2025 WAIRC 00317
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00317



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 9 APRIL 2025, THURSDAY, 10 APRIL 2025



DELIVERED
:
THURSDAY, 29 MAY 2025



FILE NO.
:
M 231 OF 2021



BETWEEN
:
ALEX THOMAS


CLAIMANT





AND





PARKERVILLE CHILDREN & YOUTH CARE INCORPORATED


RESPONDENT

CatchWords : INDUSTRIAL LAW – Modern award coverage – Social and community services sector – Classification of Assigned Care Worker within Social Community, Home Care and Disability Services Industry Award 2010 [MA000100] – Alleged contravention of terms of modern award on pay rates for classification – Alleged failure to pay in full for work performed
Legislation : Fair Work Act 2009 (Cth)
Instrument : Social Community, Home Care and Disability Services Industry Award 2010
Crisis Assistance, Supported Housing Industry – Western Australia Interim Award 2011
Case(s) referred
to in reasons: : Re The Australian Industry Group [2024] FWCFB 385
Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; (2014) 245 IR 449
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426
Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54
Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182
Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 214 ALR 56
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638
Bis Industries Limited v Constructions, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374
Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCA 621
Fair Work Ombudsman v Da Adamo Nominees Pty Ltd No 4 [2015] FCCA 1178
Sethi v Bhavsar [2020] WASCA 52
Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236
Result : The claim is dismissed.
Representation:
Claimant : In person
Respondent : Mr SM. Billing (of counsel) and with him, Mr A. Ceklic (of counsel)



REASONS FOR DECISION
Introduction
1 Alex Thomas (Mr Thomas) was employed by Parkerville Children & Youth Care Incorporated (the respondent) as an Assigned Case Worker (ACW) in the Belmont Youth Program (BYP) from 9 July 2012 to 20 August 2021.
2 The BYP is part of a residential program implemented by the respondent who is contracted to provide out of home care and services to young people under the age of 18 (Young People in Care or Young Person in Care) in the statutory care of the DirectorGeneral of the Department of Communities (the Department). Exhibit 17 – Witness Statement of Jonathon Rylatt dated 31 January 2025 at [3] and [4].

3 The respondent has no independent authority with respect to the statutory care of Young People in Care.
4 The respondent endeavoured to provide a safe and therapeutic home environment for vulnerable Young People in Care, staffed by ACWs and Therapeutic Carers (TC) who gave direct 24-hour care in the home on a shift-based roster. One of the issues in dispute in this claim is the roles and responsibilities of an ACW as compared to a TC.
5 An ACW was allocated one Young Person in Care with generally higher needs, whereas a TC was allocated four to five Young People in Care. Although both roles worked within a home environment, and there is overlap between the roles, there are also some differences.
6 The fundamental difference between the two roles, as alleged by Mr Thomas, is that the ACW role incorporates case management exceeding that of a TC, and the ACW role is characteristic of a social and community services employee level B4 in Schedule B of the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS) (Level B4), a modern award. This is the second issue in dispute, being the application of the SCHADS to Mr Thomas’s employment.
7 For the duration of Mr Thomas’s employment, the respondent applied the Crisis Assistance, Supported Housing Industry – Western Australian Interim Award 2011 (CASHI Award), a state award, to his employment. Exhibit 1 – Witness Statement of Alex Thomas and Attachments dated 20 December 2024 at [7] and AT2.

8 In or around December 2020, the Australian Services Union – Western Australian Branch informed the respondent that, in its view, amongst other things, the respondent was a national system employer, rather than a state system employer, and that the respondent’s employees were covered by SCHADS, not the CASHI Award. Exhibit 1 at AT4.

9 This led to a protracted review of the respondent’s operations, which resulted in a determination by the Fair Work Ombudsman (FWO) in or around December 2022 that the respondent was a national system employer, and an indication by the respondent that two modern awards applied to its employees, relevantly that the SCHADS applied to all employees other than clinical staff. Exhibit 11 – Email forwarded by Jonathan Marin dated 24 July 2022 and Exhibit 12 – Email from respondent dated 21 December 2023.

10 There was also an indication that the respondent was engaging in a program of reconciling any consequential underpayments to current and former employees, including Mr Thomas.
11 This came to a halt in late 2023 to early 2024 when the respondent made an application to the Fair Work Commission (FWC) disputing the FWO’s determination about the SCHADS coverage of TCs in the social and community services sector and the application of other provisions under the SCHADS. The respondent sought to ‘clarify award coverage in respect of persons undertaking therapeutic care duties in the social and community services sector’ on the basis that in its view it was ambiguous or uncertain whether TCs fell within the classifications listed in Schedule B of the SCHADS: Re The Australian Industry Group [2024] FWCFB 385 (Application Decision) at [2] and [7].
12 Notably, the respondent’s application to the FWC did not expressly refer to any ambiguity or uncertainty of coverage related to ACWs. It is not clear why this was the case, but from snippets of the respondent’s evidence and its submissions, the following explanations are possible:
(a) the respondent changed its care model and no longer employed ACWs; or
(b) the respondent considered that ACWs and TCs performed the same role, and that any distinction between the two roles did not substantially change their classification under the SCHADS.
13 However, there always remained a residual coverage issue because it is clear from the respondent’s communications to its employees that the reconciliation of any underpayments would include former employees, including Mr Thomas, who was an ACW. Further, from Mr Thomas’s perspective this approach is disingenuous, and its purpose is to escape liability to him and others like him.
14 On 25 September 2024, the FWC amended the definition of ‘social and community services sector’ in SCHADS and associated clauses in Schedule B. Re The Australian Industry Group [2024] FWCFB 385 (Application Decision).
The amendment does not apply to Mr Thomas’ employment period with the respondent.
15 There is some sympathy for Mr Thomas’s perception where the respondent’s grounds relied upon in support of part of its application in the Application Decision give the distinct impression it did not contest the overall application of the SCHADS to its care employees, nor does it resist any amendment to the SCHADS. However, it appears the respondent relies on the responsibilities of TCs that do not exactly mirror the evidence of the responsibilities of ACWs at the time Mr Thomas was employed. Application Decision at [2].

16 Therefore, some care needs to be taken with respect to the respondent’s preferred position in the Application Decision, which is; the FWC found ambiguity in the definition of ‘social and community services sector’ relating to the provision of personal care in the SCHADS as it relates to TCs, therefore the Court should similarly find such ambiguity as it relates to ACWs. This position neglects any distinction between the role of TC and ACW, which is a matter for evidence. It is also a matter for evidence as to the skills and duties of the ACW role and how this is assessed against the classification criteria under Schedule B of the SCHADS.
17 The third issue in dispute between the parties is the amount, if any, of any alleged underpayment if the Court finds that both the SCHADS covered Mr Thomas’s employment by the respondent and the role of an ACW is classified as Level B4. In respect of this issue, the respondent says that if the Court finds the SCHADS covers Mr Thomas’s employment by the respondent, his role as an ACW is classified as social and community sector services employee level 2 (Level B2) and there is no underpayment, because Mr Thomas was paid a higher rate of pay under the CASHI Award.
What is Claimed?
18 Mr Thomas claims an underpayment of $106,728.94 for the period 31 December 2015 to 25 September 2021, interest of 6% on the judgment amount and, pursuant to s 546 of the Fair Work Act 2009 (Cth) (FWA), the imposition of a civil penalty.
19 In claiming an underpayment, Mr Thomas alleges the respondent has contravened s 45 of the FWA in that the respondent has contravened a term of the SCHADS by failing to pay him an amount required to be paid at Level B4, and contravened s 323 of the FWA in that the respondent has failed to pay him in full for the performance of work. Mr Thomas’s Amended Statement of Claim lodged on 29 August 2024.

20 Schedule I to this decision sets out the law relevant to jurisdiction, practice and procedure of the Industrial Magistrates Court in determining this case. Relevant to matters identified under the heading, ‘Jurisdiction’ in Schedule I, I am satisfied: the respondent is a national system employer; and Mr Thomas was an individual who was employed by the respondent and is a national system employee.
The Parties’ Evidence
21 Mr Thomas relied upon his own evidence contained in a written statement dated 20 December 2024 and a number of documents were also referred to and tendered into evidence. Mr Thomas also gave oral evidence.
22 The respondent relied upon the evidence of Lauren Walter (Ms Walter), Manager of Group Foster Care, in a witness statement dated 31 January 2025 and the evidence of Jonathon Rylatt (Mr Rylatt), Executive Manager of one of the respondent’s programs, in a witness statement dated 31 January 2025. Both referred to documents annexed to their statements and also gave oral evidence.
Brief Outline of the Respondent’s Operations at BYP
23 The following summary is taken from Mr Rylatt’s witness statement, including the BYP policies and processes manual annexed to his witness statement, Exhibit 17 at JR1
and the example Therapeutic Care Plan (TCP) tendered by the respondent. Exhibit 15 – example Therapeutic Care Plan for Belmont Youth Programme.

24 The respondent’s Out of Home Care Program (OOHC) between 2009 and 2024 consisted of three services:
· Services one and two were Family Group Homes and BYP providing care in homes owned by the respondent or the Department, staffed by ACWs and TCs and typically accommodating four to five Young People in Care; and
· Service three was Therapeutic Foster Care provided by volunteer foster carers in their own homes.
25 The three services were almost entirely funded by the State of Western Australia.
26 The purpose of services one and two (including BYP) was to provide a homelike environment for Young People in Care, who were predominantly disadvantaged in some way. BYP provided medium to longterm placements for Young People in Care aged between 12 and 18 years of age. Referrals to BYP were made by the Department and were assessed by senior managers for the respondent.
27 The policies and processes at BYP were heavily regulated as prescribed in the BYP policies and processes manual. Notably, BYP staff were required to comply with the respondent’s policies and processes, and senior management were responsible for ensuring the BYP policies and processes manual was reviewed, updated and current.
28 The BYP policies and processes manual outlined what was required and expected of all BYP staff, including ACWs, regarding the Young People in Care. For example, the BYP policies and processes manual provided for wake times and bedtimes, use of electronic devices and television and computer systems. It also provided for the use of duress alarms and discharge from BYP, amongst other things.
29 Young People in Care had individual TCPs, which is based on a template document devised by the respondent to coincide with the ultimate responsibility of the Department for the overall care and goals of Young People in Care.
30 The Department always assumed the ultimate responsibility for Young People in Care, and to that extent a Departmental Case Manager or worker was responsible for any decisions as it related to the care of the Young People in Care.
31 That is, the individual TCP was informed by the Department and the Departmental Case Manager’s care plan for Young People in Care.
32 The TCP is, in essence, a communication tool for the Department and staff at BYP so that everyone involved in a Young Person in Care’s care is aware of and engaged in the care, including on a day-to-day basis.
33 ACWs and TCs both lived with the Young People in Care in homes on a 24-hour shift roster so as to provide supervision and a safe, stable and consistent home-like environment.
34 ACWs and TCs were supervised by Team Leaders who worked standard office hours and who did not provide a live-in function.
Mr Thomas’ Employment
35 While Mr Thomas commenced employment with the respondent in 2012, on 19 January 2016 he was offered a new contract of employment (the Offer Letter) Exhibit 1 at AT3.
. The relevant terms in the Offer Letter included that his terms and conditions were those set out in the Offer Letter, its attached Annexure and under the CASHI Award.
36 He was employed full-time to work an average of 38 hours per week worked across seven days in accordance with a roster or other arrangement determined by his manager to meet the operational requirements of the ACW position. His rostered hours included overnight shifts.
37 The ACW position was classified as Level 3 in the CASHI Award and his salary level commenced at Level 3.3. His annual salary was $63,416 per annum. Clause 5.2 of the Offer Letter.
Clause 5.3 of the Offer Letter provided that his:
[A]nnual salary as outlined [in cl 5.2] is designed to cover and offset the Award entitlements set out in Annexure A. The salary has been calculated to reflect the payments due to [him] under the Award for working the standard shift roster applicable to work at the [BYP]. The employer reserves the right to amend the shift roster and will provide notice of change in accordance with the Award.
38 Annexure A to the Offer Letter provided for the inclusions in the annual salary, including first aid allowance; ordinary time hours; payment of overtime for no meal break; payment for meals with clients; shift work and annual leave loading. It did not provide for the inclusion of overtime under cl 21 of the CASHI Award.
SCHADS Coverage
39 A modern award made by the FWC does not impose an obligation or give an entitlement unless the award applies to the employer and the employee. Fair Work Act 2009 (Cth) (FWA) s 46.
An award applies to the employer and the employee if the award covers each of them. FWA s 47.
An award covers an employer and an employee if the award is expressed to cover each of them. FWA s 48(1).
The starting point to determine award coverage are the words of the award itself. More specifically, it is ‘the objective meaning of the words used [in the relevant award] bearing in mind the context in which they appear and the purpose they are intended to serve’. Transport Workers Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; (2014) 245 IR 449 (TWU v Coles Supermarkets) at [22].

