national aged care industrial newsletter - Aged & Community ...

NATIONAL AGED CARE 

INDUSTRIAL NEWSLETTER 

Issue No. 1 – February 2011 

AGED CARE EMPLOYERS in ALL STATES AND TERRITORIES call 

1800 401 348 for FREE advice on the Aged Care Award 2010 

Welcome to the first issue of the National Aged Care Industrial Newsletter. This initiative 

has come about primarily because the industrial relations system in Australia is now a truly 

national one and the ACSA Federation wanted to ensure that all aged care providers have 

access to clear, timely and uniform information. ACS NSW & ACT currently prepares a 

monthly newsletter for its members and this national one is modeled on it and prepared by 

the same experienced NSW team. 

Secondly, the Fair Work Ombudsman has provided ACSA with funding under the Shared 

Information and Assistance Projects (SIAP) to provide advice to providers about the 

implementation and interpretation of the Aged Care Award 2010. Any information from 

this project will be contained in a box containing the FWO logo and providers can be sure of 

its accuracy as it has been approved by the FWO. 

In this issue: 

National SIAP Aged Care Award issues… 

• Introduction to Shared Industry Assistance Projects (SIAP) 

• Clause 22.8 ‐ Broken Shifts 

• Clause 22.9 ‐ Sleepovers: What is an emergency for payment purposes 

Also in this issue ACSA reports on… 

• Easter Public Holidays 2011 

• FWA approves cashing out of annual leave in Enterprise Agreements 

• Leave during Floods or Natural Disasters 

• Equal remuneration case update 

Shared Industry Assistance Projects (SIAP) 

Aged & Community Services Australia (ACSA) has received funding from the Fair Work 

Ombudsman (FWO) under the “Shared Industry Assistance Projects” program (SIAP). The 

objective of SIAP is to provide grants to employer/industry organisations to enable the 

development of guidance materials and associated assistance to both members and nonmembers 

on the transition to the modern award/s which relate to their business. In the 

case of the Aged Care Industry FWO has agreed to fund material related to the Aged Care 

Award 2010 (the Aged Care Award). 

National Industrial News Update Issue No 1 – February 2011 

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The Project is being undertaken by ACS NSW & ACT in conjunction with ACSA and will 

comprise the following elements: 

1. An Aged Care Award Hotline service for all Aged Care Modern Award queries (call 

1800 401 348). Questions involving any aspect of the Award from interpretation to 

transition should be directed to this number. The service will operate Monday to 

Friday, 9am to 5pm and be manned by the ACS Employee Relations Team. The service 

will be funded by the Fair Work Ombudsman and be available until the 15/04/2010 

free of charge to members and non‐members. 

2. An interpretative guide to the Aged Care Award to explain, by way of example, how 

to phase‐in (whether up or down) wages, loadings and penalties in accordance with 

the transitional provisions of the Aged Care Award. 

3. Classification Translation and Transition Tables for ALL States and Territories. These 

tables will assist Aged Care Employers across Australia to show how the employment 

classifications in all state and territory Aged Care NAPSAs and Pre‐Modern awards 

translate to the Aged Care Award and what rates are payable. 

4. An annotated Aged Care Award highlighting the difficult and confusing clauses and 

providing interpretation and explanation where appropriate. 

5. This monthly National Industrial Newsletter available to all Aged Care providers. 

Among other Industrial Relations issues of relevance to the Aged Care Industry the 

Newsletter will include articles specifically targeting the Aged Care Award. These 

articles will cover important issues of interpretation and clarification. 

All educational materials developed as part of the SIAP program will be available on the 

various ACSA Federation websites free of charge to members and non‐ members. 

Aged Care Employers in ALL States and Territories call 1800 401 348 for FREE advice on the 

Aged Care Award 2010. 

This month we analyse the Broken Shift and Sleepover clauses of the Award 

Clause 22.8 ‐ Broken Shifts. 

A broken shift is a single shift, worked by a casual or part‐time employee, with one or more 

break/s (totalling less than 4 hours), in addition to those breaks required in accordance with 

clause 24 for meals and tea breaks and where the span of hours is not more than 12 hours. 

All work performed beyond the maximum span of 12 hours for a broken shift will be paid at 

double time. Regardless of the number of hours an employee works within the 12 hour span 

of a broken shift any work beyond the 12 hour span is paid for at double time. 

