The Aged Care Award is a critical part of Australia’s employment landscape, providing important protections and entitlements to workers in the aged care sector.
It covers entitlements including wages and entitlements, hours of work and overtime, shift work and rostering and leave arrangements.
With its complexity comes the very real risk of non-compliance, which can lead to substantial penalties for businesses. However, with the right guidance and understanding of the Aged Care Award, businesses can ensure that they comply with all relevant requirements.
This guide provides an overview of the award system and key requirements to enable employers to understand their obligations under the Award. It also offers useful tips on how best to comply with legal requirements.
Who Does the Aged Care Award Cover?
The Aged Care Award is a set of wage rates and conditions that apply to the aged care industry. It largely covers employers who provide accommodation and care services for the elderly in the following environments:
- Nursing homes
- Retirement villages
- Garden settlements
- Aged care services apartments and independent living units
- Other residential accommodation facility units
Examples of employees that the Aged Care Award covers include:
- Receptionists and administrative staff
- Personal care workers
- Cleaners and laundry hands
- Food services employees
- Drivers
- Grounds maintenance employees
- Interpreters
- Activity coordinators who provide group training services and other activities
Beyond these employees, the Aged Care Award covers employers in the labour-hire industry in respect of their employees in classifications covered by the Award, while they are working for an aged care services employer.
Importantly, it does not cover health professionals such as nurses, occupational therapists and physiotherapists, who work in an aged care setting.
Further, it does not cover employers that run rehabilitation centres for aged persons and home care service organisations.
Aged Care Award Employment Types
Employees under the Aged Care Award generally fall into one of three employment categories:
| Full-Time Employees | Part-Time Employees | Casual Employees |
| Engaged to work 38 ordinary hours per week or an average of 38 hours worked over either a 76 hour fortnight or 152 hours per four weeks. | Engaged to work a specific number of hours, fewer than 38 ordinary hours per week (or 76 hours over two consecutive weeks), on a reasonably predictable basis. | No guaranteed working hours. |
Part-Time Employee Minimum Engagement Periods and Entitlements
Part-time aged care service employees must be paid for a minimum of 2 hours per shift. This means that even if they work for a shorter period, they must still be paid for a minimum of 2 hours.
In addition, part-time employees are entitled to the same pay rates and employment conditions as full-time employees, but on a proportional basis according to their average number of hours per week. This includes entitlements such as annual leave and personal leave.
Casual Minimum Engagement Periods and Loading Rates
Casual aged care service employees must also receive at least 2 hours of pay per shift. They must receive a 25% loading on top of their ordinary base pay rate.
Casual employees do not receive various entitlements including annual and personal leave, paid public holidays, potential redundancy benefits, and notice of termination.
Right to Request Casual Conversion in the Aged Care Industry
Aged care employees’ rights in relation to casual conversion are set out in the National Employment Standards. In summary, employers must offer casual employees who have worked for 12 months an opportunity to convert to full-time or part-time employment if they have worked a regular pattern of hours for the last six months.
The casual conversion offered is on the premise that they could continue working without significant adjustment as a full-time or part-time employee. However, the offer is not required to be made where there are reasonable business grounds not to do so. For example, there is reason to believe that there will be significant changes in the casual employee’s work days and times within the next 12 months, no offer is required.
The employee may decide to reject an offer of casual conversion.
The NES also provides that casual employees may request to convert their employment type to full-time or part-time if they have been employed for at least 12 months and worked regular hours for the last 6 months. Employers can only refuse on reasonable business grounds.
Right to Request Casual Conversion in the Aged Care Industry
Aged care employees’ rights in relation to casual conversion are set out in the National Employment Standards. In summary, employers must offer casual employees who have worked for 12 months an opportunity to convert to full-time or part-time employment if they have worked a regular pattern of hours for the last six months.
The casual conversion offered is on the premise that they could continue working without significant adjustment as a full-time or part-time employee. However, the offer is not required to be made where there are reasonable business grounds not to do so. For example, there is reason to believe that there will be significant changes in the casual employee’s work days and times within the next 12 months, no offer is required.
The employee may decide to reject an offer of casual conversion.
