variation contributes to providing such an incentive and ensuring continuity of supply of relevant workers.

(13) Employees who are required to work with clients in the circumstances set out by the draft determination are at an increased risk of subsequently being required to self-isolate and/or take leave and the variation is, in part, intended to compensate for the economic cost to such employees of foregoing their usual payment for work including shift penalty rates while isolated or on leave.

(14) Some of the Disability Services Employees to whom the modern award applies are low paid relative to those who are not award dependent.

(15) Some of the Disability Services Employees to whom the modern award applies are low paid as measured against the benchmark of two thirds of median weekly full time earnings.

(16) The variation proposed will assist to increase the living standards of employees covered by the modern award.

(17) The variation proposed will compensate Disability Services Employees for the disability associated with working with clients who may have contracted the virus, including the necessity of being subject to enhanced hygiene procedures and using personal protective equipment (‘PPE’)

(18) The variation proposed will compensate Disability Services Employees for the increased responsibilities associated with working with clients who may have contracted the virus, including the responsibility performing enhanced hygiene procedures and using PPE.

(19) The variation proposed will ensure that vulnerable persons needing to self-isolate will be able to access their normal disability supports.

(20) The variation proposed may avoid short term costs to employers which could arise if Disability Services Employees refuse to work with clients who may have contracted the virus (including ceasing their employment) and are required to be replaced.

(21) The variation proposed will neither encourage nor discourage collective bargaining, but will address a need for employers and employees who do not collectively bargain.

(22) The variation proposed by the Applicant is intended to operate for a limited period of time, adopting an end date which is coextensive with the existing “Schedule X” introduced into the modern award by the decision of the Commission in [2020] FWCFB 1837.

. . .

(24)  For the foregoing reasons, the variation of the modern award in the terms sought by the Applicant is, fair, relevant and necessary…”

[16] In their written and oral submissions, the ASU, the HSU and the UWU submitted that:

•  the proposed clause is one that may be included in a modern award as an allowance permitted under s 139(1)(g)(ii) and (iii) of the FW Act as concerning responsibilities or skills that are not taken into account in rates of pay and disabilities associated with the performance of particular tasks or work in particular conditions or locations;

•  the quantum of the allowance is equivalent to a 15 percent increase in the hourly rate of pay for a Social and Community Services Level 3.1 employee under the Award under the transitional rates of pay that apply in New South Wales under the ERO;

•  the value of the allowance seeks to compensate disability services workers for the additional responsibilities and disability associated with working with clients who have or might have contracted COVID-19, and acknowledges that in the relevant circumstances the worker is performing work in an environment that occasions heightened psychological stress and risk;

•  people with disabilities who are self-isolating or have contracted COVID-19 will require support from a disability support worker during this pandemic, and this work is more onerous than the work usually performed by disability support workers;

•  some people with disability will be at higher risk because of the nature of their disability, individual underlying chronic health conditions or because they are living in group homes or boarding houses that have shared facilities, increasing the risk of exposure to the virus;

•  the work of a disability support worker involves physically close and often one-on-one contact with disabled clients, including assistance in preparing meals, feeding clients, shopping for groceries with clients, attending appointments with clients, recreational and exercise activities, and assistance with toileting and showering;

•  employees working with clients who have COVID-19 or who are self-isolating will need to follow more rigorous hygiene protocols and infection control measures than usual;

•  the use of PPE, enhanced infection control measures and the requirements for physical distancing will make the disability support role more physically demanding, and there will be personal discomfort associated with the prolonged use of PPE;

•  disability support employees will also be required to help the client to understand and adjust to significant changes in their routine occasioned by the pandemic, including explaining the need for self-isolation, why they cannot leave the house to see friends and family, and why they can no longer attend their usual activities, and may require the creation of new routines and programs for these clients;

•  it will also be necessary for disability support workers to manage interactions and relationships between multiple clients resident in the same home;

•  clients with disabilities in self-isolation may also exhibit challenging behaviours in response to self-isolation, the use of PPE and enhanced hygiene procedures, and will need increased emotional support and behaviour management from their disability support workers without the use of restrictive practices such as seclusion, chemical, mechanical or physical restraint;

•  the safety net provided by the Award cannot be said to be fair or relevant as it provides no recognition of the disabilities occasioned by the COVID-19 pandemic for disability service workers, and the proposed allowance is responsive to real, foreseeable and distinct change in the work environment created by the COVID-19 pandemic;

•  the allowance would promote increased workforce participation in that it would encourage casual and part-time employees to accept additional shifts where a client has been required to self-isolate due to actual or potential COVID-19 infection and would help overcome disincentives to work created by JobKeeper payments and enhanced social security payments; and

•  the National Disability Insurance Agency (NDIA) has provided additional funding measures which will be adequate to cover the cost of the claim, which is likely to be small overall due to low rates of infection in the sector.

[17] The ASU, the HSU and the UWU relied on the evidence of a number of employer and employee witnesses, whose evidence is summarised below.

Andrew Richardson

[18] Andrew Richardson is the Chief Executive Officer of Aruma, an organisation which provides disability support services including supported independent living, short term accommodation (respite care), social and community participation, children’s services, therapy and clinical services, NDIS support coordination, supported employment and school leaver employment supports. Aruma currently works with 5,300 people with disability, employs about 5,600 people and is a registered NDIS provider.

[19] Mr Richardson gave evidence that Aruma had been obliged to comply with a range of new regulatory requirements introduced during the COVID-19 pandemic through Federal, State and Territory directives, NDIS Quality and Safeguards Commission reporting directives, Communicable Diseases Network Australia guidelines, State level guidelines for disability and care facilities, and pandemic guidelines from Safework Australia. The NDIA had provided financial support in the form of an advance, repayable payment equivalent to one month’s regular NDIA payment, a 10% loading on some services, primarily lifestyle support, and funding for a one-off cleaning of premises and up to $1,200 per day for additional staffing and other requirements where a participant tests positive for COVID-19.

[20] Mr Richardson said that Aruma had experienced very low rates of infection across both customers and staff. At the time he gave evidence, among employees, there had been 378 suspected cases to date, of which none had tested positive, 342 had tested negative and the remainder were awaiting test results or were under isolation and had not yet been tested. Amongst customers, there had been 463 suspected cases, of which 1 had tested positive, 415 had tested negative and the remainder were awaiting test results or were under isolation because they chose not to be tested. The person who was confirmed as positive was a customer of support coordination and not a residential customer, to whom Aruma provides help with access to services. Aruma had some weeks earlier moved to remote provision of support coordination services, which meant that the customer did not present a risk of transmission to other customers or staff.

[21] In his witness statement, Mr Richardson outlined a range of policies and procedures which Aruma had implemented for staff to support them in managing their day to day work, preventing the spread of the virus and dealing with suspected or positive cases. These included a suspected or confirmed case escalation procedure, a service isolation and quarantine process, infection control precautions, a symptom diary for customers, and how to take a customer’s temperature. Mr Richardson said employees had the following additional responsibilities when working with a customer who has or is suspected to have COVID-19:

•  employees must work in accordance with COVID-19 protocols and procedures;

•  customers’ health must be checked more frequently;

•  visitors and staff must be screened when entering SIL;

•  PPE must be used; and

•  new hygiene requirements must be followed, including procedures for using and cleaning vehicles during the pandemic, the cleaning and disinfecting of rooms, cough and sneezing etiquette and hand hygiene.

[22] Mr Richardson described the effect that the use of PPE and enhanced hygiene had on customers, which had to be managed through enhanced communication, updates on hygiene practices, role modelling and placement of PPE and hand sanitiser in more locations. There were, he explained, strict rules against the use of restrictive practices against a person with disability, and these were difficult to balance with government directions to self-isolate. This had to be managed through customer and family engagement, access to behavioural specialist teams, role modelling, adding creative activities in line with restrictions and regular communication. Mr Richardson distinguished between supporting customers with COVID-19 and supporting customers with other infectious diseases, since COVID-19 was not fully understood in terms of transmissibility, immunity duration and side effects, and COVID-19 had caused much greater levels of anxiety amongst staff. Other infectious diseases had not been subject to public health orders.

