Ai Group will try to remove a technical anomaly and reinforce certainty for the nation's critical and essential care and disability workers in action through the Fair Work Commission today.
"Ai Group is not seeking a radical change to the current award terms or to take anything away from anyone," said Innes Willox, Chief Executive of the national employer association.
"We are seeking to clarify the current ambiguous and notoriously unclear wording of certain award clauses that has resulted in confusion, disputation and disagreement in industry over how the provisions should be read.
"Ai Group's application, in essence, seeks to address a technical anomaly in the wording of the award that has resulted in various provisions being controversially interpreted by some in a way which is unexpectedly and unsustainably generous to employees. The interpretation is inconsistent with the manner in which the award has been traditionally applied by many employers, unions and employees.
"It is unsurprising that unions are now seeking to opportunistically seize on a novel reading of the award that would deliver workers a windfall gain, but the reality is that the interpretation now favoured by unions simply can't be afforded by many employers. The union's interpretation is also inconsistent with the longstanding approach of industry and the way the key instrument that predated the current award operated.
"If the unions' controversial interpretation was accurate it would result in employers being exposed to costs that often aren't funded by Government schemes, such as the National Disability Insurance Scheme, and are simply unsustainable. Indeed, it would be ruinous for many not-for-profit employers, including many small employers and providers of crucial services to vulnerable people.
"Nobody begrudges workers in this sector being properly remunerated. Their work is of vital importance and often undeniably difficult.
"Evidence before the Commission demonstrates that unions and many employees have previously interpreted the Award in the same way that Ai Group has. Some unions and employees have in fact demanded that employers continue to apply it in this way because it enables the rostering of working arrangements that are favoured by some employees.
"Sleepover arrangements are a longstanding and unique part of work in this sector. Traditionally some employers have rostered work so that an employee performs a shift in the evening followed by a 'sleepover' during which the employee is not working but sleeps at a client's residence before undertaking another shift. For example, this may involve a carer working with a young child, even an infant, on a shift commencing in the afternoon in order to help them with their meals and to prepare for bed. The carer then sleeps at the residence before subsequently undertaking a further shift in the morning to help the child when they wake. This might include, for example, getting them ready for school or their activities for the day.
"The work of employees in this sector is vital, but the real barrier to increasing remuneration is the current levels of Government funding. The unions are arguing for an interpretation of the Award that isn't funded by Government.
"Crucially, Ai Group is not altering the number of hours that a worker can undertake and the unions are not calling for there to be any restrictions on working hours. This is largely a case about how penalty rates and shift allowances should be calculated, not about what hours can be worked. Crucially, the unions are not opposed to the working arrangements contemplated by the Ai Group application, they are just arguing that a high rate of pay should attach to them.
"Assertions that the Ai Group proposal will result in workers undertaking longer hours or operating while fatigued are simply inaccurate. Of course, employers are subject to various workplace laws that prevent them from requiring employees to undertake unreasonable or unsafe hours.
"Employers in this sector are between a rock and a hard place. As unions will undoubtedly accept, they need to provide clients with consistent care before and after they sleep by engaging the same staff member to work both periods.
"Similarly, many employees want to provide care in this way and many want to undertake a working arrangement that enables them to compress their working week by undertaking this pattern of work. However, the current award terms fail to clarify how these arrangements are paid," Mr Willox said.
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