Care workers who undertake sleepovers as part of their duties are the focus of a case being heard by the Fair Work Commission this week.
The application was brought by employer organisation, The Australian Industry Group and is being contested by a number of unions, including the Australian Services Union (ASU).
In Newsreel-style, here are the media statements from the opposing parties, so readers can form their own opinions:
ASU NSW & ACT secretary Angus McFarland said:
“The business lobby is hellbent on making sleepover shifts a nightmare for community and disability support workers.
“It’s outrageous that employers are attempting to drag the pay and conditions of dedicated sleepover care workers backwards. Workers could face a period of 28 hours away from home, without proper rest, breaks, or penalty rates.
“Community and disability support workers who stay overnight at their workplaces receive overtime pay if they work more than 10 hours before or after their sleepover but the big business lobby wants to double the hours required before overtime applies. Effectively, employers want workers to be on shift for more than a whole day for less pay.
“Sleepover shifts are essential to support the members of our community who may need assistance anytime during the night including people with disabilities, victims of domestic violence, and children in out-of-home care.
“Sleepover shifts aren’t ‘breaks.’ Workers are away from their families, confined to their workplace, and struggle to get a restful night’s sleep. They cannot leave freely and are frequently woken up at all hours to support clients in need. It’s fair and reasonable that sleepover shifts are not currently considered a break between rostered periods – big business’ attempt to change this devalues workers and disregards their rights.
“Ai Group is setting a dangerous precedent for worker and client safety. Doubling a worker’s hours without decent remuneration and a real restful break is not only deeply unfair, it’s negligent. Workers are already feeling burnt out and fatigued nevermind when they have to work longer hours for less pay.
“This will jeopardise the safety, wellbeing and quality of care provided to clients. A fatigued, overworked workforce is more likely to make mistakes and not be fully present for the people who rely on their full attention and care.
“The sector already experiences a high turnover of staff and changes to deteriorate pay and conditions will only exacerbate it. An attempt to extend hours in the name of continuity of care for clients means nothing if more staff leave the sector as a result.
“Ai Group’s attempt to have their backward rules applied retrospectively is arrogant and self-serving that could lead to employers seeking to recover payments from employees.
“Big business needs to wake up and withdraw their attack on our award. Sleepover shifts need to be fixed, not taken backwards.”
Ai Group Chief Executive Innes Willox said:
“Ai Group is not seeking a radical change to the current award terms or to take anything away from anyone.
“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.”