[23] In relation to the proposed allowance, Mr Richardson said that Aruma had introduced a similar allowance across its disability support workforce. He considered that the proposed allowance was affordable unless infection rates spiked. He said that the financial risk arose around people who are suspected of having COVID-19 but not confirmed, or who are not residing in an NDIS-funded SIL, as these situations attracted no NDIS funding support. Aruma had decided to pay the allowance in the event that a customer is suspected of having or diagnosed with COVID-19, because it was believed that “it is important to do this for our people for continuing to provide support to our customers and potentially placing themselves in harm’s way”.

Andrew Hyland

[24] Andrew Hyland is the Chief Executive Officer of Lifestyle Solutions, which is a not-for-profit community services organisation which provides support services to people with disability, young people and children in out-of-home care and their families and communities. Lifestyle Solutions supports 2,141 people. Its expertise is supporting people with an intellectual disability, although it also supports persons with physical disability or with both. The services it provides to the disabled included supported independent living, in-home supports, community access supports and some centre-based programs. Its primary funding is from the NDIS. It also provides child and family services, including foster care, family group homes and residential services for children and young people who are unable to live with their families. These services are funded by State governments.

[25] Mr Hyland said that Lifestyle Solutions employs 1515 employees in disability services, with most services to customers being provided on a one-to-one basis. All of these employees are engaged under the Award. The employees provide personal care, domestic assistance or home maintenance to disabled persons in a community or private residential setting including respite centre and day services. Approximately 80 percent of these employees are involved in “frontline” services, and about a third provide services to group homes.

[26] Mr Hyland gave evidence that only 19 customers had been tested for suspected cases of COVID-19 as a resulting of displaying symptoms or coming into contact with someone with symptoms, and as a precaution 96 people had been placed in self-isolation or quarantine to date. Mr Hyland said that, in response to the COVID-19 pandemic, Lifestyle Solutions had implemented strict protocols for supporting customers who have or are suspected of having COVID-19. These protocols are consistent with the Commonwealth Department of Health Management and Operational Plan for People with a Disability, which compiled the various State and Territory public health orders and provided advice to disability service providers about how to best comply with them. Mr Hyland’s evidence was that the COVID-19 protocols are different from normal infection control procedures, which do not include the same level of social distancing and self-isolation.

[27] Mr Hyland said that Lifestyle Solutions’ protocols apply as soon as any customer displays COVID-19 symptoms or is known to have been in contact with a suspected or confirmed case of COVID-19. Customers are required to self-isolate, and staff caring for them are required to:

•  wear PPE whenever caring for someone with a confirmed case of COVID-19 or who is in quarantine;

•  wash their hands before putting on PPE;

•  don PPE before they enter the person’s room or home;

•  wear a gown, face mask, protective eyewear and gloves if providing personal care to someone who is a confirmed case or in quarantine;

•  remove all PPE before exiting the person’s room after each shift or interaction with the person and then wash hands again; and

•  ensure customers and other staff practice physical distancing while contractors are onsite and wipe down surfaces after contractors have left.

[28] Mr Hyland said that a customer will be tested for COVID-19 once they are required to self-isolate, and the above protocols must be followed until the test is returned negative, in which case normal procedures resume. If the customer tests positive, then isolation is maintained until they recover from the disease and test negative. Mr Hyland’s evidence was that, because most customers live in group homes, it is necessary to isolate the whole household and implement social distancing within the house. This requires restriction of participation in common areas, and the residents cannot be taken into the community. However, it is not possible to keep residents in their room all day and staff must look for opportunities for activities in the house.

[29] Mr Hyland’s evidence was that people with intellectual disability often display challenging behaviours, and customers can become aggressive and violent, or become scared and retreat. These behaviours are exacerbated by stressful situations like self-isolation where, for example, a customer’s routine is disrupted or they are scared by staff using PPE. In a group home, self-isolation may cause tension between residents. Mr Hyland said that behaviour management is a significant part of a support worker’s job, and they are required to use techniques to de-escalate situations involving challenging behaviour. These are more effective if staff have a relationship with the customer, but temporary, placement or more junior staff might not have the necessary skills or relationship to de-escalate challenging behaviour. Mr Hyland said that caring for a customer in self-isolation would require an extra degree of focus, concentration and awareness on the well-being of the customer and their relationship with the support worker.

[30] In relation to the allowance claim, Mr Hyland said that disability support workers are low paid and have poor conditions with limited prospects. He said that the workforce is ageing at a time when there is a growing demand for workers, and in his opinion the disability sector needed to offer a more attractive set of terms and conditions for people to work in the sector. Under the NDIS, disability support workers are predominantly casual or on fixed term contracts, and many had second jobs. He said that he wanted “the best people”, for employees to skill up and have a career path, to feel emotionally rewarded because they are supporting a vulnerable person, but also rewarded by “an attractive level of pay that recognises and values their skills and experiences”.

[31] Mr Hyland said that the COVID-19 care allowance is a recognition of the added risks and responsibilities that come with working with a person who has COVID-19. The nature of the work does not allow for social distancing, and it is necessary to have physical contact with a customer to help prepare them for the day, to get them through the day, to feed them, and to administer medication when necessary. This would bear a substantial burden on mental health and wellbeing, taking into account the risk of becoming infected and passing that on to a member of the employee’s household. Mr. Hyland said:

“There is an enormous gap between the value that frontline disability workers bring to society and the low wages – and lack of respect – many earn in return. During this time it is important that disability workers secure an income boost and earn a wage with adequate benefits. We owe them urgent policy change to ensure that they earn federally mandated hazard pay, on top of stringent safety measures and life-saving PPE to shield them from COVID-19… With little financial security, many workers feel like they have no choice but to continue working to support the vulnerable people in their care, despite the sudden hazards of their jobs being top of mind. It is only fair and just to compensate for additional stress and responsibility. A fair and equitable system for COVID-19 based allowance should compensate essential, frontline workers who face exposure to COVID-19 through their jobs.”

[32] Mr Hyland estimated that, on the basis that one percent of Lifestyle Solutions’ customers (20 customers) were infected or self-isolating at any one time, the cost of the allowance would be $11,856.00 per week, out of a current wages bill of about $2.2 million per week. He considered the allowance to be “...the least we can do to compensate them for the risks they face – a down payment for what should be permanent increases so that all workers earn the dignity of a living wage”. He confirmed that Lifestyle Solutions had agreed, in consultation with the ASU, to pay its staff a “COVID-19 Care Allowance” of $4.94 per hour when they were required to support a person who had been diagnosed with COVID-19 and was recovering in isolation.

Mark Farthing

[33] Mark Farthing is the National Campaigns and Projects Officer at the HSU, and has worked in various capacities for the HSU since 2013. He has substantial research experience in the health and community services sector, with particular expertise in disability services and the NDIS, as well as more broadly in industrial and workforce research and policy. He gave evidence that the HSU had requested and been provided with data concerning the incidence of COVID-19 in disability services. The data provided showed that, as at 29 April 2020, the NDIS Quality and Safeguards Commission had been notified of 10 NDIS participants who had contracted COVID-19 (in the context of there being 364,879 NDIS participants reported on 31 March 2020). The data showed that two of these participants had died. The data also showed that there had been cases of infection amongst disability workers, of whom one had died. There was no data collected as to how many disability workers had been required to self-isolate.

Romola Hollywood

[34] Romola Hollywood is employed by People with Disability Australia (PWDA) as the Director of Policy and Advocacy, and has worked for over 20 years in policy, advocacy and training roles in the non-government sector. PWDA is a national organisation that represents and advocates for people with all kinds of disability, working from a human rights-based perspective. Its membership consists of individuals with disability as well as organisations that are constituted by people with disability. It is funded by both the federal government and the NSW government to undertake a range of activities and programs including individual and systemic advocacy, representation, training and programs to assist people to access and engage with the NDIS as well as mainstream services.

