Recently the USU ( The United Services Union, which represents local government, energy, airline, clerical and administrative employees throughout NSW) filed a claim against MidCoast Council which owns MidCoast Assist (a private ageing and disability support service provider) in the NSW Industrial Relations Commission ( Case No. 2021/00207000) for unpaid wages and allowances going back years which could amount to MidCoast Council being hit with a bill for millions of dollars.
USU Industrial Officer Noel Martin lays the blame at the intransigence of MidCoast Council General Manager, Adrian Panuccio, and several members of Council’s Human Resources team.
MidCoast Assist employees are covered under the Local Government State Award 2020.
The contentious issue revolves around what is known as the SCHADS Award ( Social, Community, Home Care and Disability Services Industry Award 2010), specifically in relation to Section 25.7 Sleepovers. This refers to a situation where an employer requires an employee to sleep overnight at premises where the client, for whom the employee is responsible, is located. This includes respite stays.
MidCoast Assist frequently requires some employees to sleep over in assisted housing where there may be up to four persons requiring varying levels of support during the night.
Typically the employees work shifts that start at 6pm in assisted housing where there could up to four vulnerable, elderly or disabled residents at one time, all of whom may require assistance. The shift breaks between 10pm and 11pm, when the employee is entitled to sleep (in a dedicated room provided for that employee), and the shift recommences between 6am and 7am and generally concludes after 7 hours of work. The reason the employee is required to sleep over is in the event that any, or all, of the residents in that housing facility may require recurrent assistance throughout the night. Which happens frequently and routinely. The employees who sleep over are entitled to additional payments (A Sleepover allowance of around $40 a night) if they are needed to break their rest / sleep during the night to provide assistance or support for residents in the assisted housing facility.
MidCoast Assist charges each participant for the sleeper over service and typically the daily fee could be between $1400 – $2000 per supported person in the assisted housing facility, where there are often four people at a time in residence, in which case $8000 goes to MidCoast Assist which is claimed against the NDIS, (National Disability Insurance Scheme) but the employee doesn’t get any additional payment.
Prior to the Council amalgamation which formed MidCoast Council in 2015, MidCoast Assist Great Lakes Ageing and Disability Services, allegedly did pay employees the sleep over allowances. After the amalgamation the sleepover payments were discontinued.
Said Mr Martin, ‘MidCoast Assist came to the Union saying they believe that council has been charging clients the full amount available under the NDIS yet they’ve only been paying our members the on call allowance.
‘So we went Council and said, Look, there’s an easy fix for this – we can negotiate an enterprise agreement and make sure it’s all fairly and squarely plotted out so there’s no comeback on council or the clients. But the GM and Council came back to us and said we’re not having an enterprise agreement whatsoever. Now, I have not spoken to the GM but his HR representatives who made it quite clear they will not enter into negotiations for an enterprise agreement, whereas we offered a low cost option that sorts it out and fixes the problem once and for all. But Council won’t play ball with us. They’ve made threats they’ll just shut the service down.’
The claim by the USU in the NSW Industrial Relations Commission is on behalf of 40 current employees. However in total, there could be up to 70 current and former employees who are owed back payments reaching back as far as 2015.
‘To my knowledge no other council has been taking advantage of this scheme and charging the maximum sleepover charge,’ said Mr Martin. ‘I’ve been in this job 23 years and I look after councils from Gosford to Tweed Heads and out to Cobar and this is the first time this has come up. It’s been going on since Great Lakes Council days. It doesn’t matter where it started, we have an obligation to fix it. This has come to the industrial commission twice in the last few months. As soon as it was brought to our attention we jumped on it when we believed there’d been a breach of the award. So we went to council who told us basically to jump in the lake so we filed it in the industrial relations commission. And now it’s got to the point that if we don’t give up and go away Council have threatened to shut down MidCoast Assist. The council is aggressive, which seems to be the nature of the human resources sector, as I’ve dealt with them before.’
Mr Martin takes a personal interest in the case given he has a mentally disabled brother in a home, ‘and I know how the funding works and what he has to pay. The worst part is that the clients rely on MidCoast Assist for their daily activities, assistance and care.’ He adds, ‘Ultimately the buck stops with the General Manager, but a lot of work needs to go into negotiations for an enterprise agreement. They negotiated one when MidCoast Water was amalgamated with council, but this time I feel they’re hoping we’ll drop off but we’re not going to do that! The worst part is the clients are being charged the full amount allowable yet council is not prepared to pay the correct amount of money to the union employees!’
The Industrial Commission have told the parties to go away and sort it out.
‘Which I don’t think will be sorted given Council’s present attitude,’ says Mr Martin. ‘Which will leave a lot of people in the lurch.’
Those experienced in these matters estimate that an Enterprise Agreement might have cost Council around perhaps $900,000.
Adds Mr Martin, ‘We go back to the Commission in September and hopefully have it resolved, if not we’ll be pursuing it to the maximum – which could amount to millions of dollars owed.’ He points out that there’s specific awards and allowances for staff qualified in nursing, disability care and other areas. Adds Mr Martin, ‘We were originally only talking to Council about the overnight allowance but as they’re being so pig headed its blown out to claim for all these other allowances.’
MidCoast Assist employs over 200 people on a combination of a full, part time and casual basis. A quick look at some figures reveals what could be an ugly scenario –
Going on Council’s figures on their website, MidCoast Council’s 2021/22 Budget Summary for MidCoast Assist, published on June 2021, projects revenue of $8,683,946 and surplus of $1,262,628, of which Council will absorb $1,144,803 as internal charges.
Leaving a modest net surplus of around $100,000.
Well that won’t fix a lot of roads. . . . .
The ball is in Council’s corner it seems. Being kicked down the hall from HR to the GM’s door.
(We contacted the General Manager for a comment on an issue that affects over 200 staff and hundreds of aged and disability clients but it seems beneath him to bother so we received the following –
Thank you for your enquiry to the General Manager regarding an Industrial Relations Commission matter relating to MidCoast Assist.
Unfortunately, we are not in a position to provide the information you have requested given that it relates to a staffing matter which is currently before the Industrial Relations Commission.
It should be noted that any staff member or staff group has the right to pursue matters in the Commission.
If I can assist with anything further please let me know.
Manager Engagement, Communication and Education