40 Resolution of the claim involves, in small part, the construction of terms in a modern award.
41 The principles applicable to the interpretation of industrial instruments are well known. In summary, the interpretation of an industrial instrument begins with consideration of the natural and ordinary meaning of the words used. City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426, 438 (City of Wanneroo).
An industrial instrument is to be interpreted in light of its industrial context and purpose and must not be interpreted in a vacuum divorced from industrial realities. City of Wanneroo 438, 440.
An industrial instrument must make sense according to the basic conventions of the English language. City of Wanneroo 440.
The circumstances of the origin and use of a clause is relevant to an understanding of what is likely to have been intended by its use. Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54.
Narrow and pedantic approaches to the interpretation of an industrial instrument are misplaced. Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182; Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 214 ALR 56.

42 An instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation.
43 Industrial instruments are usually not drafted with careful attention to form by persons who are experienced in drafting documents that have legal effect.
44 The following is also relevant:
· Ascertaining the intention of the parties begins with a consideration of the ordinary meaning of the words of the instrument. Ascertaining the ordinary meaning of the words requires attention to the context and purpose of the clause being construed. City of Wanneroo [53]  [57] (French J).

· Context may appear from the text of the instrument taken as a whole, its arrangement and the place of the provision under construction. The context includes the history of the instrument and the legal background against which the instrument was made and in which it was to operate. City of Wanneroo [53] - [57] (French J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638, [28] - [30] (Katzmann J).

45 Clause 4.1 of the SCHADS provides that the award covers employers throughout Australia in the:
(a) crisis assistance and supported housing sector;
(b) social and community services sector;
(c) home care sector;
(d) family day care scheme sector;
and their employees in the classifications listed in Schedule B to Schedule E to the exclusion of any other modern award.
46 The respondent did not refer to, or rely upon, any of the exclusions in clauses 4.2 to 4.5 of the SCHADS.
47 Neither party referred to, or relied upon, the sectors referred to in cl 4.1(a), (c) and (d) of the SCHADS. The definitions of ‘family day care scheme sector’ and ‘home care sector’ in cl 3.1 of the SCHADS plainly do not apply to the respondent’s operations. The definition of ‘crisis assistance and supported housing sector’ in cl 3.1 is unhelpful but where neither party sought to argue the respondent’s operations came within that sector (whatever it might be), I will not consider it further.
48 The respondent admitted it was an employer that undertook work in the social and community services sector, The respondent’s amended response lodged on 20 September 2024 at [15] and Application Decision at [2] (at 6).
but this did not extend to the employment of persons undertaking personal care work, including therapeutic care at BYP, under the then definition in cl 3.1 of the SCHADS.
49 Therefore, for Mr Thomas to be covered by the SCHADS, he must prove on the balance of probabilities that:
(a) the respondent is in the social and community services sector; and
(b) he is employed by the respondent; and
(c) his employment is in the classifications listed in Schedule B.
50 Mr Thomas litigated his claim on a particular basis: the classification for an ACW was Level B4, not Level B1 or Level B2.
51 The respondent defended Mr Thomas’s claim on the basis that Mr Thomas’s employment was not covered by SCHADS because, as an ACW, his employment was not in the classifications listed in Schedule B where the work performed by ACWs was the provision of therapeutic care and direct personal care to Young People in Care, and at the time this type of care was limited to work within disability services.
52 Alternatively, if the Court found Mr Thomas’s employment was covered by SCHADS, the respondent says his employment classification was not Level B4 but was Level B2.
53 Therefore, in this case, where the significant common issue in dispute is Mr Thomas’s classification within the SCHADS (leaving aside whether the SCHADS covers Mr Thomas’s employment), and where that issue is one of the elements to be determined for the purposes of determining if the SCHADS covered Mr Thomas’s employment, this issue will be discussed first.
54 That is, does Mr Thomas’s employment as an ACW fall within the classification in Schedule B of the SCHADS? Mr Thomas’s case is that his employment as an ACW fell within the classification Level B4.
Is an ACW classified within Schedule B of the SCHADS?
55 Schedule II to these reasons set out the classification structure in Schedule B in the SCHADS.
56 Clause 13.1 of the SCHADS provides that the definitions for the classification levels in cls 15 to 17 are contained in Schedules B to F. Clause 15 applies to social and community sector services employees. Clause 13.3 of the SCHADS provides for the progression of employees from one pay point to the next and for the movement to a higher classification, which may only occur by way of promotion or reclassification.
57 The classifications in Schedule B, consistent with the classifications in Schedule C, are divided into subcategories of criteria that employees at the various levels may have. Schedules D and E, relevant to family day care and home care, do not have the same level of detail, likely consistent with the employment being undertaken in a less formal environment.
58 The classifications in Schedule B (and C) are hierarchical, where Level B1 is the lowest level and Level B8 is the highest level. It is fair to say that the expectations, responsibilities and requirements of any positions under the classifications increases as the level increases.
59 The criteria for each classification level includes a broad statement of the characteristics and the responsibilities of the particular level, the requirements of the position, which is further sub-divided into skills, knowledge, experience, qualifications and/or training, organisational relationships, and extent of authority.
60 It is also fair to say that employees classified under Schedule B are likely to work in a wide range of roles, from the provision of direct care to individuals to the management of staff and organisational responsibilities and may have little or no tertiary or post-graduate qualifications.
61 It will be necessary to focus on these criteria, particularly those applicable to Level B4, to determine whether the ACW role comes within the Schedule B classification relied upon by Mr Thomas.
62 In determining the award classification which is ‘most appropriate’ of an employee’s position, regard is had to the primary purpose of the employment, the range of tasks for which the employee is trained, and the classification which is the ‘most comprehensive match’ with the work in question. Bis Industries Limited v Constructions, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374 at [302] referring to TWU v Coles Supermarkets at [31]  [35].

63 The focus is upon the identification of the skills and duties required of an employee who is called upon to perform the function that is required to be performed by the employer. The individual performance of a particular employee (e.g. quality and quantity of work, capacity for more complex work) is less relevant than the skills and duties necessary to perform the function required to be performed by the employee. Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCA 621 at [32]; Fair Work Ombudsman v Da Adamo Nominees Pty Ltd No 4 [2015] FCCA 1178 at [256].

Mr Thomas’s Undisputed Evidence
64 One of the difficulties with Mr Thomas’s evidence is that he was prone to making conclusionary statements, even when given an opportunity to further explain his evidence. This resulted in gaps in his evidence. It also created an impression there was a degree of obfuscation about what his role, in fact, entailed, and that he tailored parts of his evidence to fit within Level B4.
65 However, parts of his evidence were undisputed and was supported by other evidence.
66 During his employment with the respondent, Mr Thomas did not hold any formal qualifications. He commenced a Diploma of Community Services in or around late 2019, but it was unclear if he completed this qualification when he ceased employment. If he did complete this qualification, it was towards the end of his employment with the respondent.
67 Mr Thomas commenced full-time youth work in 2010, following which he was employed by the respondent in 2012 as an ACW at BYP.
68 The following aspects of the work undertaken by Mr Thomas as an ACW at BYP were not disputed by the parties:
(a) providing direct care and support to principally one Young Person in Care (hence the title of the ACW role) in a home environment, with direct care and support being provided to more than one Young Person in Care depending on the shift roster. By way of example, during a night shift there would be one ACW in attendance responsible for more than one Young Person in Care;
(b) the direct care included assisting the Young Person in Care to self-care; provide meals where required; attend school or other training or external appointments; complete homework; get ready for bed; and maintain a routine;
(c) the support included providing a safe home like environment, including some domestic tasks such as cleaning; eating an evening meal with the Young Person in Care; attending recreational activities; speaking with the Young Person in Care about the Department’s policies; advocating on the Young Person in Care’s behalf and ensuring they understand their rights; and providing emotional support;
(d) communication with various stakeholders, including communicating with the Department, school, other persons like family in the Young Person in Care’s life to ensure stakeholders know what is happening with the Young Person in Care; and
(e) administrative tasks, including maintaining care plans and case notes and records for the Young Person in Care; reporting incidents; attending team and stakeholder meetings; sending correspondence to the Department and other stakeholders; managing a budget for the household and keeping the relevant financial records; undertaking training when required; and from time to time orientating a new ACW to BYP.
69 Mr Thomas agreed that as an ACW:
(a) no staff report to him;
(b) he had no ongoing supervisory role;
(c) he had no authority to approve staff overtime or staff leave;
(d) he did not undertake any performance review of other staff;
(e) he was required to follow the respondent’s BYP policies and procedures;
(f) he did not develop any of the BYP policies and procedures, but he may have given feedback on the policies and procedures from time to time; and
(g) he was required to complete the respondent’s TCP, but he did not develop the TCP.
70 The real issue in dispute was the role ‘case management’ played in the ACW position, with Mr Thomas emphasising this aspect of the ACW position occupied a significant part of the position and/or was a distinguishing feature to the TC position, warranting the ACW position being classified at a higher level than that suggested by the respondent. The respondent considers the two positions as generally identical and that any differences between the two had no substantial effect on the appropriate classification. That is, and put simply, if SCHADS covered Mr Thomas’s employment, the appropriate classification was Level B2, the same as a TC.
Mr Thomas’s Evidence on the Role of Case Management
71 Mr Thomas heavily leaned into the role of case management in the ACW position, which he said involved participating in the assessment, intake and discharge of the Young Person in Care; developing and implementing care plans and safety plans; collaborating with the Young Person in Care and their family along with various stakeholders; providing counselling and professional support to the Young Person in Care and their families to build on existing strengths and address issues and advocating for best outcomes for the Young Person in Care. Exhibit 1 at [11.1].