[35] Ms Hollywood gave evidence that there is a consensus that some people with disability will be at higher risk of contracting COVID-19 because of the nature of the disability, individual chronic health conditions or because they are living in congregate settings such as group homes or boarding houses which have shared facilities and thereby increase the risk of exposure to the virus. Given this heightened risk, PWDA has been part of the advisory committee for the Management and Operational Plan for People with Disabilities established under the auspices of the Australian Health Sector Emergency Response Plan for Novel Coronavirus (COVID-19). One of PWDA’s major concerns during the current pandemic has been the continuity of support for people with disability, including access to PPE and ensuring that disability support workers are able to continue to deliver supports at best practice standards under NDIS plans. These concerns were communicated by PWDA to the National Cabinet in an open letter.

[36] Ms Hollywood said, in relation to the impact of self-isolation, people with disability may need to work with their disability support workers to change the way their supports are provided during a pandemic. She said that continuity of supports is absolutely essential, particularly as some people with disability rely on supports for personal care and daily living, and this might necessitate increased requirements for health and hygiene measures, adjustment of routines and implementing new routines that maintain daily life in a full and meaningful way. Ms Hollywood said that this may require additional duties at a higher level of skill from workers providing disability support, including higher levels of knowledge and skill in implementing infection control and adjustments to routines.

[37] Ms Hollywood described PWDA’s concerns about the use of restrictive practices which limit people with disability’s right to have choice and control over their own lives, and she said that PWDA’s view was that by providing appropriate forms of support and by adjusting the environment (rather than seeking to change behaviour through a coercive intervention), restrictive practices can be avoided or removed. She said this would require real investment by government in resources and training for workers so that they have the time and skill to work positively and constructively with a person with disability who may need additional support.

Angela Brown

[38] Angela Brown is a disability support worker and a member of the ASU. She has been employed by Lithgow Information and Neighbourhood Centre (LINC) since 2014, and has a Certificate III in Community Services and a Diploma of Community Services. She is employed in two of LINC’s four group homes. Ms Brown gave evidence that the first of these had three women who were intellectually disabled and had physical and mental health issues. She works about five hours each day in that house because the women do not have a high level of need, come and go from the house, go shopping, visit friends and family and go on walks. The COVID-19 pandemic meant that restrictions had been placed on their outside activity and they had to comply with strict hygiene and cleanliness standards. This was difficult to explain to the women, and they became anxious and upset because they could not follow their usual routine and go out each day.

[39] Ms Brown said that the second house contained five women who had a much higher level of need for support, and this house was staffed on a 24/7 basis by five staff, including herself, who rotated through the three shifts in the house. Before the pandemic, the residents attended a day program and sometimes visited their families, but attendance at the day program has now ceased. Ms Brown said that because the women have a higher level of intellectual disability, it has been difficult to implement COVID-19 hygiene and cleaning standards. Some of the women are still able to visit their families, and this has caused resentment because other women cannot do this. Ms Brown said that staff had to assist the women with showering, toileting and administering medications, and sometimes had to accompany them to the doctor when they were unwell or to CentreLink to sort out problems with payment.

[40] Ms Brown described her experience of caring for a client suspected of having COVID-19. The woman concerned was over 70 years old and had several other illnesses; thus when she showed signs of being unwell, Ms Brown contacted her manager for advice. Another member of staff then accompanied the woman to the local fever clinic to be tested, but this was closed and they had to go the local Emergency Department. They were told to go to the fever clinic the next day, and to go home in the meantime and isolate. The resident was tested the next day, and two days later received advice that the result was negative. Meanwhile, Ms Brown said, it was necessary to put in place isolation plans for all of the residents at the group home. Ms Brown requested and was provided with disinfectant and hand sanitiser. She said that the 70-year old resident was clearly unwell and was very distressed and being taken backwards and forwards to hospitals and clinics, being tested and being isolated in her bedroom. The other residents did not understand why their friend was being isolated. Ms Brown said it was a real problem having the whole house locked down, since the staff had to make sure that everyone was safe and well, look after the sick resident, do all of the cooking, cleaning and laundry, clean the bathroom and toilet every time the sick resident used them, administer medication and also maintain the hygiene and cleanliness for the whole house. It was difficult to maintain social distancing; for example, one resident liked to follow staff around and became anxious and upset when she was told she could not do this. Use of the bathroom had to be staggered, and a complete clean up had to be performed between each use of the bathroom.

[41] Ms Brown said that PPE, consisting of gloves, a mask and a gown, had to be used during cleaning, meal preparation, assisting with showering and administering medications. Ms Brown found this to be time consuming and stressful for herself and her colleagues, and it was also very stressful for the residents. Residents were not allowed to assist in meal preparation, service and clean up, which meant that staff had to do all the work, and meal times had to be staggered with constant preparation and cleaning. Ms Brown said this was exhausting because they had to do this additional work while trying to ensure that the residents were cared for and did not feel neglected or bored. PPE ran out quickly, and there was no adequate disposal facilities for this. Residents quickly became anxious, stressed and resentful, and started to argue with each other.

[42] Ms Brown was not able to visit her family during this period of isolation, and she had to take off all her clothing and launder it, and take a shower, before she should touch anything or prepare meals. She said that the whole experience of isolation was exhausting, stressful and caused her and her family real anxiety.

Giovanna Fata

[43] Giovanna Fata works as a house supervisor of residential units for people with disabilities. She has a degree in Applied Science – Intellectual Disability and is a member of the HSU. She is employed by the Victorian Department of Health and Human Services (DHHS), and is working on secondment to Life Without Barriers (LWB). She is classified as a DDSO 3 Level 5 under the Disability Services Enterprise Agreement Victoria 2018-2022.

[44] Ms Fata gave evidence that she currently works as the full-time house supervisor for a group with five residents with intellectual disabilities. Three residents are over the age of 70 and two are in their 50s. They have varying degrees of intellectual disability, and some have physical disabilities and complex care needs such as epilepsy, mental health issues, behaviours of concern, eczema and dietary and bowel care issues. Her role requires Ms Fata to manage a team of five staff, who work on a fortnightly roster, and she is responsible for ensuring the daily functioning of the house. She works 76 hours per fortnight on a rotating roster, and does one overnight shift per fortnight. She works about 25 hours per fortnight on administrative and managerial duties, and the remainder of her hours involve working directly with residents.

[45] Ms Fata described her experience of working with a resident with COVID-19. She said a staff member became ill and presented with COVID-19 symptoms, and he then undertook a COVID-19 test. He had worked for five days before he tested as positive. Ms Fata was notified of the result on 30 March 2020, and she was asked to self-isolate as she had worked with him for three days prior. She had to self-isolate until 10 April 2020 and returned to work on 12 April 2020, but worked collaboratively with LWB from home during this period. After she was notified of the result, she was contacted by LWB, and she and LWB worked together to ensure the safety of residents and staff who had been in contact with the infected worker. Ms Fata said that all staff and residents who had come into contact with the infected worker were required to isolate, and this took the bulk of the usual staff out. LWB replaced the staff with a casual pool, undertook contact tracing, provided PPE and instructions for use, arranged forensic cleaners, notified families, and provided notes to the staffing group to ensure continuity of care. Ms Fata continued to manage the home with the support of the two remaining staff.

[46] Ms Fata’s evidence was that on 31 March 2020, a resident became ill, although his symptoms were not typical COVID-19 symptoms. The following day, a doctor advised that the 000 number should be called and the resident taken to hospital with the support of a staff member. Ms Fata was notified, and she asked that the resident be isolated in his bedroom, that his care notes be gathered, and that the staff member accompanying the resident to hospital wear PPE. She also contacted the resident’s family. At the hospital, the resident was tested and placed in isolation. The staff member who accompanied the resident then returned to the workplace, completed some paperwork and went home.