The NES also provides that casual employees may request to convert their employment type to full-time or part-time if they have been employed for at least 12 months and worked regular hours for the last 6 months. Employers can only refuse on reasonable business grounds.
What are an Aged Care Employee’s Hours of Work?
The ordinary weekly hours for part-time and full-time employees under the Aged Care Award run between 6:00am and 6:00pm, Monday and Friday, unless the employee is a shift worker (as discussed below).
The maximum number of ordinary hours per shift is 8 hours for a day shift or 10 hours for a night shift.
Employers must structure these hours of work for full-time employees to ensure the average hours of work do not add up to more than:
- 38 hours per week,
- 76 hours per fortnight, or
- 152 hours per 4 weeks.
The Aged Care Award allows employees to work these hours over a maximum of either 20 work days per 28-day period or 19 work days (with the 20th day being a paid day off) per 28-day period.
Employee Rosters and Rostered Days Off Under the Aged Care Award 2022
A part-time or full-time employee is entitled to:
- Two full rostered days off per week on their roster
- Four full rostered days off every two weeks on their roster
- Eight full rostered days off within a 28-day cycle on their roster
Ideally, these days off should be consecutive if it is feasible for the employer.
Additionally, the Aged Care Award mandates a minimum 10-hour break between shifts. However, both the employee and employer can mutually agree to reduce this break to 8 hours.
Employers must make staff rosters easily accessible to all employees on the roster. The roster can be changed at any time if both the employer and employee agree or if the employer gives the employee seven days’ notice in writing (such as via email or text message).
In emergencies beyond the employer’s control, the requirement to provide seven days’ notice for roster changes may be waived.
Shift Work Employees
For the purpose of the Aged Care Award, employees who do not work within the normal span of hours (i.e. 6:00am to 6:00pm, Monday to Friday), are considered shift workers. If an employer wishes to hire an employee as a shift worker, their employment contract should specify that they are being hired as a shift worker.
Employers must pay shift workers penalty rates for all ordinary hours worked during their shifts, as follows:
| Shift Type | Penalty Rate (Additional Loading Rate: % of Minimum Hourly Rate) |
| Afternoon – shift starts between 10:00 am and 1:00 pm | 10% |
| Afternoon – shift starts between 1:00 am and 4:00 pm | 12.5% |
| Night – shift starts between 4:00 pm and 4:00 am | 15% |
| Night – shift starts between 4:00 am and 6:00 am | 10% |
What are Accrued Days Off (ADO)?
An employer and a full-time employee can agree to a work arrangement whereby the employee accumulates Accrued Days Off.
For example, let’s say you have a full-time employee whose typical working hours are 38 hours per week. But instead of working an average of 7.6 hours per day, they work 8 hours per day. Essentially, this means they accumulate an additional 0.4 hours (or 24 minutes) each day.
Over the course of a month, this adds up to 7.6 hours of extra time, since your employee works an additional 24 minutes each day for 19 days. Accordingly, the employee may take one accrued day off per month to use this extra time.
ADOs can be accumulated by an employee, provided they’re taken within 12 months.
If your employee has not taken all their ADOs and their employment is terminated, you must pay these days out at the employee’s ordinary rate.
Does Your Employee Work Any Broken Shifts?
An employee and employer may mutually agree to work a broken shift, and the employee will be paid at their ordinary rate with any applicable shift penalties and overtime rates, but there are certain conditions.
For the purposes of the Aged Care Award, a broken shift is a shift that is divided into parts worked in a single day, with a total span of not more than 12 hours and breaks totallying no more than 4 hours.
Each portion of the broken shift must meet the minimum engagement requirements i.e. 4 hours for full-time employees and 2 hours for part-time and casual employees.
If an employee performs any work beyond the maximum span of 12 hours for a broken shift, you must pay them double their ordinary rate.
An employee must also have a minimum break of 10 hours between broken shifts on consecutive days.
What are the Conditions for Sleepover Shifts?
Due to the nature of the aged care industry, some facilities offer services that require staff to do sleepover shifts to be available for emergencies.
As with broken shifts, there are certain conditions that you have to meet if you require your employee to work a sleepover shift.
The following conditions apply to each sleepover shift:
- Employees are entitled to a sleepover allowance for each night they sleepover.