72 When asked to expand on this, Mr Thomas admitted that the ‘case management’ mainly involved one Young Person in Care and involved liaising with their case worker at the Department and other stakeholders. This also involved, on his evidence, ‘developing… Care Plans’ Exhibit 1 at [11.1].
and being responsible for and implementing it for the Young Person in Care. He said he contributed to safety planning for the Young Person in Care and attended multi-disciplinary team meetings contributing to the overall care of the Young Person in Care. While Mr Thomas admitted the TC role also did many of the same ‘case management’ functions, he said an ACW did it to a higher degree.
73 On Mr Thomas’s evidence, the distinguishing difference between the ACW position and the TC position was a TC did not attend multi-disciplinary team meetings and did not contribute to the same degree to the care planning and safety planning for a Young Person in Care.
74 Mr Thomas relied upon documents to support his evidence, including the:
· BYP policies and processes manual; and
· Job Description Form (JDF) for ACWs Exhibit 1 at AT5.
and TCs. Exhibit 18 – Witness Statement of Lauren Walter dated 31 January 2025 at LW1.

75 It was apparent Mr Thomas took particular issue with what he perceived as a reduction in the ACW role by reference to the TC role.
The Respondent’s Evidence on the Role of Case Management
76 In his oral evidence, Mr Rylatt said ‘case management’ as a concept has different meanings (depending on the context). He agreed the use of the phrase was problematic in terms of the ACW role and considered ‘case work’ was a better phrase to use for the role. In that sense, Mr Rylatt said the respondent did not have the statutory case management for Young People in Care, but the respondent undertook case work for individual children.
77 The Department had the overall case management for Young People in Care, which was reviewed by the Department on a yearly basis and was thereafter operationalised by the respondent’s individual TCP.
78 Case management involved management of the care team but on an individual level it involved the operational alignment to individual TCPs. Relative to the ACW role, ACWs worked within a care team within the framework of the Department’s care plan and the TCP by having direct contact with the Young People in Care and providing input into the care plan along with the Young People in Care and other team members.
79 Mr Thomas referred Mr Rylatt to point six in the BYP policies and processes manual, Exhibit 17 at JR1.
entitled ‘Case Management’. Mr Rylatt said that case management was undertaken in collaboration with others and that many of the actions detailed in point six were similar to TCs for the OOHC. He termed the requirements in point six as consistent with case work rather than case management, where case management required strategic oversight.
80 Mr Rylatt maintained that the administrative role or task undertaken by ACWs was minor in nature, and did not comprise a major part of the role, consistent with the role of TCs. In particular, Mr Rylatt said the respondent was responsible for the TCP which was reviewed every two weeks. There was a care team meeting every six weeks, which included the ACW along with other team members. This involved a review of the TCP requiring about one to two hours of administrative work updating the TCP either before or after the team meeting. Mr Rylatt’s evidence is the ACW role is a direct care role for the majority of the time with about 30 minutes per day spent on administrative tasks such as updating the TCP.
81 In her witness statement, Ms Walter stated the administrative tasks by ACWs included sending correspondences, inputting data into the respondent’s TCP to record decisions made by the Department or other team members, such as psychologists, documenting care in the TCP, taking meeting notes at team meetings. Exhibit 18 at [10]  [11].

82 Ms Walter said ACWs did not have authority to make autonomous decisions about Young People in Care without reference to a Team Leader. In her view, the terms ‘case work’ and ‘case management’ were used interchangeably, with the ACW position not having any role in making decisions for Young People in Care in relation to the TCP or the Department’s care plan. She considered the ACW was assigned to do oneonone case work with one young person with limited administrative functions and some ability to influence decisions relative to the young person consistent with advocating on their behalf.
83 In terms of the amount of time spent on administrative tasks, Ms Walter said the writing of daily notes on the care plans took very little time, updating the care plans for care team meetings took approximately one hour for the fortnightly meeting and about one hour for the six-weekly meeting.
JDF for ACW and TC – Case Management
84 The JDF for the ACW role relied upon by Mr Thomas under the heading of ‘1. Case Management’ provides the following duties and responsibilities: Exhibit 1 at AT5.

1.1 Take an active role in the assessment, intake and discharge process for children and young people.
1.2 Develop and implement a comprehensive, holistic and best practice care plan with young people who are at risk, homeless or at risk of homelessness, their families (where appropriate) and other stakeholders.
1.3 Work therapeutically with young people and their families towards either achieving reconciliation or developing alternative plans for the young people to live independently from their families.
1.4 Assess the family dynamics as well as other areas of young peoples’ lives, looking at both strengths and restraints and developing strategies to address restraints.
1.5 Provide counselling and evidence-based information to young people and their families to address health issues, conflict management, communication skills, anger management and developmental issues.
1.6 Work collaboratively with the Department of Communities – Child Protection and Family Support and other key stakeholders.
1.7 Advocate for the best possible outcomes for the children and young people who are in out of home care.
85 The case management responsibility is predicated on a position purpose where it is stated:
This position assumes case management responsibility for the young person and his family with a holistic and all-encompassing emphasis whilst ensuring that practices and processes within the programmes are consistent with the philosophies, ethos and values of Parkerville Children and Youth Care. Exhibit 1 at AT5 (page 2 of 4).

86 The other duties and responsibilities in the ACW JDF include:
(a) Direct Care, including:
2.1 Provide emotional support, encouragement and guidance, focussing on solutions to the problems.
2.2 Maintain a consistent environment with an established routine where expectations and consequences are clear and reality based.
2.3 Provide a model of socially and legally acceptable behaviour and “on-the-spot” counselling through the avenue of daytoday life events.
2.4 Assist young people to develop recreational and social skills through activities, outings, camps, participating in community groups, classes and sporting clubs.
2.5 Ensure that information, resources, equipment and encouragement are provided for the young people to accomplish necessary tasks in current developmental stages.
2.6 Encourage self-care and promote independent living skills in all areas relevant to the young people, such as, health, dental and hygiene [practises].
2.7 Provide opportunities for the young people to pursue religious/spiritual practises in and outside the residence in accordance with the young peoples’ families’ beliefs or of his/her own choosing, where appropriate.
2.8 Ensure an appropriate level of safety for young people at home and on outings and teach young people to keep themselves safe. Exhibit 1 at AT5 (page 2 of 4).

(b) Communication, including maintenance of case notes in accordance with the respondent’s processes, attendance at team and agency meetings, writing incident reports (if required), liaising with community groups, arranging case discussions with the Department.
(c) Maintenance, including ensuring the home is maintained and repaired and is clean.
(d) Other duties as required and identified, including promoting the respondent’s mission and values.
87 The JDF for the TC role under the heading of ‘2. Case Management’ provides the following duties and responsibilities: Exhibit 18 at LW1.

(a) Implement the Individual Care Plan for each child (which is developed by the ream, in consultation with others and encompasses all areas of the child’s life) in a supportive, planned and purposeful manner, including observation, recording, monitoring and feedback to the Team Leader and other professional staff.
(b) Implement and support contact arrangements for children with natural parents and extended family members.
(c) Work cooperatively with volunteers and holiday hosts and facilitate/allow access to the children by other Parkerville staff and volunteers.
88 The other duties and responsibilities in the TC JDF include:
(a) Direct Care, including:
1.1 Perform a range of child care and development tasks such as maintaining the physical environment, domestic duties, attending to health and medical requirements of children, play and recreational activities and educational needs;
1.2 Provide day to day care for children in ways which meet their developmental needs, and have a positive effect on their self-esteem, attachment and security, in accordance with duty of care requirements and agency processes and philosophies;
1.3 Provide appropriate support and assistance to deal with the problems of everyday life to children who may display a number of behaviours associated with abuse/neglect, trauma, attachment, separation, grief and loss; and
1.4 Assist children to develop social skills, problem solving and independent living skills as appropriate to their age and developmental level. Exhibit 18 at LW1, ‘Duties and Responsibilities’.

(b) Administrative Duties, including write file notes and appropriate records, participate in ongoing supervision and attend relevant training as required, attend regular care team meetings, staff meetings and participate in care planning, take responsibility for the maintenance and upkeep of property and contents, manage household expenditure within a monthly budget and comply with organisational requirements for financial record keeping and reporting; and
(c) Other duties as required or requested.
BYP Policies and Processes Manual – Case Management
89 The part of the BYP policies and processes manual relied upon by Mr Thomas under the heading of ‘6.0 Case Management’ relevantly provides the following duties and responsibilities:
Each assigned Case Worker is responsible for the day-to-day case management of a young person. Although full time staff are allocated assigned clients while on shift at Belmont Youth Programme, case workers are responsible for meeting the case management needs of all clients as required at the time. The Manager of Belmont Youth Programme is available to oversee case management of all clients and provide support and guidance to assigned workers through care teams, supervision and meetings as required. Exhibit 17 at JR1 (page 29 of 49).

90 The ACW role is then split into two broad duties: case management; and program responsibilities.
91 Primary case management duties include input into assessments; development of individual care plans and review; obtaining personal information of the Young Person in Care; explaining the respondent’s policies; making available in the home various information; communicating with external stakeholders and recording the communications and assisting the Young People in Care in obtaining legal information via the Department case managers.
92 Program responsibilities include direct care; recording daily logs when on shift; updating the relevant database with all correspondence and other records; completing records and incident reports; complete handover checklists for each shift; checking the home at the beginning and end of shift including necessary cleaning; handing over to the next shift; prepare house meetings; collate the necessary paperwork when on shift for care team meetings; report property and maintenance issues; be present in the main area of the house when on duty with another ACW; ensure an afternoon snack is available; prepare evening meals when on the day shift; eat evening meals with the Young People in Care; update care plans weekly; support the Young People in Care with homework or attending recreational activities and assisting the Young People in Care to get ready for and prepare for bed.
Individual Performance Review – Case Management
93 Mr Thomas also relied upon the respondent’s Individual Performance Review documents Exhibit 4 – various performance reviews for Mr Thomas.
in support of his submission regarding the significance of case management in the ACW role.
94 As the title of the documents suggest, these documents assess Mr Thomas’s performance against established JDF criteria with his strengths and areas for improvement identified. In general terms, Mr Thomas’s strengths and interests appeared to be in the direct care to the Young People in Care, rather than the administrative tasks.
Mr Thomas’s Evidence on Care Planning and Safety Planning
95 Mr Thomas also relied on the role of the ACW in care and safety planning, although this aspect of the role carried less significance to the case management role.
96 According to Mr Thomas he authored, implemented and developed TCPs and safety plans for Young People in Care. It was difficult to establish what, in fact, Mr Thomas’s role was with respect to the TCPs and safety planning, however, by way of example he relied upon an example care plan he had completed for a Young Person in Care. Exhibit 6 – example BYP care plan.

97 The example TCP is a generic template document prepared by the respondent with the relevant component parts completed by Mr Thomas. It is specific to the individual Young Person in Care and the areas to be ‘authored’ are governed by the document itself, which is consistent with Mr Rylatt’s and Ms Walter’s evidence about the TCP.
The Respondent’s Evidence on Care Planning and Safety Planning
98 In contrast, the example care plan relied upon by the respondent, authored by a Team Leader at the Department, Exhibit 14 – Department for Child Protection Example Care Plan for a meeting on 28 January 2016.
consistent with its statutory responsibility, shows substantial input. This document directs the input in the TCP for Young People in Care.
99 Mr Rylatt’s evidence is that the ACW role (and the TC role) did not extend to the independent development or strategic oversight of TCPs. He suggested both roles included ‘minor administrative tasks’, such as inputting care plan data and information during care meetings, which were operational and supportive in nature. Exhibit 17 at [15].