[47] On 2 April 2020, Ms Fata was informed that the resident had tested positive for COVID-19 and would remain in isolation at the hospital. On 3 April 2020 Ms Fata was contacted by the DHHS and did the contact tracing for the resident. LWB then had to remove the remaining two staff members and the temporary team from the house, who then had to go into isolation. Nurses were sent to the house to check on the welfare of residents, adequate PPE was delivered, and forensic cleaners continued to clean the house. Ms Fata maintained contact with the staff members in self-isolation, and continued to manage the needs of the house remotely. She described her workload and stress as enormous. On 5 April 2020, Ms Fata was informed that the staff member who has contracted COVID-19, and with whom she had worked with for ten years, had passed away. She said this caused her further stress and sadness. She had to pass on the news to other staff, residents and families. During this period herself and other staff were awaiting their own COVID-19 test results. Ms Fata described this burden as being unlike anything she had experienced in 25 years as a house supervisor.

[48] Ms Fata said that her team commenced returning to work on 8 April 2020. They all wore PPE, as the isolation period for the residents had not yet ended. The staff did extra cleaning of the house with hospital-grade disinfectant as per infection control guidelines. She said they attempted to practice social distancing with the residents and each other, but this was not possible when supporting residents with showering, toileting, brushing their teeth, dressing and undressing. This put them at high risk of infection. She said that it was also difficult to explain to the residents the staff member’s passing and why they could not go out and engage in their usual activities or be visited by their families. This caused her psychological stress which spilled out into her personal life.

[49] Ms Fata said that she had previously worked with people with other infectious diseases including hepatitis and HIV. She said that these diseases were very different in nature in how they are contracted and spread, and the workplace was already set up to cater for the needs of these infectious people. In relation to the application for the COVID-19 allowance, Ms Fata said that this would “greatly assist” because it would constitute an acknowledgement of the additional work disability support staff do and the stressful nature of the work.

ABI’s case in response

[50] ABI’s submissions opened with a number of properly-made concessions, including relevantly that people with a disability have an inherent right to life and its enjoyment on the same basis as others and are entitled to the same standard of health care as others, that some persons with a disability may have poor health literacy, which may affect an individual’s ability to comply with the evolving and complex COVID-19 related prevention and management measures, and people with a disability will often rely on other people including family members, carers and support workers to provide essential support at close contact, often on a daily basis. However, ABI raised a number of propositions against the grant of the claim.

[51] First, it was submitted that the terms of the proposed allowance were not consistent with the grounds advanced in its support. In particular:

•  it was not a pre-requisite of the allowance that the employee is in close contact with the client;

•  the allowance applies where the employer “reasonably suspects” that the client has COVID-19, which gives rise to uncertainty in the application of the allowance; and

•  nothing in the terms of the allowance deals with the need to follow enhanced hygiene procedures or the need to wear PPE.

[52] Second, the evidence lacked specificity in explaining the disability the allowance is intended to address. In particular, the evidence lacked consideration of:

•  the actual number of clients who have tested positive for COVID-19;

•  what heightened infection control procedures have been introduced and by whom;

•  whether the heightened infection control procedures are in any way different from dealing with a client with another form of infectious disease such as Hepatitis C or a Staph infection;

•  what level of PPE is currently used generally when working with a client, including where the client has another form of infectious disease;

•  the number of employers applying for JobKeeper;

•  the number of employees of such employers declining to attend for work;

•  the character of any asserted additional responsibility and how they manifest and impact working with a client;

•  any explanation of how wearing PPE makes work physically more difficult; and

•  any explanation of the extent or frequency of behavioural changes of clients in comparison to scenarios unaffected by COVID-19.

[53] In relation to PPE, ABI contended that clause 20.2(d) of the Award already contemplates that employees may be required to wear PPE since it provides that employees are to be reimbursed for the cost of PPE (including “rubber gloves, special clothing or where safety equipment is required...”) they purchase themselves. This would include the use and wearing of PPE in all situations that arose before the pandemic including where the client has an infectious disease. ABI submitted that the evidence did not support the proposition that the use of PPE for a client who is self-isolating or had COVID-19 is different from or more physically demanding than for clients not in this class, including clients with other infectious diseases.

[54] ABI also submitted that there was no substance in the assertion of added responsibility. Although the applicants asserted that, in the case of a client required to self-isolate, the support worker would be required to resolve agitation arising from broken routines, manage interactions and relationships between clients in the same home and de-escalate clients without restraint or medication, ABI submitted that these were most likely an existing feature of dealing with clients. The evidence of the applicants did not address the number of NDIS participants who have been or are likely to be required to self-isolate in a group home, whether this would be permitted by health authorities, and the actual impact of such a scenario on the operation of the household and the work that must be performed by the support worker in comparison to the work they would normally perform. It was submitted that employees already follow various protocols to work with clients based on their needs, and COVID-19 was not likely to materially change this responsibility profile beyond working with a client with other infectious diseases.

[55] Third, ABI submitted that industrial tribunals have long adopted the view that employees should not be paid more because a work situation has increased safety risk; rather the employer has the obligation to take all reasonable steps to make the situation safe or as safe as is reasonable.

[56] Fourth, ABI submitted that there is no evidence to support the proposition that the allowance was needed to incentivise an employee in receipt of JobKeeper income support to attend work. There was no evidence of employers claiming JobKeeper and no evidence of employees refusing to attend for work. In any event, nothing in the JobKeeper scheme permitted an employee to receive the minimum amount of $1500 per fortnight and fail to attend for work. Further, it was submitted, industrial tribunals have resisted providing payments as “attraction rates”.

[57] Finally, ABI submitted that the cost of the allowance claim, although not large on an aggregate basis, would be likely to impose a significant cost on an employee by employee basis which would increase significantly in line with any increase in the level of COVID-19 infection. The proposed allowance was not expressed to be conditional on government funding and ABI was not aware of any statement by the Commonwealth in support of funding the allowance via the NDIS.

[58] ABI relied on the evidence of one witness, Sue Cudmore, in support of its case.

Sue Cudmore

[59] Sue Cudmore is the General Manager – Operations of Alliance Health Services Group Pty Ltd (AHSG). She has previously worked in executive, operational and managerial roles in a nursing and disability service. AHSG is a nursing agency which, through its Alliance Community branch (Alliance), provides community care and disability support services to over 1000 individuals. Alliance employs about 450 employees and operates under the Award and the Alliance Home Care Services Enterprise Agreement. Ms Cudmore explained in her witness statement that Alliance was funded by four mechanisms: private paying clients, federally-funded aged care programs, NDIS-funded programs and Icare NSW. She said that infection control and hygiene practices are essential elements of undertaking practice as a health worker and are taken very seriously by Alliance, and that employees of Alliance have previously had to deal with a range of diseases while working in the community setting such as Hepatitis B, Influenza, HIV and Methicillin-resistant Staphylocossus aureus. These diseases, and others, are dealt with in Alliance’s “Infection Control Policy and Procedure Manual” (Manual). The Manual includes the principles of infection control practice, risk assessment and PPE utilisation. Ms Cudmore said that supplementary COVID-19 protocols had been implemented based on these principles.

[60] Ms Cudmore gave evidence that standard infection control measures included:

•  appropriate and correct use of PPE;

•  use of aseptic technique;

•  safe use and disposal of sharps;

•  performing routine environmental cleaning;

•  cleaning and reprocessing of shared patient equipment;

•  respiratory hygiene and cough etiquette; and

•  safe handling and disposal of waste and used linen.

[61] In addition to these standard precautions, Ms Cudmore said that transmission-based precautions may need to be used and are dealt with in the Manual for infectious diseases which may be transmitted by the airborne route, by droplets or by contact. The Manual also deals in detail with the use of PPE and the circumstances in which it is to be used, including the wearing and disposing of protective gowns, gloves, masks and protective eyewear.