- The total length of the sleepover must be between 8 and 10 hours.
- The employer must provide free board and lodging, including a separate room with a bed
- Employees must have access to necessary staff facilities.
- An employer can only require its employees to attend to emergencies during sleepovers. An emergency is any unplanned occurrence or event requiring prompt action.
- If the situation requires any non-emergency work to be done during a sleepover, the employer must pay the employee at the appropriate hourly rate (typically overtime rates) from the start of the sleepover to the end of the non-emergency work, or from the start of the non-emergency work to the end of the sleepover (whichever is the lesser), in addition to the sleepover allowance.
- Where emergency work is done during the sleepover, all time counts as time worked and must be paid. Full-time employees are entitled to overtime pay, while part-time and casual employees are paid their ordinary rate plus relevant shift and weekend penalties, or overtime rates if they work more than their maximum ordinary hours per week or fortnight.
- Sleepover shifts must either commence immediately after an employee’s shift or immediately before an employee’s shift.
- Where an employee does not have 8 consecutive hours off because they perform work during their sleepover, before starting their next shift, they must be paid double their normal rate until they can take the break.
- Employers may only use casual employees for sleepovers where full-time or permanent part-time employees are not available.
Ordinary hours of work on Saturdays and Sundays
Since the ordinary span of hours under the Aged Care Award solely involves work between Monday and Friday, any employee whose ordinary work hours fall on a Saturday and Sunday must be paid according to the following penalty rates:
| Rate for full-time and part-time employees (% of ordinary rate) | Rate for casual employees (% of ordinary rate including loading) | |
| Ordinary hours worked between midnight on Friday and midnight on Saturday | 150% | 175% |
| Ordinary hours worked between midnight on Saturday and midnight on Sunday | 175% | 200% |
Employees Must Receive Breaks
Employers must give aged care services employees paid rest (tea) breaks and unpaid meal breaks based on their ordinary hours of work as follows:
| Number of hours work | Paid tea (rest) break | Unpaid meal break |
| 5 hours to 7.6 hours (7 hours and 36 minutes) | Employees receive one x 10 minute paid rest break | Employees receive one meal break of not less than 30 minutes and not more than 60 minutes |
| 7.6 hours (7 hours and 36 minutes) or more | Employees receive two x 10 minute paid rest breaks that they can only take after the first hour of work and/or the first hour after their meal break. | Employees receive one meal break of not less than 30 minutes and not more than 60 minutes |
Aged Care Pay Rates
Employers must pay their employees under the Aged Care Award at least the pay rates and entitlements contained in the award, either weekly or fortnightly, depending on their pay period cycle.
The Fair Work website has various tools and resources to help you calculate your minimum wages.
Alternatively, you can access the pay guide summaries containing information about pay rates, penalties and allowances.
However, note that these pay rates are adjusted annually per the national minimum wage. Therefore, you need to use the applicable pay guide summary when determining the applicable pay rates.
Higher Duty Pay Conditions
An employee who does work that carries a higher wage rate more than their usual job must be paid the wage higher rate for:
- the time they work for 2 hours or less, or
- a full day or shift if they work more than 2 hours.
What are the Aged Care Award Allowances?
Eligible employees under the Aged Care Award receive additional pay, in the form of allowances, for specific work conditions and work-related skills, including:
| Allowance Type | Description |
| Clothing and equipment allowance | The employer will provide employees who are required to wear uniforms with a sufficient number of uniforms at no cost. However, if the employer does not supply the uniform, they will have to pay the employee an allowance to cover the cost of the uniform and laundering expenses. |
| Leading hand allowance | An employee who is in charge of supervising two or more employees is known as a leading hand. A leading hand receives a weekly allowance based on the number of employees they oversee. |
| Meal allowance | If an employee works more than one hour of overtime, the employer must provide them with a meal or pay them an allowance. |
| Nauseous work allowance | Employees who handle linen of a nauseous nature and/or unusually dirty or offensive work are entitled to an additional allowance. |
| Vehicle allowance | If employees are required and authorised to use their own motor vehicle in the course of their duties, they will receive an allowance. |
| Tool allowance | Chefs and cooks who are not provided with all the necessary tools by the employer will receive a tool allowance for the supply and maintenance of tools. |
| Travelling reimbursement | If the employer cannot provide appropriate transport while an employee is travelling on duty, the employer must reimburse all reasonably incurred expenses, including fares, meals, and accommodation. |
These allowances are generally adjusted annually. You can access the full allowance conditions in clause 15 of the Aged Care Award and the allowance rates in the relevant pay guide.