An employee cannot be required to work a broken shift. Mutual agreement is necessary. 

Whilst we would recommend that the “mutual agreement” is recorded in writing it is 

essential where the working of a Broken Shift by a part‐time employee would require the 

employee to perform more hours than their normal rostered hours for that day (see clause 

25.1(b)(iii) and clause 10.3(c)). 


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Where written agreement is reached the employee may be asked to work up to ten ordinary 

hours before normal overtime applies (see clause 25.1(b)(ii)). Without written agreement 

overtime would be payable for all additional hours worked within that shift (see clause 

25.1(b)(iii)). 

Payment for a broken shift will be at ordinary pay with penalty rates and shift allowances in 

accordance with clauses 25‐Overtime penalty rates and 26‐Shiftwork. As with any normal 

shift the shift allowances (if any) are determined by the commencing time of the broken 

shift, not the commencing time of each of the work periods within the broken shift. 

An employee must receive a minimum break of 10 hours between broken shifts rostered on 

successive days (see clause 22.8(e). Even though, in accordance with clause 22.4(b) it is 

possible in other circumstances, by mutual agreement, to reduce a 10 hour rest break to 8 

hours, clause 22.8(e) which specifically refers to the rest period between broken shifts does 

not allow for a reduction of the 10 hour break. 

Example 1: A broken shift, with one break, worked on a Tuesday (part‐time employee). 

Start Break start Break finish Finish 

09:00 12:00 15:00 19:00 

The broken shift is the period commencing 09:00 and ending at 19:00. It is a normal shift 

but with an extended break period in the middle. 

Total span (09.00 – 19.00) is 10 hours and within the 12 hour limit therefore is okay. 

Break (12.00 – 15.00) including a half hour meal break is 3 hours (not more than 4 hours and 

not including a meal break) and is therefore okay. 

Any shift payments are determined by the starting time of the shift. In this example the shift 

commences at 09:00 and in accordance with clause 26, no shift penalties apply to a shift 

commencing at that time. 

The total working time is 7 ordinary hours (less than 10 hours) therefore no overtime is 

payable. 

NB: In this example the employee was asked to work additional hours beyond their normal 

rostered hours on that day therefore the mutual agreement to work the broken shift was 

recorded in writing. Since the agreement was recorded in writing no overtime is payable for 

the additional hours. The working of the additional hours did not take the employee above 

38 hours (where employed weekly) or 76 hours (where employed fortnightly). 

Example 2: A broken shift, with 2 breaks, worked on a Wednesday (part‐time employee). 

Start Break start Break finish Break start Break finish Finish 

07:00 10:00 11:30 14:30 16:00 19:30 


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Entitlements 

The broken shift is the period starting at 07:00 and ending at 19:30. This employee 

Therefore worked a half an hour beyond the 12 hour span. This half an hour must be paid at 

double time. 

Breaks (10.00 – 11.30) and (14.30 – 16.00) including meal breaks total 3.5 hours and is okay. 

Commencement time of the broken shift is 07:00 and therefore in accordance with Clause 

26 no shift penalties apply. 

If by working the broken shift the employee is asked to work beyond their normal rostered 

hours for the day AND written agreement is reached in accordance with Clause 10.3(c) the 

employee would be paid at ordinary time up to 10 hours and overtime after 10 hours. 

The total working time is 11.5 hours (more than 10 hours) therefore the following overtime 

would be payable: 

• 0.5 hours at double time (19.00 – 19.30) as this time is outside the 12 hour span; and 

• 1 hour worked is paid at time and a half (18.00 – 19.00) as this time is beyond 10 hour 

maximum that ordinary hours may be worked (see clause 25.1(b)(ii) ‐ overtime). 

• If by working the additional hours up to 10 on the day, the employee exceeds 38 hours 

(where employed weekly) or 76 hours (where employed fortnightly) overtime would 

be payable for work beyond those hours (see clause 25(b)(i)). 

NB: If in the above example the mutual agreement was not recorded in writing, overtime 

would be payable for hours worked beyond the employee’s normal hours for that day. 

Clause 22.9 ‐ Sleepovers 

• What is an emergency for the purposes of payment 

A sleepover means sleeping in at night in order to be on call for emergencies. No work other 

than that of an emergency nature will be required to be performed during any sleepover. An 

emergency is any unplanned occurrence or event requiring prompt action. 