[62] Ms Cudmore’s evidence was that, since Alliance had become aware of COVID-19, it had put in place a range of measures to address the risks. The following procedures had been prepared in accordance with directives and guidelines produced by the Commonwealth Department of Health:

•  COVID-19 Response Plan;

•  COVID-19 Individual Support Plan (Community Clients);

•  Participant/Client Risk Assessment Checklist; and

•  COVID -19 On-Hire Workforce Screening Questionnaire

[63] Ms Cudmore said that Alliance had established testing and self-isolation protocols which dealt with situations where employees had flulike symptoms and required testing, where the employee had been tested and where the employee had returned from international travel and had been in close contact with a proven COVID-19 case. As at 20 May 2020, Ms Cudmore said that the position was: three employees had returned from overseas and had self-quarantined for 14 days; three employees had exposure to a person with known or suspected COVID-19, and also self-quarantined for 14 days; and three employees had reported flu-like symptoms, and had self-quarantined while awaiting test results. No employee had been confirmed as at that date as having contracted COVID-19.

[64] Ms Cudmore’s evidence was that Alliance undertakes a risk assessment to ensure that Alliance can provide the required care, to identify any risks that present themselves to the client or employee, and to ensure that those risks are eliminated or minimised. Clinical staff are employed to assess and determine risk including development of appropriate care plans and staff training. Alliance’s COVID-19 Risk Assessment Checklist operates alongside the normal risk assessment procedure but with additional detail specific to COVID-19. She said that Alliance’s staff were used to dealing with risks of infection and transmission (as set out in the Manual) and, like many infectious diseases, the risk can usually be managed adequately with the appropriate training and PPE. For COVID-19 and as with any disease, a client might be so unwell that it is not appropriate for them to remain under care by Alliance, and at that point they would need to be transferred to a hospital since Alliance is not a medical service. Ms Cudmore said that, to this point, Alliance has not had to deal with a client who was suspected of having, or had contracted, COVID-19. However she considered that, if this happened and the client did not require hospitalisation, Alliance’s existing infection control management and PPE protocols would be able to suitably deal with the risk of infection, perhaps with the addition of a P2 mask containing a filter.

NDS submissions

[65] The NDS submissions addressed the questions posed for consideration in the Statement and principally focused on the questions of the cost of the proposed allowance. In this respect, NDS submitted:

•  the quantum of the proposed allowance is relevant to the consideration of s 134(1)(f) as it is clearly a cost to employers;

•  the absolute magnitude of the cost is unknown since the allowance is only payable in restricted circumstances related to likely or demonstrated infection of a client with COVID- 19;

•  where the proposed allowance would be payable, the cost is $4.94 per hour [as at 20 May 2020] which represents an approximately 15% increase in pay per eligible employee;

•  the funding increases for NDIS that have been provided to date are restricted in terms of the services to which they apply, and the purposes for which the funding can be used;

•  there has been no commitment from the Commonwealth to fund the proposed allowance;

•  under the NDIS, pricing caps are set by the NDIA and providers are unable to increase their prices beyond those caps to cover any increases in costs;

•  the inadequacy of NDIS pricing to cover existing labour costs has been the subject of a number of submissions in the 4 yearly review of the Award by the parties to the current proceedings, and is relevant to consideration of the effect of the proposed allowance on productivity and employment costs;

•  while the total cost to the sector is likely to be small, the cost of an unfunded 15% allowance to an individual employer who cannot raise prices to cover the cost, is potentially very significant; and

•  therefore the cost to employers of an unfunded allowance is a negative consideration for the purpose of s 134(1)(f).

AFEI submissions

[66] The AFEI opposed the claim for the allowance and submitted that:

•  advice to disability services provided is to minimise the risk of COVID-19 to patients/clients and has involved re-enforcement of pre-existing infection control advice, with the NDIS Code of Conduct and Practice Standards and staff hygiene practices continuing to apply;

•  NDIS guidance to providers dated 26 March 2020 recommended that disability support workers do not need to wear face masks unless there is a risk of contamination, and NDIS guidance to providers dated 7 April 2020 advises that providers who use PPE as a regular part of their support arrangements should continue to access PPE through their usual means but does not include any requirement for new or novel PPE to be used in response to COVID-19;

•  the Australian Guidelines for the Prevention and Control of Infection in Healthcare 2019, which guides NDIS providers, provide a basis for healthcare workers to develop detailed protocols and processes for infection prevention and control, including in relation to the need for employees to follow established infection prevention and control policies as part of their contract of employment and the use of hand hygiene, PPE, respiratory hygiene and cough etiquette, and waste management as standard precautions against infectious agents;

•  historically, the Federal industrial arbitration system had determined that wage rates should not be increased or set taking into account unsafe conditions, but rather issues of safety should be addressed legislatively or by appropriate remedial action by the employer;

•  as at 31 March 2020, 10 NDIS participants (out of 364,879 nationally) and 12 NDIS workers had reported as testing positive to COVID-19, and there had been a low incidence of rates of self-isolation;

•  workers under the Award are not low paid once the effect of the Equal Remuneration Order applicable to the industry is taken into account;

•  the applicants’ proposition that there is a compensable disability in relation to enhanced hygiene protocols and the use of PPE is not supported by evidence and is without merit; and

•  there is no proper basis to award the allowance on the basis that it is necessary to ensure the supply of labour to the industry.

Ai Group submissions

[67] The Ai Group likewise opposed the claim for the allowance and submitted that:

•  additional funding that has been made available by the Commonwealth Government for specific circumstances associated with the COVID-19 pandemic is either only applicable to the price limits of various support items in NDIS plans, or is not applicable to a situation where a client is suspected of having contracted COVID-19, and thus would not offset the additional cost of the proposed allowance;

•  it is not unusual for employees to perform work with clients who suffer from an infectious disease, and the evidence does not establish that there are any disabilities associated with the performance of work in the context of COVID-19 when compared to work associated with any other infectious disease;

•  the proposition that the pandemic is a matter which impacts on the work of disability services employees under the Award is equally applicable to employees and indeed employers covered by a raft of awards, and is not sufficient to ground a variation to the award;

•  it is not clear how the allowance is in aid of the public health objective and the minimisation of risk;

•  the proposition that part-time employees may lack an economic incentive to take on additional shifts where a client has been required to self-isolate due to potential or known COVID-19 infection is speculative, and the evidence does not establish that the circumstances of the pandemic have created a disincentive to perform disability support work;

•  the Commonwealth Government has provided assistance in the form of counselling, advice and health care for disability support workers, which is better suited to meet the concerns of the applicants regarding the greater stress being placed on workers than additional compensation;

•  the evidence shows that some employers are providing financial assistance to their employees, and the issues raised by the applicants are better dealt with at the enterprise level;

•  the proposed allowance will increase the regulatory burden and introduce additional unfunded employment costs at a time when employers are facing many challenges, additional costs and adverse impacts as a result of COVID-19;

•  the applicants’ amended claim does not address satisfactorily the issues raised concerning the degree of contact with the client needed to qualify for the allowance, the period of time over which the allowance is payable, the lack of definition of the expression “disability services” to which the allowance applies, and the uncertainty surrounding when a person might be suspected by the employer of having contracted COVID-19; and

•  no satisfactory explanation of the quantum of the proposed allowance has been advanced by the applicants.

Life Without Barriers submissions

[68] LWB, which offers a range of disability services and employs approximately 5,000 persons in disability services, filed a submission which was more in the nature of a factual statement about the measures it has introduced and the circumstances it has faced during the COVID-19 pandemic. LWB described the policies and procedures it has introduced in response to COVID-19, and characterised the new requirements as “not ... unduly onerous”. LWB said that, to the date of its submissions (19 May 2020), it had supported one client with a confirmed case of the virus (who was admitted to hospital), with a further 11 persons in supported independent living accommodation having been required to self-isolate. Staff have been trained in new procedures specifically designed for COVID-19, including the correct use of PPE and the implementation of additional hygiene and cleaning requirements. LWB accepted that persons with disability may feel uncomfortable when staff are wearing PPE, and it has attempted to mitigate this through ongoing communication between staff and clients. In respect of the claimed allowance, LWB recognised that “there can be increased focus placed on staff as part of their normal duties should a client be diagnosed or suspected of COVID-19”, and also recognised that “the NDIA has, to date, provided some funding that may assist with paying for an allowance”. LWB has also incurred other costs as a result of the pandemic, including costs associated with purchasing and transporting stockpiles of PPE to its various locations and with preparing and training staff in relation to new or changed policies and procedures.