100 Ms Walter’s evidence is the ACW role inputted data into the respondent’s online TCP, which essentially recorded decisions made by other professional staff. ACWs could not make decisions contained in the TCP on their own. Exhibit 18 at [10].

101 The BYP policies and processes manual at ‘4.0 Care Planning’ Exhibit 17 at JR1 (page 18 of 49)
required all Young People in Care to have an individual TCP which was authored and maintained by the ACW, but all care team members were expected to contribute and maintain the TCP. That is, it was a collaborative, rather than individual, function.
102 In addition, the ACW role was to update the TCP following care team meetings and review the TCP with the Young People in Care.
103 At ‘4.10 Department Care Plan and Cultural Plans’ the Department was required to prepare an overall care plan for each Young People in Care which was reviewed yearly. The ACW role was to prepare a summary of the preceding 12 months prior to the yearly review.
104 The BYP policies and processes manual at ’10.0 Safety Plans’, required a safety plan where there was an identified risk to Young People in Care. Exhibit 17 at JR1 (page 40 of 49)
It appears that the staff member who identified the risk was required to prepare a plan. Again, the safety plan template was prepared by the respondent and completed by the particular staff member with a Team Leader having responsibility for it being updated.
105 The requirements of care planning are also referred to in the ACW and TC JDF in almost identical terms save that the ACW JDF includes the development of the TCP. Both roles also require the writing of file notes.
Mr Thomas’s Evidence on Attendance at Care Team Meetings
106 Mr Thomas referred to the ACW’s attendance at various care team meetings, which he said was not a feature of the TC role. Exhibit 1 at [11.4].

107 Mr Thomas’s evidence was, in essence, that the ACW took an active role in care team meetings.
Other Evidence on Attendance at Care Team Meetings
108 The ACW and TC JDFs require both roles to attend regular care team meetings.
109 The BYP policies and processes manual at ‘5.0 Care Team’ provided for a fortnightly team meeting attended by all BYP staff (on duty) and stakeholders. Exhibit 17 at JR1 (page 27 of 49).
The agenda was set and the meeting chaired by a BYP Programme Manager. It was expected that all staff would contribute towards agenda items, discussions and advocate for the Young People in Care.
110 The functions of the care team are set out in the same section with the BYP staff member’s responsibility being to arrange the care team meeting schedules, chair the meeting and record discussions and actions in the relevant database.
111 The respondent relied upon two examples of care team meeting notes attended by Mr Thomas. Exhibit 16 – two care team meeting notes
One of the meeting notes was created by Mr Thomas and the other created by another staff member. Both notes are on a template form, are brief and contain a summary of actions for the particular Young Person in Care.
Qualifications
112 The ACW JDF provides the essential selection criteria for the role as:
1. Associate Diploma and/or relevant experience to undertake the range of activities required for the role.
2. Understanding and experience in case management and advocacy for youth.
3. Ability to communicate with and respond to youth and families and to maintain boundaries.
4. Willingness to develop skills through further professional development in working therapeutically with youth and their families.
5. Skills in residential care, including care and maintenance of the physical environment, working with individual and groups of young people through using everyday life events and special activities.
6. Ability to document and report incidents and behaviour succinctly and objectively.
7. Strong interpersonal skills. Exhibit 1 at AT5 (page 3 of 4).

113 The TC JDF provides the essential selection criteria for the role as:
1. A relevant tertiary qualification (at least Diploma level) or at least 3 years of relevant experience;
2. Skills in caring for children and an understanding of child development;
3. Demonstrated capacity to work as a member of a multi-disciplinary team;
4. Personal skills and commitment to maintain the home as a clean, safe, secure environment for children in care;
5. Demonstrated ability to provide care experience appropriate to the emotional and social needs of the children and set behaviour limits which are appropriate and non-punitive;
6. Skills in communicating with and responding to children and young people – including the ability to engage with them in a positive manner;
7. A high level of energy, flexibility and creativity;
8. Commitment to continuing professional development;
9. Understanding of legislation and standards relevant to the position (including OSH legislation). Exhibit 18 at LW1.

Relevant Findings on the ACW Role
114 I find the principal purpose of the ACW role is contained in Mr Rylatt’s witness statement, which is to provide direct care to Young People in Care by providing emotional support, maintaining a routine in a homelike environment and encouraging independence. Exhibit 17 at [13]  [14].
That is, the primary focus and purpose of the role is on the wellbeing and needs of the Young Person in Care. The primary focus and purpose of the role is not on the completion of paperwork and administrative tasks, although I accept that this is part of the role, just not the primary or substantive part of the role.
115 While Mr Thomas sought to emphasise the increased case management and care planning roles of the ACW, as compared to those of a TC, I do not accept that these aspects of the ACW role formed the primary purpose of the role.
116 To the extent that the ACW’s role involves case management, it, in fact, involves management of principally one Young Person in Care on a micro level, where the case management concerned managing the Young Person in Care’s daytoday activities (howsoever that manifests) while the ACW is on shift in a controlled and prescribed manner.
117 This is not to say there are not challenges in doing so, depending upon the needs and complexities of the Young Person in Care. However, the case management goes hand-in-glove with the principal purpose of the ACW role to support and nurture the Young Person in Care in a home-like environment.
118 To the extent the ACW’s role involves care and safety planning it, in fact, involves using the respondent’s TCP template in a mainly prescriptive manner to record the day-to-day case notes enabling continuous communication from shift to shift and to and from various care team members and stakeholders. It also involves the provision of summaries from time to time to the principal care agency, the Department, and where required at care team meetings.
119 While the ACW role had a degree of autonomy in authoring their content into the TCP, they had limited, if any, autonomy in terms of the overall goals for the Young People in Care, which, again, resided with the Department. That is, an ACW had no responsibility for any strategic direction or goals for the Young People in Care, and, in fact, were more responsible for facilitating and implementing the goals set out by the Department by using the respondent’s TCP template.
120 In terms of attending and participating in care team meetings, the ACW was an attendee and, no doubt, provided information helpful to reviewing and assessing the care and goals of Young People in Care, but this was no more than what could reasonably be expected in a ‘multidisciplinary’ team meeting. That is, different people bring different information to the table from which those in the decision-making roles make the decisions relevant to Young People in Care. I do not accept the ACW role extended to making decisions about the overall goals and care of Young People in Care, even if their input was part of the information assisting in that decisionmaking.
121 None of this is to undermine the value of the work undertaken by ACWs involving challenging and disadvantaged Young People in Care. However, simply put, the ACW role was handson, on the ground, in a highly structured homelike environment providing parental-style support to principally one Young Person in Care on a shift roster with other ACWs.
122 To this extent, there are many similarities between the role of a ACW and the role of a TC. In particular, both are handson, on the ground, in a highly structured homelike environment providing parental-style support for Young People in Care on a shift roster. However, the care requirements of Young People in Care cared for by TCs are less complex, hence they were responsible for approximately four Young People in Care. This is reflected in some differences in the ACW JDF.
123 Notwithstanding this, the similarities of the key duties and responsibilities, including the position purpose, of the ACW and TC roles outweigh the modest differences. This also extends to the essential selection criteria for each role, which is substantially identical in effect if not in the words used.
124 True enough, there are administrative functions and the need to record how care was given and undertaken, but this was to support the primary purpose, and was not, of itself, the primary purpose.
Evaluating the ACW Role to the Schedule B Classifications
Level B4
125 Mr Thomas included a matrix in his submissions where he sought to cross reference ACW skills and responsibilities he considered mirrored the requirements of Level B4. However, the matrix tailored Mr Thomas’s opinion about aspects of the ACW role to the criteria referred to in Level B4, rather than providing an evaluation of the role.
126 The Level B4 includes general and specific characteristics for the level. Level B4 at B.4.1(a)  (f) of SCHADS.

127 I accept that of those characteristics the ACW role works under restricted general direction in functions that require the application of skills and knowledge appropriate to the work where the guidelines and procedures are established. I also accept that the ACW role requires knowledge or skills gained through either qualifications and/or relevant experience to undertake the range of activities. However, I do not accept that the ACW role is expected to, or does contribute knowledge in establishing procedures in the appropriate work-related field. The ACW role is subject to the respondent’s established policies and procedures in a highly regulated environment. Further, I do not accept that the ACW role is required to supervise various functions within a work area or activities of a complex nature. The nature of the ACW role is that it supervises one or more Young People in Care and completes associated tasks in doing so.
128 I do not accept the ACW role contains a substantial component of supervision beyond supervising the Young People in Care, which is part of the primary purpose of the role. The ACW role does not undertake any supervision of any other staff. I also do not accept the ACW role is required to provide specialist expertise or advice in their relevant discipline. Leaving aside whether conceptually the notion of relevant discipline applies to the ACW role, the role provides generalised support and direct care to Young People in Care, including encouragement, guidance and modelling of ‘good’ behaviour. This does not encompass, in my view, specialist expertise or advice, which is within the purview of the Department or more senior people employed by the respondent.
129 I accept the ACW role requires a sound knowledge of the BYP program and the policies and processes manual and associated documents. I also accept that the ACW role requires skills in time management, organising their own work and planning. However, it does not involve doing so with respect to other staff either as a component of the position or to achieve specific objectives. However, contextually, these skills are within a highly regulated system.
130 I do not accept the ACW role is expected to set outcomes and develop work methods where the general work procedures are not defined. To the contrary, the ACW role works within clearly defined policies and procedures and is expected to implement care set by the Department. I accept the ACW role has some limited input into the respondent’s TCP on an individual basis, but not in a way that develops the overall goals and care of Young People in Care.
131 Accordingly, while the ACW role has some features characteristic of the Level B4 in B.4.1, on balance it does not exhibit or require the majority of characteristics required of a Level B4 position.
132 The Level B4 responsibilities are to contribute to the operational objectives of the workplace which may include a number of identified criteria. Level B4 at B.4.2(a)  (o) of SCHADS.

