[2019] FWCFB 8179

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Supported Employment Services Award 2010
(AM2014/286)

Social, community, home care and disability services
VICE PRESIDENT HATCHER DEPUTY PRESIDENT BOOTH COMMISSIONER CAMBRIDGE	SYDNEY, 3 DECEMBER 2019

4 yearly review of modern awards – Supported Employment Services Award 2010.

Introduction and background

[1] On 29 May 2017, this Full Bench was constituted to hear and determine a number of applications to vary the Supported Employment Services Award 2010 (SES Award) as part of the 4 yearly review of modern awards then being conducted pursuant to s 156 of the Fair Work Act 2009 (FW Act). The main issue raised by those applications is the means by which minimum wage rates for disabled employees covered by the SES Award should be determined, and this decision is primarily concerned with determining that issue. The applications also raised some ancillary issues which are described later and dealt with in this decision.

The legislative framework

[2] Section 156 was repealed by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 effective retrospectively from 1 January 2018, but clause 26 of Schedule 1 to the FW Act (which was added by the amending Act) requires the Commission to continue to apply s 156 to the current review of the SES Award as if had not been repealed. The former s 156(2) of the FW Act provided:

What has to be done in a 4 yearly review?

(2) In a 4 yearly review of modern awards, the FWC:

(a) must review all modern awards; and

(b) may make:

(i) one or more determinations varying modern awards; and

(ii) one or more modern awards; and

(iii) one or more determinations revoking modern awards; and

[3] However, the conduct of the 4 yearly review is subject to s 138, which provides:

138 Achieving the modern awards objective

A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.

[4] The modern awards objective to which s 138 refers is set out in s 134(1) as follows:

What is the modern awards objective?

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

[5] Section 134(2)(a) provides that the modern awards objective applies to the performance or exercise of the Commission’s function or powers under Pt 2-3 of the FW Act.

[6] The minimum wages objective is set out in s 284(1) as follows:

What is the minimum wages objective?

(1) The FWC must establish and maintain a safety net of fair minimum wages, taking into account:

(a) the performance and competitiveness of the national economy, including productivity, business competitiveness and viability, inflation and employment growth; and

(b) promoting social inclusion through increased workforce participation; and

(d) the principle of equal remuneration for work of equal or comparable value; and

(e) providing a comprehensive range of fair minimum wages to junior employees, employees to whom training arrangements apply and employees with a disability.

[7] The general principles applicable to the conduct of the 4-yearly review established in Federal Court Full Court decisions and decisions of Full Benches of this Commission were summarised in Alpine Resorts Award 2010 as follows: 1

• section 156(2) provides that the Commission must review all modern awards and may, among other things, make determinations varying modern awards;

• “review” has its ordinary and natural meaning of “survey, inspect, re-examine or look back upon”; 2

• the discretion in s 156(2)(b)(i) to make determinations varying modern awards in a review is expressed in general, unqualified, terms, but the breadth of the discretion is constrained by other provisions of the FW Act relevant to the conduct of the review;

• in particular the modern awards objective in s 134 applies to the review;

• the modern awards objective is very broadly expressed,³ and is a composite expression which requires that modern awards, together with the NES, provide “a fair and relevant minimum safety net of terms and conditions”, taking into account the matters in ss 134(1)(a)–(h);⁴

• fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question; 5

• the obligation to take into account the s 134 considerations means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process; 6

• no particular primacy is attached to any of the s 134 considerations and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award; 7

• it is not necessary to make a finding that the award fails to satisfy one or more of the s 134 considerations as a prerequisite to the variation of a modern award; 8

• the s 134 considerations do not set a particular standard against which a modern award can be evaluated; many of them may be characterised as broad social objectives; 9

• in giving effect to the modern awards objective the Commission is performing an evaluative function taking into account the matters in s 134(1)(a)–(h) and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance;

• what is necessary is for the Commission to review a particular modern award and, by reference to the s 134 considerations and any other consideration consistent with the purpose of the objective, come to an evaluative judgment about the objective and what terms should be included only to the extent necessary to achieve the objective of a fair and relevant minimum safety net; 10