Submission of the Minister for the NDIS

[69] The Commonwealth Minister for the NDIS, the Hon. Stuart Robert MP, filed a submission on 19 May 2020 which dealt with funding issues. A copy of that submission is contained in Attachment A to this decision.

Consideration

[70] We commence our consideration by dealing with two matters of context: the funding arrangements in place in the disability services sector, and the degree to which the COVID-19 pandemic has affected that sector.

[71] The primary funding mechanism in the disability services sector is the NDIS. Disabled persons who are participants in the NDIS receive support services via a NDIS plan developed by the NDIA in consultation with the participant. The NDIS model treats the participant as a “consumer” who has a substantial degree of choice as to what services they need, and where and when and by whom the selected services are to be provided. NDIS plans specify the global funding amount for different categories of fixed and/or flexible supports. Participants who have a plan developed with the NDIS will then usually enter into a service agreement with a disability services provider or providers to deliver the services specified in the NDIS plan. Providers must be registered by the NDIA. The NDIS will pay the provider for a service delivered pursuant to a participant’s NDIS plan and a service agreement.

[72] Most types of supports are price controlled, meaning that the provider may only charge and NDIS will only pay up to the maximum price set for the service by the NDIS Price Guide issued by the NDIA. There are also some “quotable supports” which may be charged if specifically provided for in the participant’s NDIS plan, and some supports are not price controlled and may be charged on the basis, broadly, of what is reasonable and necessary to meet a participant’s needs. Prices in the NDIS Price Guide are calculated, insofar as labour costs are concerned, on the basis that employees are paid in accordance with the Award, and the NDIS Price Guide often specifies the requisite Award classification for a service prices item.

[73] The effect of this funding system is that NDIS providers who employ persons are constrained in the remuneration they can provide to their employees by the NDIS Price Guide. The prices are subject to an annual review which takes effect on 1 July each year or when service agreements are renegotiated, so the system does not appear to accommodate increases in wages which might take effect during the course of the financial year.

[74] The NDIS Quarterly Report published on 2 September 2020 showed that, as of 30 June 2020, there were 391,999 active participants and 9,251 active providers in the NDIS in the last quarter. The Australian Disability Workforce Report of July 2018 stated that about 46 percent of disability support workers are casual employees, which appears to have increased from about 41 percent in 2015. 3 This is likely to be a result of the introduction of the move away from block funding of disability services to the marketised model of the NDIS.

[75] The agreed statement of facts concerning funding, which we have earlier set out, shows that there is no specific funding which could be applied to the payment of the allowance, if we awarded it. The one-off cash flow payment will by now have been utilised and is repayable. There is no evidence that the 10 percent COVID-19 loading for certain price items in the NDIS Support Catalogue is relevant to the care of actual or suspected COVID-19 cases, and the applicant unions did not submit that this was the case. The Minister’s submission refers to this funding as relating to “assistance with social and community participation and improved daily living skills”, which tends to confirm that this funding would not be relevant to the claimed allowance. The COVID-19 specific funding for supported independent living, which allows for funding for additional staff (among other things) where a participant tests positive for COVID-19, does not appear to be capable of application to the payment of additional remuneration to staff.

[76] The applicant unions did not contend that the rate of COVID-19 infection in the disability services sector was significant; indeed they expressly accepted that the rate of infection was low. In proceedings concerning applications made by the ACTU and various unions for a paid pandemic leave entitlement to be added to a number of awards in the health sector, a differently-constituted Full Bench has to this point in time not yet been persuaded that there is a manifested elevated risk of infection or the need to self-isolate for employees under the Award. 4 The available data on this score is limited, and the data obtained by Mr Farthing only went up to 29 April 2020. The Commonwealth has not yet published statistics in which the infection rate in the disability service sector can be identified. In the ongoing paid pandemic leave proceedings, the Victorian Government has filed statistics showing that in Victoria in the period from 1 June to 11 August, there have been 96 cases of infection in the disability sector, out of a total of 9,208 cases. While not insubstantial, this is less than in Aged/Residential care (2,453), Schools (630), Hospital/health care (540), Food premises (268) and Child care (180).

[77] We turn now to the bases upon which the applicant unions’ case was advanced in respect of the proposed “COVID-19 Care Allowance”. It appears to us that their case rests on five fundamental propositions (noting that there was some shift in emphasis from the grounds stated in the application as filed to the submissions subsequently made in writing and orally at the hearing):

(1) Employees who are required to work in personal contact with clients who have contracted or are suspected of having contracted COVID-19 are likely to be low paid workers eligible for JobKeeper payments or enhanced social security payments, and the allowance will overcome the disincentive to work created by these payments and encourage employees to accept shifts to support clients who are the subject of an actual or suspected COVID-19 infection.

(2) Employees who are required to work in personal contact with clients who have contracted or are suspected of having contracted COVID-19 are themselves at an increased risk of being required to self-isolate or take leave, and the allowance is in part intended to compensate for the economic cost of forgoing their usual payment for work including shift penalty rates while isolating or taking leave.

(3) The allowance would appropriately compensate employees for the disabilities associated with working in personal contact with clients who have contracted or are suspected of having contracted COVID-19. These disabilities include the physical discomfort and demands involved in wearing PPE for prolonged periods, utilising infection control measures and physical distancing, and the mental stress associated with the risks involved in performing the work.

(4) The allowance would appropriately compensate employees for the extra skill and responsibility required in dealing with clients who have contracted or are suspected of having contracted COVID-19, including managing client behaviour, the maintenance of infection control measures and more rigorous hygiene protocols.

(5) The additional funding provided by the Commonwealth would be adequate to cover the cost of the claim, which is likely to be small overall.

[78] We will deal with each of these propositions in turn.

[79] We reject the first proposition. There is no evidence before us of any employer facing difficulty in obtaining sufficient staff to cover shifts to support clients who have contracted COVID-19 or are suspected of having done so. Neither Mr Richardson nor Mr Hyland gave evidence to that effect. Ms Brown and Ms Fata, who actually dealt with suspected or actual cases of COVID-19 infection, did not describe any difficulty in obtaining staff to perform the necessary work, and indeed Ms Fata said that her employer was able to obtain temporary staff to support the clients in her group home when all the existing staff were required to self-isolate. There was no evidence that employees in the disability services were declining to accept work because of JobKeeper payments (or even that any significant number were in receipt of JobKeeper payments), and in any event the receipt of the JobKeeper payment does not entitle an employee to decline to accept a lawful and reasonable direction to perform work. That position is reinforced by the provisions of Division 4 of Part 6-4C, Coronavirus Economic Response of the FW Act, which in brief authorise employer directions to employees to perform duties that are safe and for which the employee has been trained or qualified at locations and on days reasonably determined by the employer.

[80] The first propositionss is also misconceived because it has as an implicit premise that “attraction rates” - that is, wage rates set at a level which are perceived as necessary for an employer to attract and retain sufficient labour - have a proper role to play in the fixation of safety net wages and conditions in modern awards. We reject this. Tribunals tasked with wage fixation in Australia have consistently refused to set minimum award wages on the basis of attraction rates. 5 The only possible exception, namely where a long-term shortage of employees has a consequential effect on the work value of the employees performing the work,6 has no relevance here.