133 I do not accept the ACW role undertakes activities or contributes critical knowledge and skills where procedures are not clearly defined. The BYP policies and processes manual regulates the ACW role with little, if any, scope to act autonomously outside these policies and procedures.
134 I also do not accept the ACW role identifies specific or desired performance outcomes. The ACW position is required to adhere to certain standards and is reviewed yearly on how they perform in the role. Similarly, the ACW role is not expected to set outcomes and develop work methods where general work procedures are not defined or expected to exercise judgment or contribute critical knowledge or skills where procedures are not clearly defined. The BYP policies and processes manual is prescriptive, and all staff are required to adhere to the policies and procedures contained within it. Any contribution by an ACW is limited to feedback in an operational capacity.
135 The ACW role does not provide administrative support of a complex nature to senior employees. The administrative function of the ACW position is limited to using the respondent’s templates in a prescriptive manner, albeit that the ACW role contributes to and is responsible for the content. The ACW role does not provide assistance on grant applications; or develop, control and administer a records management service; undertake computer operations requiring technical expertise or apply computer programming knowledge or provide a reference or research information service.
136 In my view, the ACW role is not within the specialised field contemplated by Level B4 such that the position liaises with other professionals at a technical or professional level, leads a team within a specialised project, performs a range of planning functions or assists senior employees with the planning and co-ordination of a community program of a complex nature.
137 The aspects of the ACW role that may come within the responsibilities contemplated in Level B4 include exercising responsibility for various functions within a work area and undertaking a wide range of activities associated with program activity or service delivery. However, these responsibilities are of such a level of generality that when considered in the context of the other areas of responsibilities, I am not persuaded that the inclusion of these responsibilities elevates the ACW role’s responsibilities to the level contemplated by Level B4.
138 The Level B4 requirements for a position include certain skills, knowledge, experience, qualifications and/or training. Level B4 at B.4.3(a)  (f) of SCHADS

139 The requirements of the ACW role does not require knowledge of statutory requirements relevant to work (although interestingly, the TC role does) or knowledge of the organisational programs and policies. The ACW JDF selection criteria is focussed on the employee having skills in residential care and being able to work with and communicate with young people, consistent with the ACW providing care to Young People in Care.
140 There is an expectation that the ACW will develop their skills and be able to document events appropriately. However, there is no apparent expectation that the ACW will come to the BYP with knowledge of the respondent’s organisation, or the programs implemented by the BYP. It is reasonable to infer that this will develop over time and there is a comprehensive procedure and policies manual governing the role. In addition, there is a hierarchy of supervision.
141 In terms of qualifications, the Level B4 at B.4.3(b)(v) enables an employee to qualify for the classification via previous appointments or service. The ACW JDF provides that the qualification for the role is via an associate diploma or relevant experience, similar to the TC JDF. Therefore, both the ACW role and the TC role could qualify for the Level B4 classification on the basis of the prerequisites.
142 However, the ACW role does not supervise other staff or work in a specialised field, and it is arguable as to whether the ACW role works under general direction. In my view, the ACW role works under more restrictive direction albeit they may exercise some discretion within the restrictions provided by the BYP policies and processes manual.
143 Further, the extent of the authority of the ACW position is very limited.
144 Thus, overall, the requirements of the ACW role are more practical and experiencebased (including developing experience) with an emphasis on skills, some knowledge and the ability to communicate with young people. That is, the essential requirements are consistent with having direct engagement with Young People in Care, rather than to undertake more complex or strategic responsibilities or to contribute to the respondent’s existing processes, knowledge and outcomes.
Level B2
145 The respondent contends that if the SCHADS covers Mr Thomas’s employment, the appropriate classification for the ACW role is Level B2. For the purposes of undertaking an evaluation of the ACW role against Level B2, I leave to one side the issue surrounding the definition of ‘social and community services sector’.
146 The Level B2 also includes general and specific characteristics for the level. Level B2 at B.2.1(a)  (d) of SCHADS.

147 I accept that the ACW role works under general guidance within the clearly defined guidelines of the BYP policies and processes manual and undertaking activities requiring the application of acquiring skills and knowledge, consistent with the requirements of the position.
148 I also accept that the ACW role’s general features consist of performing functions which are defined by established routines, methods, standards and procedures by reference to the BYP policies and processes manual. Further, I also accept there is limited scope to exercise initiative in applying work practices and procedures. That is, the BYP policies and processes manual is prescriptive in its application, although I accept there may be some latitude depending on the circumstances. In addition, an ACW may contribute to the respondent’s organisation, but this is limited mainly to feedback on existing policies and procedures or day to day operations.
149 The ACW role is expected to have an understanding of work procedures relevant to their area, but do not provide assistance to other employees beyond orientating new employees in the same role from time to time. I also accept that the ACW role is responsible for managing their time within certain constraints, including within a shift roster, and while on shift they may plan and organise the work to be done. However, they do not guide the work of lower classified employees. Similarly, it would be expected that the ACW role resolve minor work-related issues, but this would be within the limitations of the BYP policies and processes manual and subject to supervision by Team Leaders.
150 In my view, the ACW role exhibits the majority, if not all of, the features characteristic of the Level B2 classification in B.2.1.
151 The Level B2 responsibilities may include a number of identified criteria. Level B2 at B.2.2(a)  (n) of SCHADS.

152 I accept the ACW role undertakes a range of activities which requires the role to apply the procedures within the BYP policies and processes manual, and to the extent the role exercises initiative and judgement it is within those established procedures and guidelines and is subject to supervision.
153 In addition, the ACW role is required to achieve outcomes either set by the respondent or which are driven by the Department in terms of the overall care and goals for the Young People in Care. The ACW role assists with, rather than drives, administrative functions but the role does respond to enquiries. As stated, and found, this function is subservient to the main purpose of the ACW role.
154 Many of the other responsibilities identified in B.2.2(e) to (i) are relevant to other employment positions rather than relevant to the ACW role.
155 The responsibilities that are also relevant to the ACW role are contained in B.2.2(k) to (m), requiring consideration of the words ‘as part of the delivery of disability services’.
156 As indicated, I put that issue to one side. If the words ‘as part of the delivery of disability services’ were not included in B.2.2.(k) to (m), the ACW role would, in my view, clearly include those responsibilities of implementing client skills and activities programmes under limited supervision, providing personal care to Young People in Care, assisting in the development or implementation of care plans, and meal preparation.
157 Without reference to the words ‘as part of the delivery of disability services’, these types of responsibilities go to the stated primary purpose of the ACW role and the TC role.
158 The Level B2 requirements for a position include certain skills, knowledge, experience, qualifications and/or training. Level B2 at B.2.3(a)  (d) of SCHADS.

159 I accept that the ACW role requires more than a basic skill in oral and written communication with Young People in Care and stakeholders, however, it is also anticipated that there will be skill progression. What is required is knowledge of established work practices and procedures, which are available via the BYP policies and processes manual and Team Leaders, and application of those policies and procedures to the workplace.
160 Consistent with the ACW role is the prerequisites of some form of either certificate or diploma qualification and/or previous experience in working with young people or other activities relevant to the ACW role.
161 In terms of organisational responsibilities and the extent of authority, the ACW role is subject to some form of supervision, maybe not on a day-to-day basis, but the role is not otherwise a wholly autonomous one. Further, the ACW role does not supervise other staff beyond orientating new staff from time to time. The ACW role work outcomes are monitored in the sense that team meetings will review the Young Person in Care’s care and goals, which are ultimately set by the Department.
162 The ACW role is autonomous within a restricted framework, and to the extent the role exercises judgment it is within the same restricted framework.
163 Mr Thomas submitted that the CASHI Award level 3.3 classification indicia were more substantive than those required for Level B2 under the SCHADS. That is, Mr Thomas says he was recognised by the respondent as working at a level above that provided in Level B2 of the SCHADS. I have reviewed the indicia for a community services worker level 3 under the CASHI Award and, in my view, while there are some differences, the majority of the characteristics are very similar to Level B2 under the SCHADS. Additionally, the indicia for a community services worker level 3 under the CASHI Award do not meet the indicia for a Level B4 under the SCHADS. In my view, the indicia for community services worker level 4 under the CASHI Award is more consistent with the indicia for Level B4 of the SCHADS.
Determination on ACW Role Classification
164 With one caveat, the most appropriate classification for the ACW role is Level B2 of SCHADS. The one caveat is reconciling the words ‘as part of the delivery of disability services’ in Level B2, B.2.2(k) to (m), which also occur in the definition of ‘social and community services sector’.
165 However, in saying that, even without reference to these words, the most appropriate classification of the ACW role would be Level B2 in terms of the overall characteristics of the role as against what is expected from a position in this level, the requirements of the ACW role, the prerequisites, the organisational relationships and the extent of the ACW role authority. In terms of responsibilities, the ACW role is, arguably, still capable of coming within the classification of Level B2, by reference to the responsibilities in B.2.2(a) to (c) and (j); it is that the responsibilities in (k) to (m) encapsulate a significant component of the essence of the role.
166 What I am not satisfied with and do not find, is that the Level B4 classification is the most appropriate for the ACW role.
167 The characteristics of the Level B4 classification anticipate an employee who is working in a position with a high degree of autonomy, likely in a specialised field or professional capacity, and is contributing to the operation of the workplace, rather than working on the ground level in a particular capacity.
Outcome on Classification
168 I am not satisfied Mr Thomas has proven on the balance of probabilities that the ACW role is or should be classified as Level B4.
169 Where this is the underlying basis for Mr Thomas’s claim, and he did not litigate his claim on any alternative classification, his claim as it relates to classification fails.
170 That is, Mr Thomas alleges a contravention of the SCHADS by the respondent failing to pay him in full for wages at the classification Level B4 (that is, a contravention of s 45 and s 323 of the FWA), not at any other classification level.
171 However, given the respondent argued in the alternative that if the SCHADS applied to Mr Thomas’s employment, the most appropriate classification to the ACW role was Level B2, I will also consider whether the SCHADS covered Mr Thomas’s employment and the effect this may or may not have.
Is the ACW Role Covered by SCHADS?
172 Clause 3.1 defines ‘social and community services sector’ to mean:
[T]he provision of social and community services including social work, recreation work, welfare work, youth work or community development work, including organisations which primarily engage in policy, advocacy or representation on behalf of organisations carrying out such work and the provision of disability services including the provision of personal care and domestic and lifestyle support to a person with a disability in a community and/or residential setting including respite centre and day services.
173 None of the referred included services, such as social work, recreation work, welfare work or youth work, are defined in SCHADS.
174 However, the respondent in its submissions to the Full Bench of the FWC in the Application Decision Application Decision at [6].
submitted it operated within the social and community services sector, and as such was an employer covered by the SCHADS.
175 The respondent seemed reluctant during the hearing to stand by this point, which was admitted in its amended response to the claimant’s amended statement of claim. The respondent’s amended response lodged on 20 September 2024 at [15].
This possibly created some confusion for Mr Thomas because while the respondent is an employer covered by the SCHADS, not every employee employed by the respondent will necessarily be covered by the SCHADS. That is, unless the employee’s position comes within, relevantly, the classification in Schedule B, the employee, Mr Thomas, will not be covered by the SCHADS.
176 This confusion was compounded by the respondent’s communication to its workforce, including former employees such as Mr Thomas, informing them of the following:
The Fair Work Ombudsman was also able to provide their views on Award coverage and applicability. I’m also pleased to let you know the Fair Work Ombudsman confirms Parkerville as a national systems employer, with the two main Awards for our staffing cohort being the Health Professionals and Support Services Award (HPSS) for our clinical staff, and the Social Community, Housing and Disability Services (SCHADS) Award for everyone else. Exhibit 11 - Email from the respondent to Mr Thomas dated 30 January 2023.

and
This time last year, I shared with you that the Fair Work Ombudsman had confirmed that Parkerville is a national systems employer, rather than a State entity as we had been advised previously.
This meant there were three main awards for our workforce, being the Health Professionals and Support Services Award (HPSS) for clinical staff, the Miscellaneous Award primarily for EET students, and the Social Community, Housing and Disability Services (SCHADS) Award for everyone else.
Following this confirmation, we immediately moved to identify and address historical underpayments and overpayment of some staff… and then have all roles independently classified against the various award descriptors before we could even get to the calculations. Exhibit 12 – Email from the respondent’s CEO to the respondent’s workforce, including former employees such as Mr Thomas, dated 21 December 2023.
(emphasis added)
177 Thereafter, the respondent applied to the FWC to ‘clear up the uncertainty around award coverage for our carers’ and to clarify the treatment of shifts including sleepover. Exhibit 13 – Email from the respondent’s CEO to the respondent’s workforce, including former employees such as Mr Thomas, dated 25 March 2024.
The respondent further informed its workforce that ‘Parkerville’s application challenges the position taken by the FWO about the application of the Award provisions to our carers – a position that is quite simply unaffordable for us, and for other providers across the sector who are grappling with the same issue.’ Exhibit 13 – Email from respondent to the claimant, dated 25 March 2024.
It is unclear whether this is in reference to coverage by the SCHADS or payment for sleepover shifts.
178 However, the respondent then informed its workforce that it had been issued with a compliance notice by the FWO where the details of the contravention included contravening clauses of the SCHADS. The respondent indicated it would continue to calculate and repay funds ‘as soon as reasonably practicable’. Exhibit 13 – Email from respondent to the claimant, dated 25 March 2024.