• the matters which may be taken into account are not confined to the s 134 considerations; 11

• section 138, in requiring that a modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective, emphasises the fact it is the minimum safety net and minimum wages objective to which the modern awards are directed; 12

• what is necessary to achieve the modern awards objective in a particular case is a value judgment, taking into account the s 134 considerations to the extent that they are relevant having regard to the context, including the circumstances pertaining to the particular modern award, the terms of any proposed variation and the submissions and evidence; 13

• where an interested party applies for a variation to a modern award as part of the 4 yearly review, the task is not to address a jurisdictional fact about the need for change, but to review the award and evaluate whether the posited terms with a variation meet the objective. 14

[8] In relation to the SES Award and the issues raised in the review of that award, section 153 of the FW Act has specific relevance and application. Section 153 provides:

153 Terms that are discriminatory

Discriminatory terms must not be included

(1) A modern award must not include terms that discriminate against an employee because of, or for reasons including, the employee's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Certain terms are not discriminatory

(2) A term of a modern award does not discriminate against an employee:

(a) if the reason for the discrimination is the inherent requirements of the particular position held by the employee; or

(b) merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3) A term of a modern award does not discriminate against an employee merely because it provides for minimum wages for:

(a) all junior employees, or a class of junior employees; or

(b) all employees with a disability, or a class of employees with a disability; or

The SES Award

[9] Clause 4.1 of the SES Award provides that it covers employers throughout Australia who operate “supported employment services” and their employees working in the classifications listed in Schedule B of the award. The expression “supported employment services” is defined in clause 3.1 to mean “a service as defined in section 7 of the Disability Services Act 1986 (Cth)”. Section 7 of the Disability Services Act 1986 contains the following definition:

"supported employment services" means services to support the paid employment of persons with disabilities, being persons:

(a) for whom competitive employment at or above the relevant award wage is unlikely; and

(b) who, because of their disabilities, need substantial ongoing support to obtain or retain paid employment.

[10] Supported employment services were in past times referred to as “sheltered workshops” or “business services” but their contemporary appellation is “Australian Disability Enterprises” (ADEs), and that is how they will be referred to in this decision. ADEs employ non-disabled persons who are covered by the SES Award, but consistent with their purpose the large majority of employees of ADEs are disabled persons.

[11] Schedule B of the SES Award contains seven classifications. Broadly speaking, Grade 1 is an introductory classification, Grades 2, 3 and 4 are non-trades classifications, Grades 5 and 6 are trades classifications and Grade 7 is a supervisory/training classification. The classification descriptors are expressed in broad and generic terms, and the indicative tasks include functions in the areas of engineering, catering, cleaning, leather and canvas goods and sewing, microfilm, clerical support, gardening, laundries, specialist packing, printing/bookbinding, foam and plastic, cleaning, commercial biscuit and pastry making, horticulture and related activities and recycling.

[12] Clause 14 prescribes the minimum wages for the classifications set out in Schedule B. For relevant purposes, there are two aspects to the way in which clause 14 does this. First, clause 14.2 sets out the weekly rate and hourly rate for each classification. The current rates of pay are as follows:

Grade	Weekly rate $	Hourly rate $
Grade 1	740.80	19.49
Grade 2	762.10	20.06
Grade 3	791.30	20.82
Grade 4	818.50	21.54
Grade 5	862.50	22.70
Grade 6	941.10	24.77
Grade 7	979.10	25.77

[13] It should be noted that the rates of pay for Grades 1, 2, 3, 4, 5 and 6 are aligned with those for the classification levels C14, C13, C12, C11, C10 and C7 in the Manufacturing and Associated Industries and Occupations Award 2010 respectively.

[14] Clause 14.4 then provides for employees with a disability to be paid a percentage of the rates of pay prescribed by clause 14.2 as assessed under an approved wage assessment tool chosen by an ADE. At the time that the SES Award first took effect on 1 January 2010, clause 14.4 provided as follows:

14.4 Wage assessment—employees with a disability

(a) An employee with a disability will be paid such percentage of the rate of pay of the relevant grade in clause 14.2 as assessed under an approved wage assessment tool chosen by a supported employment service.