[81] As to the second proposition, we accept the premise that disability support workers providing support services to clients who are the subject of actual or suspected COVID-19 infection, particularly in residential settings, are at an increased risk of having to self-isolate and take paid or unpaid leave from work. The evidence of Ms Fata is sufficiently demonstrative of this proposition. Health precautions will clearly require someone who has been assisting a client with toileting, showering, dressing, meal preparation and the like to self-isolate if the client contracts COVID-19 or is suspected of having done so. However it does not follow that an allowance is therefore an available and appropriate mechanism to compensate an employee for any losses associated with having to take leave to undertake a period of self-isolation. An allowance which had this purpose would not be an allowance of the type specified in s 139(1)(g)(i)-(iii), although we note that s 139(1)(g) is expressed in inclusive rather than exhaustive terms. The applicant unions have not attempted any mathematical justification of the 15 percent allowance by reference to any losses that would be suffered by taking leave entitlements to cover a period of self-isolation, and we doubt that any plausible mathematical relationship would exist. There has been no explication of the rationale of an allowance of this nature applying to a casual employee in receipt of the casual loading. Finally, we note that the applicant unions are still seeking the establishment of a paid pandemic leave entitlement for employees under the Award in matter AM2020/13 which, if awarded, would overlap with the allowance claimed here. The second proposition is rejected for these reasons.

[82] We accept the third proposition in part. We are persuaded, on the basis of the evidence of Ms Brown and Ms Fata, that the working circumstances to which the proposed allowance is intended to apply are very likely to give rise to a high level of personal stress on the part of employees. COVID-19 is a highly infectious disease, its means of transmission are not yet properly understood, and the prevailing medical view is that it is more likely to cause fatality amongst the elderly and those with pre-existing health vulnerability. The additional burden of responsibility associated with maintaining rigorous infection control measures, dealing with upset and agitated clients, and ongoing concern about the risk of becoming infected and then passing infection to others, is likely to give rise to an unusual and unavoidable level of pressure and anxiety. While we accept that disability support workers may, as part of their normal duties, have had to deal with other types of infectious disease in the past, the evidence does not suggest that any situation remotely comparable to the COVID-19 pandemic has occurred before.

[83] We do not accept however that the requirement for wearing PPE and maintaining infection control protocols and distancing requirements has led to a compensable level of physical discomfort or physical demands. The evidence simply did not support this proposition and, in particular, neither Ms Brown nor Ms Fata gave evidence to that effect.

[84] We wholly accept the fourth proposition. Although the COVID-19 pandemic has not led to the exercise of any wholly new skills and, as earlier stated, dealing with infectious diseases in the residential context has always formed part of the duties of disability support workers, the evidence of Mr Hyland, Ms Brown and Ms Fata demonstrates that providing support for a client with an actual or suspected COVID-19 has led to existing skills and responsibilities being exercised at an unprecedented level. This includes simultaneous requirements to maintain infection control protocols, rigorous hygiene procedures and physical distancing, to wear and safely dispose of PPE, to impose an isolation regime on clients and appropriately communicate the need for this to clients, to create modified systems of care and support in residential settings, and to appropriately manage the behaviour of clients and interaction between clients in response to the significant disruption to normal routines. Work intensification to this degree may constitute an increase in work value because it represents an effective change to the nature of the work and the degree of responsibility involved. 7

[85] We do not accept the fifth proposition, for the reasons outlined in paragraph [72] above. It may be accepted that, assessed on a sector-wide basis or on the basis of large disability services organisations such as Aruma and Lifestyle Solutions, the cost of the proposed allowance is not likely to be significant having regard to current infection rates in the disability services sector. However, where there is an outbreak of infection at a residential facility such as a group home, and additional staff are required to be rostered to provide the requisite level of support, the addition of the proposed 15 percent allowance will be a significant cost in respect of that facility. It may also be significant for the disability support organisation providing the service, particularly if it is not large in scale.

[86] We note that, at the hearing, the applicant unions expressly disavowed the proposition that the allowance was sought on the basis that it would compensate for the risk of becoming infected with COVID-19 while providing support services to clients with actual or suspected COVID-19 infection. This approach is consistent with the long-established principle that minimum award wage rates and allowances should not seek to compensate for the risk posed to employees from being required to work in dangerous conditions, and that the focus should be on removing any risk to health and safety so far as is practicable rather than paying employees to put up with it. Perhaps the most succinct expression of the principle was that of the Australian Conciliation and Arbitration Commission (Commissioner Bennett) in Vickers Cockatoo Dockyard Pty Limited v FEDFA: 8 “I am of the opinion that if the work in question is dangerous then it should be a matter of removing the danger rather than of the fixing of a penalty amount.” Of course this principle has its limitations where the danger cannot be removed and employees are nonetheless required to perform the work as an essential service. It is not necessary however to explore the outer boundaries of the principle since, as stated, the applicant unions disavowed any notion of the allowance constituting “danger money”. It is however necessary to note that, as earlier stated, Mr Richardson described the rationale of the COVID-19 allowance which Aruma had decided to pay as being “...for our people ... potentially placing themselves in harm’s way”. This appears to be a description of danger money and, if so, it is inconsistent with the bases upon which the unions advanced their case for the allowance.

[87] It is next necessary to consider the matters required to be taken into account under s 134(1) of the FW Act in connection with the modern awards objective. We do not consider that the matters in paragraphs (d), (da), or (e) of s 134(1) are relevant to our consideration of the allowance claim. In respect of paragraph (a), it is first necessary to consider whether any of the employees affected by the claim are low paid. For the Level 2 classification and above, the ERO must be taken into account for this purpose. The Level 2 weekly full-time rate at pay point 1 is currently $877.60 per week. The final increment under the ERO for Level 2 is 23 percent, and currently 8/9 of that - i.e. 20.44 percent - is payable. The effective minimum weekly full-time minimum rate under the Award and the ERO is therefore $1091.70. At all higher pay points and classifications, the minimum rate will of course be higher. This is above the threshold of two-thirds of median full-time wages which the Commission uses as the benchmark for identifying who is low paid. That benchmark is quantified as either $916.67 per week (Characteristics of Employment Survey, August 2019) or $973.33 per week (Survey of Employee Earnings and Hours, May 2018).

[88] The Level 1 weekly full-time rate is $819.60 at pay point 1, $847.30 at pay point 2 and $877.60 at pay point 3. Level 1 employees are therefore low paid. However, although this was not addressed in the submissions, it may be that an analysis based on full-time weekly minimum wages only is deficient. The disability services sector, as earlier discussed, is made up of about 46% casual employees, and there is also a significant proportion of part-time employees. Arguably, if employees in either category seek to earn a full-time living from disability services work, but are unable to obtain sufficient hours of work, they might be able to be characterised as low paid for the purpose of s 134(1)(a) if they earn less than the benchmark amounts identified above.

[89] In any event, to the extent that low paid employees under the Award would have their remuneration enhanced if the claimed allowance was awarded and was payable to them, their needs would be better met. However the extent of the benefit would be minimal, having regard to the comparative rarity of the circumstances which would attract the payment of the allowance and the limited period in which it would be payable. It would not serve the larger purpose adverted to in Mr Hyland’s evidence of boosting the incomes of disability support workers generally. Nor would the allowance affect relative living standards in a discernible way. The s 134(1)(a) consideration would therefore weigh in favour of the grant of the claim only to a slight degree.

[90] In relation to paragraph (b) of s 134(1), there is no basis to conclude that the grant of the claim would encourage collective bargaining. Indeed, if the expression “collective bargaining” in s 134(1)(b) is read as meaning any form of collective bargaining and not just formal enterprise bargaining pursuant to Part 2-4 of the FW Act, then the grant of the claim would tend to discourage the type of bargaining which has led larger organisations such as Aruma and Lifestyle Solutions to implement enterprise-based payments for employees caring for clients with actual or suspected COVID-19 infections. This weighs against the grant of the claim.

[91] In relation to paragraph (c) of s 134(1), we have already concluded that the evidence does not support the proposition that the award of the claimed allowance is necessary to overcome disincentives for employees to take on shifts caring for clients with actual or suspected COVID-19 infections. We will treat this as a neutral consideration. In relation to paragraph (f), if we exercised modern award powers to vary the award to provide for the claimed allowance, this would not have any effect on the productivity of or the regulatory burden on business, but it would increase employment costs in the manner discussed in paragraph [83] of this decision above, and we are not persuaded that this cost would be recoverable from government funding for the reasons discussed in paragraph [73] above.