179 Against this background, it is readily apparent why Mr Thomas, and others in the same position as him, may feel aggrieved by the respondent now contesting coverage of their employment by reference to particular wording in Schedule B of the SCHADS.
180 I accept and I find that the respondent is an employer covered by the SCHADS based on its admission in this claim and its admissions to its workforce that it is an employer within the social and community services sector.
181 As already stated, one of the difficulties in the Application Decision is the apparent limited scope of the inquiry of the duties undertaken by only TCs in the Group Foster Care program. There is no obvious reference to the TC JDF (or the ACW JDF or BYP) and the respondent’s submissions are directed to only those enumerated responsibilities that make direct reference to personal care (relevant to this claim, in B.2.2(l) and (m)). See Application Decision at [4], [8] and [9].

182 Thereafter, the Full Bench of the FWC accepts there is ambiguity or uncertainty in respect of the coverage of the SCHADS as it relates to TCs.
183 To limit the enquiry of the classification of the ACW role in Mr Thomas’s claim in the manner suggested by the respondent, both by confining the assessment to consideration of B.2.2(l) and (m) and adopting the outcome reached in the Application Decision, does not focus on the skills and duties required of an employee who is called upon to perform the function that is required to be performed by the employer.
184 While the primary purpose of the ACW role is to provide direct care to Young People in Care, the direct care is not limited to planning, cooking or preparation of meals or providing personal care services. Level B.2.2(l) and (m) of the SCHADS.

185 The ACW JDF outlines eight responsibilities or duties as it relates to direct care, including providing emotional support; maintaining a consistent environment; modelling behaviour; assisting in community engagement; maintaining safety in the home; provision of information and resources and the provision of opportunities for religious or cultural practices. Exhibit 1 at AT5 (page 2 of 4).

186 The most relevant direct care responsibility in the ACW JDF to supervise or provide a ‘wide range of personal care services’ in B.2.2(l) of the SCHADS is the encouragement of selfcare and promote independent living skills in all areas relevant to the young people, such as health, dental and hygiene practices. Exhibit 1 at AT5 at 2.6.

187 However, the ACW JDF is not limited to direct care of this type even if the ambit of personal care services was expanded to include domestic duties, assisting with schoolwork and arranging recreational activities as suggested by the respondent in its submissions in the Application Decision. As already discussed, it also includes duties and responsibilities relevant to case management, communication, maintenance and other duties as directed. Notably, cooking is considered a desirable prerequisite for the ACW role, not an essential criterion. Exhibit 1 at AT5 (page 4 of 4).

188 Furthermore, the BYP policies and processes manual outlines the duties and responsibilities of the ACW role in more detail, which is broader than cooking and the provision of personal care services to Young People in Care.
189 I accept and I find that the duties and responsibilities of the ACW role required and specified by the respondent involves a range of activities, including the provision of direct care, requiring the application of established work procedures, being the BYP policies and processes manual and associated documents. I also accept and I find that the ACW role required the employee to exercise limited initiative and judgment within those guidelines.
190 I further find that where the Department required outcomes and goals as part of its care plans for Young People in Care, the ACW role via the TCP was required to achieve or at least facilitate those outcomes and goals. I also find that the ACW role was expected and required to respond to enquiries from stakeholders, including family members, on behalf of the Young People in Care.
191 Finally, I find the ACW role assisted with a variety of administrative functions, including but not limited to developing and implementing the TCP, preparation of meeting notes, and corresponding with stakeholders.
192 Accordingly, in relation to Level B2 at B.2.2 of the SCHADS, I find that the ACW role is a position which includes some of the responsibilities expected at that level, namely in B.2.2(a), (b), (c) and (j).
193 I further find that overall, the ACW role meets the characteristics in B.2.1 and the requirements in B.2.3 for the Level B2 classification.
194 Therefore, I am satisfied, and I find that the ACW role is classified as Level B2 in the SCHADS, and that an employee, including Mr Thomas, in the ACW role is covered by the SCHADS.
195 For the avoidance of doubt, that the responsibilities in B.2.2(l) and (m) may be excluded in their application to the ACW role by the inclusion of the words ‘as part of the delivery of disability services’ is not fatal to the overall assessment undertaken by the Court by reference to all of the duties and responsibilities expected by the respondent and what the role entails.
Is There an Underpayment?
196 The difficulty is that Mr Thomas litigated his claim on the basis that the contravention was the respondent failing to pay him in full at the Level B4 classification and his calculations are based on payments he says ought to have been made at Level B4, pay point 4.
197 The further difficulty is that Mr Thomas provides limited explanation for how he determined the calculations and the terms of the SCHADS he relied upon to construct his spreadsheet of the calculations. Further and Better Particulars lodged by Mr Thomas on 4 November 2024.
Much of what is stated below is the Court attempting to reconstruct what appears to be the basis for Mr Thomas’s claim, rather than Mr Thomas proving any alleged underpayment at any alternative classification level.
198 However, Mr Thomas is unsuccessful in proving the ACW role is classified at Level B4, and that the respondent contravened the SCHADS or the FWA in failing to pay him in full at this classification. As a result, Mr Thomas is also unsuccessful in proving any alleged underpayment of $106,728.94.
199 Further, a possible underpayment of some other amount is difficult to determine where there is no clear basis for the information relied upon by Mr Thomas to verify any other amount alleged to be underpaid.
200 Both parties provided calculations to the Court. Further and Better Particulars lodged by Mr Thomas on 4 November 2024.
The respondent did so in the form of an aide memoire, Document handed up in Court on 10 April 2025 – Statement of Shiya Tee at ST1.
which was also provided to Mr Thomas.
201 Mr Thomas’s computations are predicated on the Court finding that the classification of the ACW role is Level B4 and uses the pay points for this level.
202 The respondent submitted that if the Court found the SCHADS covered Mr Thomas’s employment as an ACW, the relevant pay rate was pay point 4 for social and community services employee level 2 (relevant to Level B2). See cl 15.2 of the SCHADS.
This is the highest increment within level 2.
203 The parties used the same source documents for their respective calculations, being Mr Thomas’s payslips Exhibit 2.
and the respondent’s rosters. Exhibit 3.
However, the respondent also relied upon a printout of raw data of all time it says Mr Thomas worked between 30 June 2016 and 13 July 2020. Exhibit 17 at [40] and JR3.

204 During his employment, the respondent paid Mr Thomas in accordance with the CASHI Award at level 3.3.
205 According to the respondent, from 31 December 2015 to 30 August 2021, Mr Thomas was paid a total of $355,864.42 (this amount excludes HELP deductions, which were deducted from the gross fortnightly pay and excludes superannuation payment and payments made under the then Job Keeper ‘top up’).
206 It should be noted that from approximately 4 August 2020 to the cessation of his employment with the respondent, Mr Thomas was on leave without pay or parental leave without pay, which may account for some discrepancies in the parties’ calculations.
207 The below table contrasts the parties’ differing positions:

Date range
Claimed hours
Claimed overtime hours
Claimant
31/12/2015-3/08/2020 Further Better and Further Particulars lodged by Mr Thomas on 4 November 2024 at AT1.

9,490
3,023
JR3
30/06/2016 – 13/07/2020 Exhibit 17 at JR3.

6,468
56
Respondent
31/12/2015 – 3/08/2020 The respondent used source documents such as the rosters in exhibit 3 to derive its own calculation of total time worked.

7849.5

208 One of the glaring issues in dispute as it relates to claimed hours is the number of claimed total hours and claimed overtime hours as alleged by Mr Thomas. From my own review of Mr Thomas’s calculations, it appears Mr Thomas may have included annual leave hours, sick leave hours and long service leave hours in his total number of claimed hours.
209 The respondent says Mr Thomas has overstated his total worked hours by about 1,700 hours and based on its calculation from the same source documents the total claimed work hours should be 7849.5 hours.
210 For my part, I was unable to reconcile the 9,490 hours claimed by Mr Thomas from the source documents. Using the respondent’s source document attached to Mr Rylatt’s witness statement extrapolated from the rosters Exhibit 17 at JR3 being the total hours worked from exhibit 3 minus 1 January 2016 to 29 June 2016 and 13 July 2020 to 3 August 2020.
and using the ‘best case’ scenario for Mr Thomas to fill in the gaps between 1 January 2016 to 29 June 2016 and 13 July 2020 to 3 August 2020, the work hours calculated was 7,532.5, From 1 January 2016 to 29 June 2016 and 13 July 2020 to 3 August 2020 using the combined total hours suggested by Mr Thomas in his Further Better and Further Particulars lodged on 4 November 2024 at AT1 and the roster in Exhibit 3.
which even falls short of the total work hours calculated by the respondent.
211 In addition, there was no clear explanation for how Mr Thomas calculated 3,023 hours of overtime hours, unless, as suggested in his oral evidence, he totalled all hours he says he worked in excess of 10 hours on any shift, along with overnight shifts worked in the first two to three months of 2016 before there was a roster change.
212 As best as could be established on Mr Thomas’s oral evidence, Mr Thomas quantified the hours of overtime he says he worked by reference to hours worked in excess of 10 hours pursuant to cl 28.1(a)(ii) of the SCHADS.
213 Clause 28.1(a)(ii) of the SCHADS provides overtime rates for full-time employees:
A full-time employee will be paid the following payments for all work done in addition to their rostered ordinary hours on any day and, in the case of day workers, for work done outside the span of hours under clause 25.2(a):
…
(ii) social and community services and crisis accommodation employees – for all authorised overtime on Monday to Saturday, payment will be made at the rate of time and a half for the first 3 hours and double time thereafter.
214 The respondent says that, consistent with its records, Mr Thomas was authorised to work overtime on the occasions provided in the overtime forms attached to Mr Rylatt’s witness statement. Exhibit 17 at JR4.

215 Mr Rylatt’s evidence is that all overtime hours worked by an ACW was required to be authorised and approved by their Team Leader and another manager. If overtime was worked, the respondent required the employee to submit an additional overtime timesheet for approval, which would be approved by a Team Leader and a senior manager. Exhibit 17 at [41]  [43].

216 An ACW was not authorised to unilaterally decide to perform overtime without the express prior permission and authorisation from the respondent’s managers. Exhibit 17 at [44].