(b) For the purposes of this clause, an approved wage assessment tool means and is limited to:

(i) the Supported Wage System;

(ii) the Business Services Wage Assessment Tool;

(iii) the Civic Industries Supported Employees Wage Assessment Tool;

(iv) the Elouera Association Wage Assessment Tool;

(v) the FWS Wage Assessment Tool;*

(vi) the Greenacres Association Competency Based Wages System;

(vii) the Hunter Contracts Wage Assessment Tool;*

(viii) the Phoenix Wage Assessment Tool;*

(ix) the PHT Wage Assessment Tool;

(x) the Skillsmaster Wage Assessment Tool;

(xi) the Yumaro Wage Assessment Tool;

(xii) the Woorinyan Wage Assessment Tool;

(xiii) the RVIB Enterprises Wage Assessment Tool;

(xiv) the Koomarri Competency Based Wages System;

(xv) the Valmar Support Services Wage System;

(xvi) the Sunnyfield Association Wage Assessment Tool;

(xvii) the New Horizons Wage Assessment Tool;

(xviii) the Cumberland Industries Wage Assessment Tool;

(xix) the Endeavour Wage Assessment Tool;*

(xx) the Wangarang Industries Wage Assessment Tool;

(xxi) the Bedford Employee Wage Assessment Tool;

(xxii) the Blue Mountains Employment Services Wage Assessment Tool;*

(xxiii) the Ability Options Wage Assessment Tool;

(xxiv) the Blueline Laundry Inc Wage Assessment Tool;

(xxv) the Caloola Vocational Services Inc Wage Assessment Tool;

(xxvi) the GDP Industries Wage Assessment Tool;

(xxvii) the Kurri Contracting Service Wage Assessment Tool;

(xxviii) the Mai-Wel Group Wage Assessment Tool;

(xxix) the Merriwa Industries Limited Wage Assessment Tool; and

(xxx) the Waverley Helpmates Wage Assessment Tool.

* Wage Assessment Tools restricted to those specific organisations unless an employer was using that tool on or before 27 June 2005.

(c) The Supported Wage System is described in Attachment B to the Australian Industrial Relations Commission Full Bench decision of 3 April 2009 [[2009] AIRCFB 345].

(d) Wage assessment tools clauses 14.4(b)(i) to (xxii) are described in the Final Report dated 12 April 2006 prepared for the Department of Families, Housing, Community Services and Indigenous Affairs, entitled Analysis of Wage Assessment Tools used by Business Services.

(e) Wage assessment tools clauses 14.4(b)(xxiii) to (xxx) are described in the Final Report dated 18 October 2007 prepared for the Department of Families, Housing, Community Services and Indigenous Affairs, entitled Analysis of Wage Assessment Tools used by Business Services.

(f) No decrease—regression of disability

An employee with a disability will not have their rate of pay reduced as a result of a wage assessment made pursuant to clause 14.4(a). This clause does not cover the circumstance where the wage of an employee with a disability may need to be reduced due to the regression of the employee’s disability. However, a wage assessment that determines a lower percentage than an earlier wage assessment of the employee against the same duties is of no effect unless the reduction in percentage is solely due to the regression of the employee’s disability. Before the wage of an employee may be reduced the employer must exhaust all reasonable training options and options to allocate the employee new tasks to avoid the regression. Where regression of wages is provided for in the wage assessment tool against which the employee was assessed, regression may only occur in accordance with the method provided for in that tool.

(g) Review of assessment

For the purpose of clause 14.4(a):

(i) unless otherwise provided under the relevant wage assessment tool, the wage assessment of each employee with a disability will be reviewed within a period not exceeding three years’ service with the supported employment service since the last assessment, and the rate of pay adjusted accordingly; and

(ii) unless otherwise provided under the relevant wage assessment tool, a wage assessment may be reviewed at the initiative of either the employee with a disability or the supported employment service, once every six months and not more than four times every three years, and the rate of pay adjusted accordingly.