[92] In relation to the matters in paragraph (g) of s 134(1), we consider for the most part that they are not relevant to the claimed amount. However, we consider that the grant of the claim would have significant implications for the stability of the modern award system in the following sense. The circumstances raised by the applicant unions to support the claimed allowance here appear to us to be indistinguishable from those of employees who are required to provide care and support to persons who have contracted COVID-19 or are suspected of having done so. This would include persons working in aged care covered by the Aged Care Award 2010, and persons working in a variety of health care settings covered by the Health Professionals and Support Services Award 2020 and the Nurses Award 2010. It appears to us that the grant of the claimed allowance here would lead to very strong pressure for a claim for a flow-on of the allowance to at least those three awards, as well as perhaps to other categories of employees covered by this Award (for example, crisis accommodation and home care employees). It is not clear on what basis such a claim could be resisted in respect of these other awards and groups of employees, save perhaps that in the aged care sector the cost would be significantly greater because of the extent of infection which has occurred in the sector in Victoria. At the very least, we consider it likely that the grant of the claimed allowance would trigger further litigation concerning this and other awards which will require the attention and resources of other industrial parties and the Commission. We regard this as a matter weighing against the grant of the claim.

[93] In respect of paragraph (h) of s 134(1), we consider it very unlikely that the exercise of modern award powers in this case will have any macro-level economic effects which would engage any of the matters identified in the paragraph. Accordingly, we will treat this as a neutral consideration.

[94] The relevant considerations in this matter are finely balanced. As earlier stated, we are persuaded that the performance of work providing support to clients who have or are suspected to have contracted COVID-19 gives rise to a level of disability in the form of stress, mental pressure and anxiety, and requires the exercise of skill and responsibility at an intensified level. There are, as ABI, the Ai Group and AFEI have pointed out, deficiencies in the drafting of the proposed new clause to give effect to the claimed allowance, but these are capable of rectification. However, against the grant of the claim are the following substantive matters:

(1) The circumstances in which the proposed allowance would be payable are comparatively rare and temporary, which calls into question whether the exercise of modern awards powers to deal with this situation constitutes a necessary and proportionate response. The evidence suggests that there is some capacity to deal with the issues raised by the ASU, the HSU and the UWU at the enterprise level (as Aruma and Lifestyle Solutions have done).

(2) The award of the allowance would impose on disability service businesses dealing with an actual or potential COVID-19 outbreak with an additional cost that is likely not recoverable through the NDIS, and which would operate on top of other additional costs that would arise in that situation, including the possible provision of extra staff.

(3) The circumstances in the disability services sector which the allowance is intended to address are for all practical purposes indistinguishable from those applying in a number of other sectors covered by this and other awards, including in hospital care, aged care, home care and crisis accommodation. We can identify no basis to award the proposed allowance for disability service employees only, and we are concerned that the grant of the claim would quickly lead to pressure for a flow-on to other employees and awards.

[95] Having regard to these matters, we are ultimately not persuaded that the grant of the claim for the allowance is necessary to achieve the modern awards objective. Accordingly, the application is dismissed.

VICE PRESIDENT

Appearances:

Mr R Robson on behalf of the Australian Services Union.
Mr S Bull on behalf of the United Worker’s Union.
Ms R Liebhaber on behalf of the Health Services Union.
Mr J Ardnt accompanied by Mr S Cahill on behalf of Australian Business Industrial and New South Wales Business Chamber.
Mr M Pegg on behalf of National Disability Services.
Ms R Bhatt on behalf of the Australian Industry Group.
Mr R Warren of counsel accompanied by Ms S Lo on behalf of the Australian Federation of Employers and Industries.

Hearing details:

2020.
Sydney (video-link).

1-2 July.

Printed by authority of the Commonwealth Government Printer

<PR722808>

Attachment A

The Hon Stuart Robert MP
Minister for the National Disability Insurance Scheme Minister for Government Services

Ref: MS20-000495

Justice Iain Ross
President
Fair Work Commission
Email: [email protected]

Dear President Ross

I am writing to provide information in response to Question 18 posed by the Full Bench in its Statement of 5 May 2020 concerning the application to vary the Social, Community, Home Care and Disability Services Industry Award (the SCHADS Award) (AM2020/18).

The application made to the Fair Work Commission (the Commission) is for a temporary additional allowance to be paid to social and community services employees undertaking disability services work with people with disabilities who are self-isolating due to the Coronavirus disease (COVID-19) pandemic (hereafter, COVID-19).

The Commonwealth administers the National Disability Insurance Scheme (NDIS) through the independent National Disability Insurance Agency (NDIA). The NDIA Board sets price limits which NDIS providers can charge for some supports to ensure they provide value for money for participants. Changes to price limits are updated to respond to market trends and changes in costs, which may include changes to employment terms and conditions in the SCHADS Award. These changes are generally identified through the NDIA’s Annual Price Review and take effect 1 July each year or once service agreements have been renegotiated.

In response to COVID-19, the Commonwealth has provided the following additional supports specifically for NDIS providers:

•  Facilitating a one-off advance payment, totalling $666.1 million to more than 5,000 registered NDIS providers to support them with immediate cash flow to retain their staff and deliver supports to participants.

•  Applying a 10 per cent increase to NDIS provider price limits for support items such as assistance with social and community participation and improved daily living skills at an estimated cost of $512 million over 6 months.

•  Access to Personal Protective Equipment (PPE) through the National Medical Stockpile, including an allocation of more than 500,00 masks, for disability providers and self-managing participants where essential services require close physical contact and there is heightened risk of Covid-19 infection.

•  New Supported Independent Living (SIL) support items for cleaning services and higher intensity support. If a participant is diagnosed with COVID-19, SIL providers will be able to claim:

•  $300 for a one-off professional deep clean of a residence; and

•  up to $1,200 per day for higher intensity support including staffing increase, PPE, professional laundering and any ancillary costs directly related to the participant's diagnosis.

Providers can continue to claim usual SIL costs while a participant diagnosed with COVID-19 is in hospital or isolated in alternative accommodation. Alternative accommodation will also be claimable through the short term accommodation support item.

The Commonwealth notes that the allowance is not proposed to apply to employees in other classifications in the SCHADS Award, that is, crisis assistance and supported housing employees, home care employees and family day care employees. The Commonwealth further notes that the allowance is proposed to be only payable in certain circumstances relating to the client’s COVID-19 status.

However, depending on the Commission’s final determination, a number of Commonwealth programs which fund disability support services could also be impacted, including those administered by agencies responsible for social services, health, aged care and veterans’ affairs. Examples of potentially affected program areas include the Financial Wellbeing and Capability Activity, the Family Mental Health Support Services, the National Disability Advocacy Program and the Families and Children Activity.

I also note the proposed variation to the SCHADS Award to include a temporary care allowance of $4.94 per hour until 28 September 2020 due to the impact of the COVID-19 pandemic, if supported, may also impact on programs funded by states and territories.

Yours sincerely,

Stuart Robert

 1   PR525485

 2   [2020] FWCFB 2343

 3   See 4 yearly review of modern awards—Group 4—Social, Community, Home Care and Disability Services Industry Award 2010—Substantive claims [2019] FWCFB 6067 at [67]

 4   [2020] FWCFB 3561 at [122]-[130]; [2020] FWCFB 4327 at [11]

 5   See e.g. Re Railways Professional Officers Award (1958) 89 CAR 40; Re Metal Trades Award; Re State Electricity Commission of Victoria (1964) 106 CAR 535; Local Courts Anomaly Case [1989] AR (NSW) 638 at 645; Re Equal Remuneration Principle [2000] NSWIRComm 113, 97 IR 177 at 215; Health Employees Pharmacists (State) Award and other Awards [2003] NSWIRComm 453, 132 IR 244 at [46]-[48].

 6   See Public Hospital Nurses (State) Award (No. 3) [2002] NSWIRComm 325, 121 IR 28

 7   See at Crown Employees (Police Officers - 2009) Award [2012] NSWIRComm 23, 220 IR 1 at [418]-[426]

 8   [1981] CthArbRp 101, 250 CAR 338