Superannuation Guarantee
All employers must pay a superannuation guarantee on behalf of their employees. The current rate is 10.5% of an employee’s ordinary earnings for the 2022–23 financial year.
Overtime Rates for Aged Care Employees
If a full-time employee is required to work beyond their rostered ordinary hours on any day or a part-time employee is required to work in excess of 38 hours per week or 76 hours per fortnight, in excess of 10 hours per day, they must receive overtime payments according to these overtime rates:
| Overtime Worked | Full-time and part-time employees (% of the minimum hourly rate) | Casual employees (% of the minimum hourly rate, inclusive of casual loading) |
| Monday to Friday – first 2 hours | 150% | 187.5% |
| Monday to Friday – after 2 hours | 200% | 250% |
| Saturday or Sunday | 200% | 250% |
| Public Holiday | 250% | 312.5% |
Can Employees Request Time Off Instead of Overtime?
Under the Aged Care Award, the employee and employer may mutually agree to allow the employee to take time off instead of receiving overtime pay. The agreement must, however, meet specific conditions, including:
- the agreement must be in writing;
- there must be a separate written agreement for each occasion;
- the time off must be the same number of hours as the number of overtime hours worked (e.g. an employee who works 3 hours of overtime is entitled to 3 hours of time off);
- employees must take the time off within six months of working the overtime (or be paid for the overtime at the overtime rate which applied when the overtime was worked); and
- if an employer terminates the employee, they must pay the overtime out.
Other Overtime Conditions that Employers Must Note
Beyond the additional pay rates and time off, the Aged Care Award sets out additional conditions that apply when an employee works overtime:
- Rest period after overtime: full-time and part-time employees must receive at least 10 consecutive hours off after working overtime and before their next shift starts, without loss of pay. If they don’t receive the 10 hours rest period, they must be paid a 200% penalty rate for each hour until they finish their shift – after which they must receive their 10 hours rest period.
- Call back: if an employee is called back to work after their work day or shift ends (i.e. they left the premises), they must be paid for at least 4 hours of overtime work (even if they don’t work the full 4 hours). If an employee is regularly called back to work, the minimum payment can be reduced to 3 hours.
- Rest breaks: An employee who is recalled to work more than 4 hours of overtime must be given a 20-minute paid meal break.
What are the Annual Leave Provisions According to the National Employment Standards?
The National Employment Standards (NES) prescribe the annual leave provisions for employees covered by the Aged Care Award.
In addition to the employee’s annual leave, employers must pay 17.5% leave loading.
Shift workers are required to receive the higher of:
- an annual leave loading of 17.5% of their ordinary pay rate; or
- the weekend and shift penalties the employee would have received if they weren’t on leave during that period.
Further, those who work shifts and are rostered regularly to work on Sundays and public holidays receive five weeks of paid annual leave.
What Alternative Annual Leave Arrangements Can an Employee Request?
- Leave in advance: An employee and employer can agree in writing on paid annual leave in advance of the leave accruing.
- Cashing out annual leave: Employees and employers may agree in writing to cash out certain amounts of paid annual leave, provided certain conditions are met, including that at least four weeks of accrued annual leave remain.
- Excessive leave accruals: Employees and employers may agree to reduce or eliminate excessive leave accruals by taking some of their leave. Fair Work defines excessive leave accrual as having accrued more than eight weeks of paid annual leave, or ten weeks for a shift work employee.
Key Takeaways
If you are unsure of your responsibilities under the Aged Care Award, it might be helpful to engage an employment law firm.
WilliamsonBarwick lawyers have experience with the Aged Care Award and can help you understand your obligations. They can also help you with any conflicts that may arise under the Award between yourself and an employee.
Contact us today to discuss your needs.