217 Similar to SCHADS, the CASHI Award at cl 21.1.1 provides that ‘[o]vertime will only be worked with the prior approval of the employer’ (unless in emergency situations referred to in cl 21.1.2).
218 The words ‘authorised overtime’ in cl 28.1(a)(ii) of the SCHADS qualifies the payment of overtime for work done by Mr Thomas in addition to his rostered ordinary hours on any day. That is, an employee cannot of themselves determine whether they will be paid overtime for work done in addition to their rostered ordinary hours. The rationale being the employer retains control of the workplace and work practises and ought to have processes in place to manage employee workload and work time.
219 The uncontroverted evidence of Mr Rylatt was the respondent required two manager approval for the working of overtime and that an overtime timesheet was submitted and approved, as was done on the occasions Mr Thomas worked ‘authorised overtime’.
220 Mr Thomas’s case may have been that the respondent required him to work at times in excess of 10 hours per shift under the terms of the respondent’s then rosters, and he was relying upon some other clause in the SCHADS to ground the payment for time worked over ordinary hours, such as cl 25.1(a)(ii) and cl 25.1(b) of the SCHADS.
221 In those circumstances, it may have been Mr Thomas’s case that the respondent implicitly, via its rostering system, required him to work overtime.
222 Mr Thomas did not put his case in this way, even if this was his case, and this was not the case the respondent was required to answer to. The Court gleaned this from Mr Thomas’s oral evidence and notations in boxes in AT1 to his Further and Better Particulars of Claim.
223 Therefore, the computation of overtime rates, if they applied, would likely be referrable to other payment rates under the SCHADS, where Mr Thomas’s employment was likely categorised as a shift worker under cl 25.2(b) rather than as a day worker under cl 25.2(a).
224 Identifying these difficulties does not address the issue of salary packaging under cl 14 of the SCHADS and cl 13.4 of the CASHI Award and what, if any, bearing this has where Mr Thomas was paid an annualised salary.
225 The respondent undertook a comparison of the amount that would be payable under the SCHADS at Level B2 pay point 4 if overtime was calculated where Mr Thomas worked:
(a) more than 38 hours per week; Clause 25(1)(a) of the SCHADS.
and
(b) more than eight hours per day, Clause 25.1(a)(ii) of the SCHADS.

by reference to the total time worked by Mr Thomas using the respondent’s rosters (which is more than the Court was able to calculate).
226 On the respondent’s suggested calculation most favourable to Mr Thomas, which is on more favourable terms than that relied upon by Mr Thomas, Mr Thomas appears to rely only on hours in excess of 10 hours whereas the respondent relies upon hours in excess of eight hours.
the respondent suggests Mr Thomas would have been paid a total of $291,653.39 if paid in accordance with Level B2 pay point 4 under the SCHADS. This amount does not include annual leave and sick leave.
227 According to the respondent, the amount payable to Mr Thomas for annual leave and sick leave under the SCHADS Level B2 pay point 4 is $39,886.35 whereas Mr Thomas was paid $50,977.56 for annual leave and sick leave under CASHI Award.
228 Thus, the total amount suggested by the respondent payable under the SCHADS for Level B2 pay point 4 for the same time period is $331,539.74, which is less than the total amount paid to Mr Thomas by the respondent under the CASHI Award.
229 I am mindful Mr Thomas is a litigant in person, and the court’s approach to the documents in which he expresses his case may require some flexibility. Sethi v Bhavsar [2020] WASCA 52 at [27].
The Court needs to ensure that any latitude give to one party as a litigant in person does not deprive the other party of their right to procedural fairness and a fair hearing. Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236 at [47].

230 As already mentioned, Mr Thomas’s claim has always been predicated on any underpayment arising from the respondent failing to pay him at classification Level B4 under the SCHADS, and that the respondent contravened the SCHADS and the FWA in doing so. There was no alternative position or calculations relied upon by Mr Thomas. I note that Mr Thomas said that he was not paid in full for the performance of work, referrable to s 323 of the FWA, although this was in relation to his allegation that the respondent mischaracterised the ACW role classification. Having regard to the basis for Mr Thomas’s claim and how he ran his claim, it was never conducted on the basis that even if the ACW role was classified as Level B2 under SCHADS, there was still an underpayment albeit of a lesser amount.
231 This was the case the respondent was required to answer to, albeit that it defended Mr Thomas’s claim on three grounds, two in the alternative.
232 In my view, it is preferrable for the Court not to speculate about what might have been had Mr Thomas’s case been different.
Outcome
233 I am not satisfied that Mr Thomas has proven his claim to the requisite standard as I am not satisfied the ACW position is classified as a Level B4 position under the SCHADS, notwithstanding I found the SCHADS covered his employment by the respondent.
234 Furthermore, I am not satisfied Mr Thomas has proven to the requisite standard that the respondent is required to pay an amount to him under the SCHADS.
235 Accordingly, I am not satisfied Mr Thomas has proven to the requisite standard that the respondent contravened the SCHADS or the FWA by failing to pay him in full for the performance of work during the period claimed.
236 The claim is dismissed.



D. SCADDAN
INDUSTRIAL MAGISTRATE


SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court (WA)
Jurisdiction
[1] An employee, an employee organisation or an inspector may apply to an eligible state or territory court for orders regarding a contravention of the civil penalty provisions identified in s 539(2) of the FWA.
[2] The IMC, being a Court constituted by an industrial magistrate, is ‘an eligible State or Territory court’: FWA, s 12 (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); Industrial Relations Act 1979 (WA), s 81 and s 81B.
[3] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: FWA, s 544.
[4] The civil penalty provisions identified in s 539 of the FWA include the terms of a modern award where the terms apply to give an entitlement to a person and to impose an obligation upon a respondent employer: FWA, s 46(1) and (2). A modern award applies if it covers the employee or the employee organisation and the employer, the modern award is in operation and no other provision of the FWA provides that the modern award does not apply: FWA, s 47(1) (when read with s 48 of the FWA).
[5] An obligation upon an ‘employer’ covered by an agreement is an obligation upon a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: FWA, s 42, s 47, s 14 and s 12. An entitlement of an employee covered by an agreement is an entitlement of an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed … by a national system employer’: FWA, s 42, s 47 and s 13.
Contravention
[6] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the Court may make orders for an employer to pay to an employee an amount that the employer was required to pay under the modern award: FWA, s 545(3)(a).
[7] The civil penalty provisions identified in s 539 of the FWA include:
· Contravening a term of a modern award: FWA, s 45.
· Failing to pay an amount in full for the performance of work: FWA, s 323.
[8] An ‘employer’ has the statutory obligations noted above if the employer is a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: FWA, s 14 and s 12. The obligation is to an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed … by a national system employer’: FWA, s 13
[9] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the Court may make orders for:
· An employer to pay to an employee an amount that the employer was required to pay under the FWA: FWA, s 545(3).
· A person to pay a pecuniary penalty: FWA, s 546.
[10] In contrast to the powers of the Federal Court and the Federal Circuit Court, an eligible State or Territory court has no power to order payment by an entity other than the employer of amounts that the employer was required to pay under the FWA. For example, the IMC has no power to order that the director of an employer company make payments of amounts payable under the FWA: Mildren v Gabbusch [2014] SAIRC 15.
Burden and standard of proof
[11] In an application under the FWA, the party making an allegation to enforce a legal right or to relieve the party of a legal obligation carries the burden of proving the allegation. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not,’ the burden is discharged, but, if the probabilities are equal, it is not.
[12] In the context of an allegation of the breach of a civil penalty provision of the Act it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. (362)



