Industry update: Key updates in the Social, Community, Home Care and Disability Sector

Changes to the SCHADS Award

From 1 July 2022, several changes were made to employee entitlements under the Social, Community, Home Care and Disability Services Industry Award (SCHADS Award), which largely impacted employment conditions for casual and part-time employees. These key changes are outlined below.

Varying part-time employees’ hours

1. Before commencing employment, employers and part-time employees must agree in writing on a regular pattern of hours to be worked each week, including at a minimum: the hours to be worked, the days of the week the employee will work, and the start and finish times each day (guaranteed hours).
2. The 1 July 2022 amendments to the SCHADS Award introduced provisions altering how employers may vary the guaranteed hours of a part-time employee. An employer may not require a part-time employee to work hours in addition to their guaranteed hours, but the employee may agree to work additional hours.¹
3. Further, where a part time worker has regularly worked hours in excess of their guaranteed hours for at least 12 months, the employee may request their guaranteed hours be increased.² The employer must respond to this request in writing within 21 days, and may only refuse the request on reasonable business grounds. The employer must genuinely try and reach an agreement with the employee to accommodate their circumstances.
4. These added provisions aim to ensure part-time employees are capable of relying on their guaranteed hours as promised upon commencement, and that their guaranteed hours post commencement are a reflection of the actual hours worked.

Minimum payments for part-time and casual employees

1. Casual home care employees are now entitled to a minimum payment of two hours (increased from one hour).³
2. Part-time employees are now entitled to be paid the following minimum hours for each shift or work period in a broken shift:
   1. three hours for social and community services employees (except when doing disability services work);⁴
   2. two hours for the social and community services employees doing disability services work; and
   3. two hours for all other employees.⁵
3. Casual and part-time employees can work for more than one client in more than one location during the minimum payment period. Any travel time incurred between clients during the minimum payment period is counted as time worked and counts towards the minimum payment period.
4. Employers must consult with part-time employees whose agreed regular pattern of work includes shifts, or periods of work within broken shifts, of less than the above specified minimum shift lengths.⁶ If an employer and an employee made this kind of agreement before 1 February 2022, they need to now discuss the new minimum payment requirements and try to reach agreement to vary the employee’s current hours of work in a way that suits the employee’s circumstances and is consistent with the new minimum payment requirements.⁷ If such agreement cannot be reached, despite a genuine attempt to reach an agreement with the employee, the employer can vary the agreement to meet the new minimum payments by giving the employee 42 days’ written notice of the change.⁸

Broken shifts

1. The minimum payment requirements under the SCHADS Award will now apply for each period of work during a broken shift for both part-time and casual employees.⁹ For example, in a broken shift that is made up of two periods of work and one unpaid break, the minimum payment will apply to both periods of work.¹⁰
2. From the first pay period after 1 July 2022, social and community services employees performing disability services work and home care employees are entitled to one of two broken shift allowances. The broken shift allowance is determined by the number of unpaid breaks in the broken shift.¹¹

Client Cancellation

1. Where a full-time or part-time employee is rostered to provide a home care or disability service and the client cancels the scheduled service within seven days, the employer can direct the employee to perform other work during those hours, cancel the whole shift or cancel the affected part of the shift. This also applies where the client cancels and reschedules the service.¹²
2. Where an employee is directed to perform other work, the employee must be paid either the amount payable had they performed the cancelled service, or the amount payable for the work actually performed, whichever is greater.¹³
3. If the employer cancels the shift, it must either pay the employee what they would have been paid if they had worked or provide the employee with make-up time for the same amount of hours.¹⁴ Make-up time can only be provided if the employer gives at least 12 hours’ notice of the shift cancellation and must be worked within  six weeks of the cancelled service.¹⁵ Absent this notice, the employee must still be paid for their hours. Make-up time must be given with at least seven days’ notice of a new shift, unless the employer and employee agree to a shorter period.¹⁶ Where the employee performs make-up time, the employee must be paid either the amount payable had they performed the cancelled service, or the amount payable for the work actually performed, whichever is greater.¹⁷

Mitigating the Risk of Underpayment and Wage Remediation

Changes to modern awards can be a catalyst for unintentional wage theft and payroll compliance issues. Wage remediation in the event of underpayments can be a lengthy and costly process, therefore businesses are encouraged to act quickly to review their operations to ensure ongoing compliance with modern award amendments. In the longer term, businesses are encouraged to implement risk mitigating measures in their workplaces, which can include:

• Regular payroll audits to curtail both financial and regulatory risks and allow businesses to deal with problems proactively via adjustment and correction. Often, consideration needs to be given to things like the employee’s age/tenure (for award increments), classification (did they change part way through a pay period), award rates (did they change from one year to the next) and special allowances.
• Seeking outside help by engaging external payroll services or specific legal advice about the interpretation and application of modern award provisions and to identify and rectify key risks in the business’ systems and processes.

As the Fair Work Ombudsman continues to pursue underpayment claims in 2022, it is imperative that employers remain proactive in understanding their obligations and ensuring compliance with the latest rules, regulations and changes to modern awards in all areas of the workplace.

This article was written by Thea Price, Partner, Claire Stevens, Law Graduate and Grace Maloney, Law Graduate.

¹ Cl 10.3(f) Social, Community, Home Care and Disability Services Industry Award (SCHADS Award).
² Cl 10.3(g) SCHADS Award.
³ Cl 10.5 SCHADS Award.
⁴ Cl 10.5(a) SCHADS Award.
⁵ Cl 10.5(b) SCHADS Award.
⁶ Cl 10.5A(a) SCHADS Award.
⁷ Cl 10.5A(b) SCHADS Award.
⁸ Cl 10.5A(c) SCHADS Award.
⁹ Cl 25.6 SCHADS Award.
¹⁰ Cl 25.6(a) SCHADS Award.
¹¹ Cl 25.6(b) SCHADS Award.
¹² Cl 25.5(f) SCHADS Award.
¹³ Cl 25.5(f)(iii) SCHADS Award.
¹⁴ Cl 25.5(f)(iv) SCHADS Award.
¹⁵ Cl 25.5(f)(v) SCHADS Award.
¹⁶ Cl 25.5(f)(vi) SCHADS Award.
¹⁷ Cl 25.5(f)(vi) SCHADS Award.