To date the meaning of “Emergency” for the purposes of payment within this clause has not 

been tested by FWA; however the following represents an example of industry custom and 

practice. 

An event requiring prompt action may initially be unplanned and unanticipated particularly 

if it has never previously occurred. If, however, the event became regular and anticipated, 

although still requiring prompt action, it may not constitute an emergency, for the purposes 

of payment under this clause. 


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An example of such a situation might involve a resident found to be disoriented and 

wandering for the first time late at night. The event has never previously happened and no 

history in the resident’s care plan, therefore an employee responding to help the resident 

would be paid as an emergency. 

If the behaviour of the resident over time became regular, anticipated and perhaps written 

into the resident’s care plan an employee assisting the resident would be entitled to be paid 

as a non‐emergency even though the event requires prompt action. 

Payment 

• An employee performing a sleepover is entitled to a sleepover allowance of 5.2% of 

the standard rate for each night on which they sleepover (see clause 22.9(d)). 

• An employee who performs emergency work during a sleepover is entitled to 

payment for the exact period of the work (see clause 22.9(g)). 

• An employee who performs work other than that of an emergency nature during any 

sleepover will be paid the appropriate hourly rate from the start of the sleepover to 

the end of the non‐emergency work, or from the start of the non‐emergency work to 

the end of the sleepover, whichever is the lesser, in addition to the sleepover 

allowance (see clause 22.9(f)). 

• Shift, weekend and overtime penalties are payable, where applicable, for work 

performed during a sleepover (see clause 22.9(g)). 

NB: A sleepover may be rostered to commence immediately at the conclusion of the 

employee’s shift and continuous with that shift; and/or immediately prior to the employee’s 

shift and continuous with that shift, and not otherwise. 

Example 

A Part‐time employee works a sleepover on Tuesday from 23:00 to 08:00. During the 

sleepover the employee is called to work from 03:00 to 03:30. What payment is applicable 

Where the work is an emergency the employee is entitled to payment for 30 minutes work 

(3:00 to 03.30) at the 15% shift loading in accordance with clause 22.9(g)(ii). 

Where the work is non‐emergency in nature the employee is entitled to be paid at the 15% 

shift loading in accordance with clause 22.9(g)(ii) from 23:00 to 03:30 in accordance with 

clause 22.9(f) as this period is less than the period 3am to 8am. 

ACSA News Report 


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EASTER PUBLIC HOLIDAYS 2011 

Each State and Territory has taken a different approach to Easter Monday/Anzac Day this 

year, either by substituting a day or declaring an additional day. Adding to the confusion, 

not all states have declared the same holidays for Easter with between 3 and 5 declared 

public holidays over the period. 

In all States and Territories 22, 25 and 26 April are declared holidays. In some States, either 

or both 23 and 24 April may also be declared holidays. 

The Public Holidays for Easter/ANZAC Day are listed below: 

New South Wales – 5 days 

Friday, 22 April 2011 (Good Friday) 

Saturday, 23 April 2011 (Easter Saturday) 

Sunday, 24 April 2011 (Easter Sunday) 

Monday, 25 April 2011 (ANZAC Day) 

Tuesday, 26 April 2011 (Easter Monday) [substitute for Easter Monday] 

NSW: www.industrialrelations.nsw.gov.au/About_NSW_IR/Public_Holidays.html 

Australian Capital Territory – 4 days 



Monday, 25 April 2011 (Easter Monday) 

Monday, 25 April 2011 (ANZAC DAY) 

Tuesday, 26 April 2011 [In recognition of the congruence of Anzac Day and Easter Monday] 

ACT:www.cmd.act.gov.au/__data/assets/pdf_file/0019/119323/publicholidays2011.pdf 

Victoria – 4 days 



Monday, 25 April 2011 (Easter Monday) 

Tuesday, 26 April 2011 (ANZAC Day ‐ substitute for Monday 25 April) 

VIC: www.vic.gov.au/Victorian‐Public‐Holiday‐Dates.html 

Queensland – 4 days 




Tuesday, 26 April 2011 (Easter Monday) 

