Important Employment Issues That NDIS Providers Should Be Aware Of
Businesses that engage employees to deliver services to NDIS participants have obligations under the Fair Work Act 2009 (Cth), the National Employment Standards and the National Employment Awards. This articles provides commentary on important employment issues that NDIS providers should be aware of.
Understanding the Employment Awards
Employees of most organisations delivering services to people with disability are covered by the Social Community, Home Care and Disability Services Award 2020 (“SCHADS Award”). [1]
The SCHADS Award has four “streams” which include workers in disability services, home care, supported housing and community services. Other Employment Awards may apply depending on the nature of the work performed and the employee’s qualifications. [2]
Understanding which Employment Award applies (and its rules) is important because it determines the terms and conditions for your staff, including:
penalty rates for work outside normal hours;
minimum pay rates at different classification levels and how staff progress through each level;
when staff who are assigned higher duties temporarily are entitled to pay at a higher classification level;
entitlements to overtime and how time in lieu can be agreed instead of payment for overtime; and
the minimum number of hours that casual workers must be paid for per shift. [3]
SCHADS Award rules to remember
Here are some of the rules in the SCHADS Award that sometimes get overlooked:
Generally, seven days’ notice of changes to employee’s roster must be given, unless another staff member is absent due to illness or there is an emergency. [4]
Notice of client cancellations for home care services must be given to full or part-time employees by 5pm the day before the appointment – if the employee does not receive notice, they are entitled to payment for the minimum hours. [5]
Allowances for staff working “broken shifts” are calculated according to the finishing time of the broken shift. [6] Staff working broken shifts that span across more than 12 hours are entitled to 200% penalty rate.
Depending on what type of shift an employee works, there are different requirements for minimum amount of rest time that must be provided between shifts. [7]
Where time of in lieu is agreed instead of payment for overtime, the time off must be equivalent to the overtime hours worked. [8]
Twelve months continuous, satisfactory employment does not entitle employees to progression to the next pay point in their classification (see below).
Pay classifications and work that requires higher pay rates
The Federal Court of Australia recently clarified that staff are not entitled to automatically progress to the next pay point if, during the last 12 months, they have demonstrated satisfactory performance. [9]
However, certain streams of the SCAHDS Award have specific rules for what classification an employee must commence on when the start employment and how some employees progress through pay points within classification levels for different streams. [10]
For example, in relation to disability services:
staff working full-time in certain roles may be entitled to progress to a Level 2 pay point classification on completion of 12 months experience in the role (or part time on completion of 1976 hours). [11]
staff who hold certain qualifications may be entitled to commence, or be appointed, at a higher pay point classification (Level 2, Level 3 or Level 4), if they are required to undertake work relating to those qualifications. [12]
Also remember that staff who perform duties of another employee in a higher classification for more than five continuous working days are entitled to be paid at the other employee’s classification level. [13] Different rules apply for staff delivering home care services. [14]
Right to request casual conversion
Recent changes to the Fair Work Act 2009 (Cth) give casual employees the right to ask for conversion to full or part-time employment if they have worked a regular pattern of hours over a period of at least 12 months and they could continue to work those hours without significant changes to their employment. Employers are also required to provide a copy of the “Casual Employment Information Statement” to all casual employees.
What providers should be doing
We encourage providers to review their agreements and processes to ensure compliance with employee entitlements and the new casual conversation obligations. Providers using contractors should also review those agreements and the nature of the engagement to minimise the risk of contractors being mischaracterised as employees.
This article was written by Kai Sinor, Senior Lawyer from our partner MPS Law. Centro ASSIST customers can access free initial legal advice from the NDIS experts at MPS Law. Click here to find out more.
1 The Social, Community, Home Care and Disability Services Award 2020 covers crisis assistance and supported housing, social and community services, home care, and family day care scheme sector.
2 For example, providers delivering NDIS funded supports and services to people with disability living in aged care facilities may have staff covered by the Aged Care Award 2010 or the Nurses Award 2010. Providers delivering certain forms of therapy may engage staff covered by the Health Professionals and Support Services Award 2010.
3 Fair Work Commission, Social, Community, Home Care and Disability Services Industry Award 2010 , MA000100, 26 March 2021 cl 28.2 (‘SCHADS Award’). Read a summary of recent updates to the SCHADS Award made by the Fair Work Commission as part of its 4 yearly review here.
4 SCHADS Award (n 3) cls 25.5(a)-(b). See also cl 25.5(c).
5 SCHADS Award (n 3) cl 25.5(f).
6 "Broken shifts” are where the worker has one or more breaks (not including meals) and the shift is less than 12 hours. All work performed beyond the maximum span of 12 hours is paid at double time. This rule applies only to employees engaged to provide disability services or home care services: SCHADS Award (n 3) cl 25.6.
7 Generally, employees should have a rest no less than 10 hours between shifts. See: SCHADS Award (n 3) cl 25.4(a). Different rules may apply (by agreement) if the person’s next shift is a sleepover shift (in these circumstances, generally no less than 8 hours). For all employees (except casuals), a minimum of 10 hours off is required after the person works an overtime shift.
8 SCHADS Award (n 3) cl 28.2(c).
9 Thompson v Arbias Limited [2020] FCCA 2829 at [356]. See SCHADS Awards (n 3) cl 13.3(a).
10 Employees must inform employees in writing of their classification when they commence employment: SCHADS Award (n 3) cl 13.2.
11 SCHADS Award (n 3) sch B.1.3(d) and (g). Relevant experience in the role must be obtained during the previous three year period.
12 Persons who have completed a level 4 certificate and are required to undertake related work will be appointed Level 2, Pay Point 1. Persons who have completed an appropriate diploma and are required to undertake related work will commence at pay point Level 2, Pay Point 2. See: SCHADS Award (n 3) sch B.2.1(e)-(f). Graduates with a three year degree undertaking related work will commence at pay point Level 3, Pay Point 1; graduates with a four year agree will commence at pay point Level 4, Pay Point 1: SCHADS Award sch B.3.1(g).
13 SCHADS Award (n 3) cl 30.2.
14 SCHADS Award (n 3) cl 30.1.
This commentary is general in nature and provided for informational purposes only. It is not intended to be comprehensive and does not constitute legal advice. You should seek legal or other professional advice or consult with the appropriate government authority if you are unsure about how the issues raised in this commentary apply to the circumstances of your business.
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