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Media release

Defrauding the NDIS of millions is appalling

NDS has today welcomed the arrests of five people arising from allegations of attempts to defraud people with disability

Latest developments in the SCHCADS Award Review

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4/03/2019

The Fair Work Commission (FWC) review of the Social, Community, Home Care and Disability Services (SCHCADS) Industry Award review is continuing. A range of claims for substantive variations were recently lodged by various unions. Submissions in reply from employer parties are due on 5 April. Following that, a hearing will commence on 12 April and may continue to 18 April, if necessary. NDS has been represented in the FWC during the Award review by Jobs Australia (JA). JA is currently analysing the union claims and is likely to oppose a number of them. JA would like to hear from NDS members keen to provide witness evidence of client needs and operational requirements such as service rosters. Members interested in assisting JA with submissions or witness appearances should contact Paul Musso at . In early 2017, employer groups and unions reached agreement on several Award-related issues and filed a joint submission in support of those proposed changes. These included matters such as a client cancellation policy, remote response work and paid travel time. In exchange, a range of other proposed claims were withdrawn by both unions and employers. At the end of 2018, the Australian Industry Group (Ai Group) intervened seeking to oppose the joint submission. Ai Group has raised a number of issues, but their central concern relates to travel time. Employers represented by Ai Group are concerned that the NDIS does not adequately recognise or fund this type of travel. Our position has been that there is an industrial obligation that cannot be avoided on the basis of inadequate pricing and that this does create a real problem. Recent conciliation conferences in relation to the Ai Group intervention have made progress on clarifying some drafting issues. However, the status of the joint submission remains unresolved at the moment, and travel time is the main point of contention. It is expected that the full bench will make a provisional decision around the middle of the year, with a further opportunity for parties to lodge submissions about the drafting of any proposed changes. Federal Legislation passed in December 2018 modified the process for amendments to Modern Awards, with bipartisan support. The new provisions of the Fair Work Act remove the need for formal four-yearly reviews of Modern Awards. Parties will be able to apply to the FWC to have Award clauses modified at any time. Consequently, it is extremely important that ongoing data collection is conducted that ensures employer representatives can initiate or respond to applications to vary the Award at any time. There is no large scale data set on the disability workforce which aligns neatly with the disability sector.Award review issues that require close monitoring in the context of the NDIS include provisions for sleepover arrangements, travel time, and a general trend toward casualisation. While casualisation is not an award issue as such, the interaction between NDIS pricing and award provisions regulating casual and part-time employment arrangements and hours of work remains highly relevant. NDS is concerned that NDIS pricing has the potential to act as an impediment to the attraction and retention of a skilled and capable workforce. In December 2018, NDS Workforce Wizard collected data from 187 organisations, comprising of 41,119 workers in the disability and allied health sectors. While disability service providers are hiring more casual workers, the trend towards increased casual employment since 2015 appears to have stabilised. The average proportion of casual employment increased from 40.9 per cent in September 2015 to 45.2 per cent in December 2018. However, it has remained at around 45 per cent since September 2017, with the exception of the September 2018 quarter (47.3 per cent).Casual employment case law updateA number of Federal Court cases have established new case law on what constitutes casual employment. There are changes proposed to the NES as part of a response by government to these recent cases. Australian Business Industrial (ABI) have lodged an application in the SCHCADS Award review seeking recognition of a new type of employee engaged under a ‘flexible ongoing employment’ arrangement. Workers hired under the proposed ‘flexible ongoing employment’ category would receive a 10 per cent loading on top of the permanent employee hourly wage rate, in exchange for flexible rostering subject to certain weekly minimum hours. Two hours per week are proposed for disability support workers, which aligns with the minimum shift time in the Award. Unlike casuals, flexible ongoing employees would be covered by benefits available to permanent employees under the National Employment Standards, including accrual of leave based on hours worked. Unions have indicated they will oppose the proposal, citing the minimum weekly hours of engagement (from one to three hours) as unacceptable. NDS will monitor developments in this area and notify members of any implications. NDS’ relationship with JANDS has been working with Jobs Australia to re-invigorate a long-term strategic relationship with a new emphasis on data collection. NDS and JA are discussing how to add value to IR advice and support provided by JA as a member benefit. NDS members are currently eligible for a discount on the fee for associate membership of JA. NDS and JA will examine ways to collect and collate data resulting from NDS members (and other providers of disability services) seeking advice from JA and data collection that identifies issues that may merit applications to vary the SCHADS Award. We will keep members informed of developments in this area.

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