QLD:www.justice.qld.gov.au/fair‐and‐safe‐work/industrial‐relations/public‐holidays/publicholiday‐dates‐for‐2008‐2013 

South Australia – 4 days 



Monday, 25 April 2011 (ANZAC DAY & Easter Monday) 

Tuesday, 26 April 2011 (Easter Tuesday) 

SA: www.safework.sa.gov.au/show_page.jspid=2483 


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Western Australia – 3 days 



Tuesday, 26 April 2011 (Easter Monday) 

WA:www.commerce.wa.gov.au/LabourRelations/Content/Employers/Pay_rates_leave_and 

_conditions/Public_holidays_in_Western_Aus.html 

Tasmania – 3 days 



Tuesday, 26 April 2011 (Easter Tuesday*) 

*Restricted public holiday currently observed by certain awards/agreements and the State 

Public Service 

TAS: www.wst.tas.gov.au/__data/assets/pdf_file/0006/157974/GB067.pdf 

Northern Territory – 4 days 




Tuesday, 26 April 2011 (Additional Public Holiday) 

NT: www.ocpe.nt.gov.au/legislation/holidays 

Public Holiday Entitlements 

The National Employment Standards (NES) entitle employees to take declared public 

holidays and to be paid their base rate for the ordinary hours they would have worked on 

the day. The NES also entitle employees to reasonably refuse to work on a public holiday. 

In relation to payments on a public holiday worked, notwithstanding that the NES may 

recognise a day as a public holiday, there is no statutory obligation under the Fair Work Act 

(“the Act”) that requires an employer to pay a penalty rate. Any applicable penalty rate will 

be derived from the relevant industrial instrument (the relevant modern award or 

agreement, or the employee’s contract of employment). 

Where an employee is covered by a modern award, the transitional penalty rate should be 

applied. The transitional arrangements under a modern award will apply where there is a 

difference (higher or lower) between the public holiday penalty rate under the previous prereform 

federal award or NAPSA and the relevant modern award. 

Substitute Holidays 

Clause 32.2 of the Nurses Award, allows the employer and majority of employees to agree 

to substitute another day for a public holiday. This means that the substitute day is the 

public holiday for both the NES and the award’s penalties. 

There is no equivalent provision to substitute a public holiday in the Aged Care Award or the 

Social, Community, Home Care and Disability Services Award. 


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NB 1. Holidays may be subject to change by proclamation or gazettal by State or Territory 

governments. 

NB 2. Local Public Holidays are recognised by the Act as public holidays for the purposes of 

the National Employment Standard (NES) and therefore become a statutory entitlement. 

(Source: WorkplaceInfo) 

FWA approves cashing out of annual leave in Enterprise Agreements 

The rejection of three enterprise agreements by Fair Work Australia Commissioner Ryan on 

the grounds that they included a clause allowing for the cashing out of annual leave has 

been overturned by the Full Bench on appeal. 

Section 93 of the Fair Work Act 2009 allows the cashing out of annual leave provided an 

employee retains at least four weeks of annual leave and the enterprise agreement covering 

the employee has a clause which allows cashing out. 

At paragraph 68 of the Armacell Australia decision Commissioner Ryan concluded that while 

the clauses in the agreement satisfied the Fair Work Act, employees were disadvantaged in 

that they could conceivably work for the life of the agreement without taking a real and 

effective break from work. 

In overturning Commissioner Ryan’s decision, the Full Bench made the following 

observations: 

1. The terms of the cashing out provision in s.93(2) are in the nature of protections for 

employees and could be described as safeguards. 

2. Accordingly, as a matter of interpretation, the legislature considered the safeguards 

specified in s.93(2) to be sufficient. It would be inconsistent to now hold that the 

safeguards are inadequate and that more or other safeguards should be applied. 

3. The Commissioner was concerned with situations in which employees might not take 

annual leave and the purpose of annual leave might be frustrated…valid concerns but 

beside the point. 

4. The BOOT test, as the name implies, requires an overall assessment to be made. The 

approach adopted by the Commissioner identifies a term (on his view anyway) less 

beneficial for an employee. There is nothing on the face of the Commissioner’s decision 

to indicate what account, if any, he took of any terms which might be more beneficial 

for an employee. 