Schedule II: SCHADS Classification Structure
B.1 Social and community services employee level 1
B.1.1 Characteristics of the level
(a) A person employed as a Social and community services employee level 1 works under close direction and undertakes routine activities which require the practical application of basic skills and techniques. They may include the initial recruit who may have limited relevant experience.
(b) General features of work in this level consist of performing clearly defined activities with outcomes being readily attainable. Employees’ duties at this level will be closely monitored with instruction and assistance being readily available.
(c) Freedom to act is limited by standards and procedures. However, with experience, employees at this level may have sufficient freedom to exercise judgment in the planning of their own work within those confines.
(d) Positions at this level will involve employees in extensive on-the-job training including familiarisation with the goals and objectives of the workplace/
(e) Employees will be responsible for the time management of their work and required to use basic numeracy, written and verbal communication skills, and where relevant, skills required to assist with personal care and lifestyle support.
(f) Supervision of other staff or volunteers is not a feature at this level. However, an experienced employee may have technical oversight of a minor work activity.
(g) At this level, employers are expected to offer substantial internal and/or external training.
B.1.2 Responsibilities
A position at this level may include some of the following inputs or those of a similar value:
(a) undertake routine activities of a clerical and/or support nature;
(b) undertake straightforward operation of keyboard equipment including data input and word processing at a basic level;
(c) provide routine information including general reception and telephonist duties;
(d) provide general stenographic duties;
(e) apply established practices and procedures;
(f) undertake routine office duties involving filing, recording, checking and batching of accounts, invoices, orders, stores requisitions and maintenance of an existing records system;
(g) resident contact and interaction including attending to their personal care or undertaking generic domestic duties under direct or routine supervision and either individually or as part of a team as part of the delivery of social, community or disability services;
(h) preparation of the full range of domestic duties including cleaning and food service, assistance to residents in carrying out personal care tasks under general supervision either individually or as part of a team as part of the delivery of social, community or disability services.
The minimum rate of pay for employees engaged in responsibilities which are prescribed by B.1.2(h) is pay point 2.
B.1.3 Requirements of the position
Some or all of the following are needed to perform work at this level:
(a) Skills, knowledge, experience, qualifications and/or training
(i) developing knowledge of the workplace function and operation;
(ii) basic knowledge of administrative practices and procedures relevant to the workplace;
(iii) a developing knowledge of work practices and policies of the relevant work area;
(iv) basic numeracy, written and verbal communication skills relevant to the work area;
(v) at this level employers are required to offer substantial on-the-job training.
(b) Organisational relationships
Work under direct supervision.
(c) Extent of authority
(i) Work outcomes are clearly monitored.
(ii) Freedom to act is limited by standards and procedures.
(iii) Solutions to problems are found in established procedures and instructions with assistance readily available.
(iv) Project completion according to instructions and established procedures.
(v) No scope for interpretation.
(d) Progression
An employee primarily engaged in responsibilities which are prescribed by B.1.2(g) will, if full-time, progress to pay point 2 on completion of 12 months’ industry experience, or if part-time, on completion of 1976 hours of industry experience. Industry experience means 12 months of relevant experience gained over the previous 3 years.
B.2 Social and community services employee level 2
B.2.1 Characteristics of the level
(a) A person employed as a Social and community services employee level 2 will work under general guidance within clearly defined guidelines and undertake a range of activities requiring the application of acquired skills and knowledge.
(b) General features at this level consist of performing functions which are defined by established routines, methods, standards and procedures with limited scope to exercise initiative in applying work practices and procedures. Assistance will be readily available. Employees may be responsible for a minor function and/or may contribute specific knowledge and/or specific skills to the work of the organisation. In addition, employees may be required to assist senior workers with specific projects.
(c) Employees will be expected to have an understanding of work procedures relevant to their work area and may provide assistance to lower classified employees or volunteers concerning established procedures to meet the objectives of a minor function.
(d) Employees will be responsible for managing time, planning and organising their own work and may be required to oversee and/or guide the work of a limited number of lower classified employees or volunteers. Employees at this level could be required to resolve minor work procedural issues in the relevant work area within established constraints.
(e) Employees who have completed an appropriate certificate and are required to undertake work related to that certificate will be appointed to this level. Where the appropriate certificate is a level 4 certificate the minimum rate of pay will be pay point 2.
(f) Employees who have completed an appropriate diploma and are required to undertake work related to the diploma will commence at the second pay point of this level and will advance after 12 full-time equivalent months’ satisfactory service.
B.2.2 Responsibilities
A position at this level may include some of the following:
(a) undertake a range of activities requiring the application of established work procedures and may exercise limited initiative and/or judgment within clearly established procedures and/or guidelines;
(b) achieve outcomes which are clearly defined;
(c) respond to enquiries;
(d) assist senior employees with special projects;
(e) prepare cash payment summaries, banking reports and bank statements, post journals to ledger etc. and apply purchasing and inventory control requirements;
(f) perform elementary tasks within a community service program requiring knowledge of established work practices and procedures relevant to the work area;
(g) provide secretarial support requiring the exercise of sound judgment, initiative, confidentiality and sensitivity in the performance of work;
(h) perform tasks of a sensitive nature including the provision of more than routine information, the receiving and accounting for moneys and assistance to clients;
(i) assist in calculating and maintaining wage and salary records;
(j) assist with administrative functions;
(k) implementing client skills and activities programmes under limited supervision either individually or as part of a team as part of the delivery of disability services;
(l) supervising or providing a wide range of personal care services to residents under limited supervision either individually or as part of a team as part of the delivery of social, community or disability services;
(m) assisting in the development or implementation of resident care plans or the planning, cooking or preparation of the full range of meals under limited supervision either individually or as part of a team as part of the delivery of social, community or disability services;
(n) possessing an appropriate qualification (as identified by the employer) at the level of certificate 4 or above and supervising the work of others (including work allocation, rostering and providing guidance) as part of the delivery of disability services as described above or in subclause B.1.2.
B.2.3 Requirements of the position
Some or all of the following are needed to perform work at this level:
(a) Skills, knowledge, experience, qualification and/or training
(i) basic skills in oral and written communication with clients and other members of the public;
(ii) knowledge of established work practices and procedures relevant to the workplace;
(iii) knowledge of policies relating to the workplace;
(iv) application of techniques relevant to the workplace;
(v) developing knowledge of statutory requirements relevant to the workplace;
(vi) understanding of basic computing concepts.
(b) Prerequisites
(i) an appropriate certificate relevant to the work required to be performed;
(ii) will have attained previous experience in a relevant industry, service or an equivalent level of expertise and experience to undertake the range of activities required;
(iii) appropriate on-the-job training and relevant experience; or
(iv) entry point for a diploma without experience.
(c) Organisational relationships
(i) work under regular supervision except where this level of supervision is not required by the nature of responsibilities under B.2.2 being undertaken;
(ii) provide limited guidance to a limited number of lower classified employees.
(d) Extent of authority
(i) work outcomes are monitored;
(ii) have freedom to act within established guidelines;
(iii) solutions to problems may require the exercise of limited judgment, with guidance to be found in procedures, precedents and guidelines. Assistance will be available when problems occur.
B.3 Social and community services employee level 3
B.3.1 Characteristics of this level
(a) A person employed as a Social and community services employee level 3 will work under general direction in the application of procedures, methods and guidelines which are well established.
(b) General features of this level involve solving problems of limited difficulty using knowledge, judgment and work organisational skills acquired through qualifications and/or previous work experience. Assistance is available from senior employees. Employees may receive instruction on the broader aspects of the work. In addition, employees may provide assistance to lower classified employees.
(c) Positions at this level allow employees the scope for exercising initiative in the application of established work procedures and may require the employee to establish goals/objectives and outcomes for their own particular work program or project.
(d) At this level, employees may be required to supervise lower classified staff or volunteers in their day-to-day work. Employees with supervisory responsibilities may undertake some complex operational work and may undertake planning and co-ordination of activities within a clearly defined area of the organisation including managing the day-to-day operations of a group of residential facility for persons with a disability.
(e) Employees will be responsible for managing and planning their own work and that of subordinate staff or volunteers and may be required to deal with formal disciplinary issues within the work area.
(f) Those with supervisory responsibilities should have a basic knowledge of the principles of human resource management and be able to assist subordinate staff or volunteers with on-the-job training. They may be required to supervise more than one component of the work program of the organisation.
(g) Graduates with a three year degree that undertake work related to the responsibilities under this level will commence at no lower than pay point 3. Graduates with a four year degree that undertake work related to the responsibilities under this level will commence at no lower than pay point 4.
B.3.2 Responsibilities
To contribute to the operational objectives of the work area, a position at this level may include some of the following:
(a) undertake responsibility for various activities in a specialised area;
(b) exercise responsibility for a function within the organisation;
(c) allow the scope for exercising initiative in the application of established work procedures;
(d) assist in a range of functions and/or contribute to interpretation of matters for which there are no clearly established practices and procedures although such activity would not be the sole responsibility of such an employee within the workplace;
(e) provide secretarial and/or administrative support requiring a high degree of judgment, initiative, confidentiality and sensitivity in the performance of work;
(f) assist with or provide a range of records management services, however the responsibility for the records management service would not rest with the employee;
(g) proficient in the operation of the computer to enable modification and/or correction of computer software systems or packages and/or identification problems. This level could include systems administrators in small to medium sized organisations whose responsibility includes the security/integrity of the system;
(h) apply computing programming knowledge and skills in systems development, maintenance and implementation under direction of a senior employee;
(i) supervise a limited number of lower classified employees or volunteers;
(j) allow the scope for exercising initiative in the application of established work procedures;
(k) deliver single stream training programs;
(l) co-ordinate elementary service programs;
(m) provide assistance to senior employees;
(n) where prime responsibility lies in a specialised field, employees at this level would undertake at least some of the following:
(i) undertake some minor phase of a broad or more complex assignment;
(ii) perform duties of a specialised nature;
(iii) provide a range of information services;
(iv) plan and co-ordinate elementary community-based projects or programs;
(v) perform moderately complex functions including social planning, demographic analysis, survey design and analysis.
(o) in the delivery of disability services as described in subclauses B.1.2 or B.2.2, taking overall responsibility for the personal care of residents; training, co ordinating and supervising other employees and scheduling work programmes; and assisting in liaison and co-ordination with other services and programmes.
B.3.3 Requirements of the job
Some or all of the following are needed to perform work at this level:
(a) Skills, knowledge, experience, qualifications and/or training
(i) thorough knowledge of work activities performed within the workplace;
(ii) sound knowledge of procedural/operational methods of the workplace;
(iii) may utilise limited professional or specialised knowledge;
(iv) working knowledge of statutory requirements relevant to the workplace;
(v) ability to apply computing concepts.
(b) Prerequisites
(i) entry level for graduates with a relevant three year degree that undertake work related to the responsibilities under this level—pay point 3;
(ii) entry level for graduates with a relevant four year degree that undertake work related to the responsibilities under this level—pay point 4;
(iii) associate diploma with relevant experience; or
(iv) relevant certificate with relevant experience, or experience attained through previous appointments, services and/or study of an equivalent level of expertise and/or experience to undertake the range of activities required.
(c) Organisational relationships
(i) graduates work under direct supervision;
(ii) works under general supervision except where this level of supervision is not required by the nature of the responsibilities under B.3.2 being undertaken;
(iii) operate as member of a team;
(iv) supervision of other employees.
(d) Extent of authority
(i) graduates receive instructions on the broader aspects of the work;
(ii) freedom to act within defined established practices;
(iii) problems can usually be solved by reference to procedures, documented methods and instructions. Assistance is available when problems occur.
B.4 Social and community services employee level 4
B.4.1 Characteristics of this level
(a) A person employed as a Social and community services employee level 4 will work under general direction in functions that require the application of skills and knowledge appropriate to the work. Generally guidelines and work procedures are established.
(b) General features at this level require the application of knowledge and skills which are gained through qualifications and/or previous experience in a discipline. Employees will be expected to contribute knowledge in establishing procedures in the appropriate work-related field. In addition, employees at this level may be required to supervise various functions within a work area or activities of a complex nature.
(c) Positions may involve a range of work functions which could contain a substantial component of supervision. Employees may also be required to provide specialist expertise or advice in their relevant discipline.
(d) Work at this level requires a sound knowledge of program, activity, operational policy or service aspects of the work performed with a function or a number of work areas.
(e) Employees require skills in managing time, setting priorities, planning and organising their own work and that of lower classified staff and/or volunteers where supervision is a component of the position, to achieve specific objectives.
(f) Employees will be expected to set outcomes and further develop work methods where general work procedures are not defined.
B.4.2 Responsibilities
To contribute to the operational objectives of the workplace, a position at this level may include some of the following:
(a) undertake activities which may require the employee to exercise judgment and/or contribute critical knowledge and skills where procedures are not clearly defined;
(b) perform duties of a specialised nature requiring the development of expertise over time or previous knowledge;
(c) identification of specific or desired performance outcomes;
(d) contribute to interpretation and administration of areas of work for which there are no clearly established procedures;
(e) expected to set outcomes and further develop work methods where general work procedures are not defined and could exercise judgment and contribute critical knowledge and skills where procedures are not clearly defined;
(f) although still under general direction, there is greater scope to contribute to the development of work methods and the setting of outcomes. However, these must be within the clear objectives of the organisation and within budgetary constraints;
(g) provide administrative support of a complex nature to senior employees;
(h) exercise responsibility for various functions within a work area;
(i) provide assistance on grant applications including basic research or collection of data;
(j) undertake a wide range of activities associated with program activity or service delivery;
(k) develop, control and administer a records management service for the receipt, custody, control, preservation and retrieval of records and related material;
(l) undertake computer operations requiring technical expertise and experience and may exercise initiative and judgment in the application of established procedures and practices;
(m) apply computer programming knowledge and skills in systems development, maintenance and implementation;
(n) provide a reference and research information service and technical service including the facility to understand and develop technologically based systems;
(o) where the prime responsibility lies in a specialised field, employees at this level would undertake at least some of the following:
(i) liaise with other professionals at a technical/professional level;
(ii) discuss techniques, procedures and/or results with clients on straight forward matters;
(iii) lead a team within a specialised project;
(iv) provide a reference, research and/or technical information service;
(v) carry out a variety of activities in the organisation requiring initiative and judgment in the selection and application of established principles, techniques and methods;
(vi) perform a range of planning functions which may require exercising knowledge of statutory and legal requirements;
(vii) assist senior employees with the planning and co-ordination of a community program of a complex nature.
B.4.3 Requirements of the position
Some or all of the following are needed to perform work at this level:
(a) Skills, knowledge, experience, qualifications and/or training
(i) knowledge of statutory requirements relevant to work;
(ii) knowledge of organisational programs, policies and activities;
(iii) sound discipline knowledge gained through experience, training or education;
(iv) knowledge of the role of the organisation and its structure and service;
(v) specialists require an understanding of the underlying principles in the discipline.
(b) Prerequisites
(i) relevant four year degree with one years relevant experience;
(ii) three year degree with two years of relevant experience;
(iii) associate diploma with relevant experience;
(iv) lesser formal qualifications with substantial years of relevant experience; or
(v) attained through previous appointments, service and/or study, an equivalent level of expertise and experience to undertake a range of activities,
(c) Employees undertaking specialised services will be promoted to this level once they have had the appropriate experience and undertake work related to the responsibilities under this level.
(d) Employees working as sole employees will commence at this level.
(e) Organisational relationships
(i) works under general direction;
(ii) supervises other staff and/or volunteers or works in a specialised field.
(f) Extent of authority
(i) required to set outcomes within defined constraints;
(ii) provides specialist technical advice;
(iii) freedom to act governed by clear objectives and/or budget constraints which may involve the contribution of knowledge in establishing procedures within the clear objectives and/or budget constraints where there are no defined established practices;
(iv) solutions to problems generally found in precedents, guidelines or instructions;
(v) assistance usually available.