One of Australia’s largest industry groups has hit back at claims its push to clarify what constitutes a “break” could lead to certain employees working 28-hour shifts without penalty rates.

The Australian Industry Group (Ai Group), an employers’ organisation covering industries including IT, manufacturing, engineering and telecommunications, made a submission to the Fair Work Commission (FWC) this week to make it clear that when a care workers stays over at a client’s house, this constitutes a break between shifts and can then go on to work another shift straight afterwards.

Certain disability support services and youth workers are required to stay at a client’s house in what’s known as a “sleepover” in the industry.

The Ai Group has argued that the current award covering these sectors is “ambiguous and uncertain” as to whether these “sleepovers” are part of a worker’s shift or are a break between shifts.

The group is asking the FWC to make the award “expressly and clearly identify that the performance of work on shifts before and after (and that are each contiguous with one end of a sleepover, are permitted as separate shifts each constituting ordinary hours”.

Currently, a “sleepover” could be counted as part of a carer’s work hours, meaning they would be paid overtime or penalty rates.

The Ai Group wants it to be made clear that a “sleepover” at a client’s house is a break, and that any hours worked after it constitute a new shift.

“Making the variation will therefore give clarity and certainty to employers that they can implement these arrangements without incurring a disproportionate shift penalty or requiring the routine performance of significant periods of time,” the Ai Group said in its submission.

Potential ‘nightmare’ shift

The push has been met with anger from the Australian Services Union (ASU), which said the changes could lead to carers working 28-hour shifts without overtime or penalty rates.

This would involve a 10-hour shift, followed by an eight-hour sleep at a client’s house and then another 10-hour shift.

“The business lobby is hellbent on making sleepover shifts a nightmare for community and disability support workers,” ASU NSW and ACT secretary Angus McFarland told The Guardian.

“It’s outrageous that employers are attempting to drag the pay and conditions of dedicated sleepover care workers backwards.

“Community and disability support workers who stay overnight at their workplaces receive overtime pay if they work more than 10 hours before or after their sleepover, but the big business lobby wants to double the hours required before overtime applies.

“Effectively, employers want workers to be on shift for more than a whole day for less pay.”

The Ai Group hit back at these claims, saying in a statement that they are “simply inaccurate” and that the push is about clarifying the “current ambiguous and notoriously unclear wording of certain award clauses”.

“Ai Group is not seeking a radical change to the current award terms or to take anything away from anyone,” Ai Group chief executive Innes Willox said in a statement.

“Ai Group’s application, in essence, seeks to address a technical anomaly in the wording of the award that has resulted in various provisions being controversially interpreted by some in a way which is unexpectedly and unsustainably generous to employees.”

Not affordable

Employers are unable to afford to pay carers for overtime and penalty rates if these sleepovers are not seen as a break, Willox said.

“It is unsurprising that unions are now seeking to opportunistically seize on a novel reading of the award that would deliver workers a windfall gain, but the reality is that the interpretation now favoured by unions simply can’t be afforded by many employers,” he said.

“If the unions’ controversial interpretation was accurate it would result in employers being exposed to costs that often aren’t funded by government schemes…and are simply unsustainable.

“Indeed, it would be ruinous for many not-for-profit employers, including many small employers and providers of crucial services to vulnerable people.”

Overtime is also a significant issue in the tech sector, with a recent study finding that IT workers in 35 per cent of organisations had worked more overtime in the last financial year, and just 7 per cent had seen their employees working less.

Another case at the FWC last year pushed for some tech, telco and medical research workers to receive overtime and increased penalty rate.

Information Age approached Ai Group for comment but did not receive a response.