Read the Full Bench Decision: [2010] FWAFB 9985 (24 December 2010) 

Leave during Floods or Natural Disasters 

The widespread and tragic recent floods have prompted the question about employee leave 

entitlements during periods of floods or other natural disasters. 

Leave for non‐attendance due to floods or natural disasters 

Whilst some awards or agreements contain provisions about leave for non‐attendance due 


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to floods or other natural disasters, the Aged Care Award 2010, Nurses Award 2010 and the 

SCHCDSI Award do not. 

As there is no specific leave entitlement for an employee unable to attend work due to 

floods or other natural disasters under the Fair Work Act 2009 the question of the approval 

(or otherwise) of paid or unpaid leave is purely at the discretion of the employer. 

Carer’s leave if schools close due to the floods 

Employees who have an entitlement to paid personal leave under the National Employment 

Standards (NES) in the Fair Work Act 2009 are entitled to take carer’s leave to provide care 

or support to a member of their immediate family, or a member of their household, who 

requires care or support because of an unexpected emergency. This includes a natural 

disaster. 

Employees who have exhausted their paid personal leave entitlement, and casual 

employees, are eligible for up to 2 days unpaid carer’s leave per occasion in the event of an 

unexpected emergency. 

An employer may require an employee to provide evidence in support of the leave period. 

Employer shut downs as a result of floods or natural disasters 

Section 524 of the Fair Work Act 2009 includes provisions which enable employers to stand 

down employees, without pay, where they cannot usefully be employed during a period 

because of any stoppage of work for which the employer cannot reasonably be held 

responsible, such as a natural disaster. 

Emergency Services Leave to assist with flood‐relief operations 

Emergency services leave is part of the entitlement to ‘community services leave’ from the 

NES. The relevant sections of the Fair Work Act 2009 are ss108–112. 

A full‐time or part‐time employee (who is a member of a recognised emergency 

management body) is entitled to take a period of unpaid leave to attend an ‘eligible 

community service activity’, which includes a ‘voluntary emergency service activity’. The Act 

does not specify any minimum or maximum time limits for an emergency service activity. An 

employer is entitled to set a maximum period of absence, and is also entitled to make a 

request to the emergency service organisation that the employee be released from 

emergency duties if business performance is being disrupted, but cannot insist. 

An employee who wishes to take a period of community service leave must comply with the 

notice and evidentiary requirements in addition to meeting the criteria found under the 

relevant sections of the Act. 

There is no legal obligation under the NES to pay the employee for any absence on 

emergency service leave. However, the employee’s period of service continues unbroken 

during the period of leave, so other entitlements continue to accrue during the period of 

leave, such as entitlements to other forms of leave. 


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Emergency Services: 

For more information on what to do in the event of floods or other natural disasters please 

visit: 

• Australian Government: 

Australian Government Disaster Assist 

• Queensland Government: 

Disaster relief and recovery 

• NSW Government: 

Emergency Management NSW 

• South Australian Government: 

Department for Families and Communities Disaster Recovery 

• Victorian Government: 

Department of Human Services Emergency Management 

• Western Australian Government: 

Fire & Emergency Services Authority of Western Australia 

• ACT Government: 

ACT Emergency Services Agency 

• NT Government: 

Northern Territory Emergency Service 

Equal Remuneration Case Update 

Australia’s largest industrial hearing continues with at least 20 lawyers facing off before the 

full bench of FWA in the most important pay equity case for four decades. The landmark 

case concerns the ASU’s push for an equal pay order in the social and community services 

sector. 

The nationwide case before Fair Work Australia is seeking large pay rises for tens of 

thousands of workers and is based on a 2009 Queensland decision, which awarded pay rises 

of up to 37 per cent over three years. 

Unions argue that workers in the female‐dominated sector have suffered from their work 

historically being regarded as ''women's work.” If the union case is successful, much of the 

burden would fall on State governments, which fund many of the programs undertaken in 

the sector. 

The Age recently reported that the equal pay case could cost between $700 million and $1.7 

billion over four years in Victoria alone. Such an estimate however fails to consider the 

significant flow‐on consequences to other areas of the labour market, including Home Care. 

Members interested in the latest developments can access FWA’s dedicated website 

containing transcripts of the day’s hearings and copies of all submissions filed: 

http://www.fwa.gov.au/index.cfmpagename=remuneration&page=introduction 

(Source: The Age) 


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