(h) Documentation of assessment

Any assessment made under clause 14.4(a) must be documented by the supported employment service and a copy provided to the employee with a disability, and, if requested, to the employee’s authorised representative.

[15] Clause 19 of the SES Award concerns superannuation. Clause 19.2 requires that, subject to clause 19.5, an employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee. Clause 19.5 has at all relevant times provided:

19.5 Employees with disabilities

Where an employee with a disability is being paid less than $450 per month in accordance with clause 14.4, contributions for such employees will be either 3% of their ordinary time earnings or $6.00 per week whichever is the greater.

[16] The evidence before us demonstrated, and it was not in dispute that, with rare exceptions, disabled employees covered by the SES Award are paid a reduced minimum wage as a result of an assessment carried out with the use of a wage assessment tool pursuant to clause 14.4. Consequently, a significant proportion of such employees earn less than $450 per month and are therefore paid superannuation in accordance with clause 19.5.

[17] Arising from the review of modern awards required by item 6 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 which commenced in 2012, the SES Award was varied effective from 27 September 2012 to, among other things, delete clause 14.4(c) and add a new Schedule D to the award. 15 As can be seen above, clause 14.4(c) had referred to an attachment to a decision issued by the AIRC award modernisation Full Bench on 3 April 2009 which explained the operation of the Supported Wage System (SWS).16 As a result of the variation, this was now set out in Schedule D of the award itself. Schedule D in its original form provided as follows:

Schedule D—Supported Wage System

D.1 This schedule defines the conditions which will apply to employees who because of the effects of a disability are eligible for a supported wage under the terms of this award.

D.2 In this schedule:

approved assessor means a person accredited by the management unit established by the Commonwealth under the supported wage system to perform assessments of an individual’s productive capacity within the supported wage system

assessment instrument means the tool provided for under the supported wage system that records the assessment of the productive capacity of the person to be employed under the supported wage system disability support pension means the Commonwealth pension scheme to provide income security for persons with a disability as provided under the Social Security Act 1991, as amended from time to time, or any successor to that scheme

relevant minimum wage means the minimum wage prescribed in this award for the class of work for which an employee is engaged

supported wage system means the Commonwealth Government system to promote employment for people who cannot work at full award wages because of a disability, as documented in the Supported Wage System Handbook. The Handbook is available from the following website: wage assessment agreement means the document in the form required by the Department of Education, Employment and Workplace Relations that records the employee’s productive capacity and agreed wage rate

D.3 Eligibility criteria

D.3.1 Employees covered by this schedule will be those who are unable to perform the range of duties to the competence level required within the class of work for which the employee is engaged under this award, because of the effects of a disability on their productive capacity and who meet the impairment criteria for receipt of a disability support pension.

D.3.2 This schedule does not apply to any existing employee who has a claim against the employer which is subject to the provisions of workers compensation legislation or any provision of this award relating to the rehabilitation of employees who are injured in the course of their employment.

D.4 Supported wage rates

D.4.1 Employees to whom this schedule applies will be paid the applicable percentage of the relevant minimum wage according to the following schedule:

Assessed capacity (clause D.5) %	Relevant minimum wage %
10	10
20	20
30	30
40	40
50	50
60	60
70	70
80	80
90	90

D.4.2 Provided that the minimum amount payable must be not less than $76 per week.

D.4.3 Where an employee’s assessed capacity is 10%, they must receive a high degree of assistance and support.

D.5 Assessment of capacity

D.5.1 For the purpose of establishing the percentage of the relevant minimum wage, the productive capacity of the employee will be assessed in accordance with the Supported Wage System by an approved assessor, having consulted the employer and employee and, if the employee so desires, a union which the employee is eligible to join.

D.5.2 All assessments made under this schedule must be documented in an SWS wage assessment agreement, and retained by the employer as a time and wages record in accordance with the Act.

D.6 Lodgement of SWS wage assessment agreement

D.6.1 All SWS wage assessment agreements under the conditions of this schedule, including the appropriate percentage of the relevant minimum wage to be paid to the employee, must be lodged by the employer with Fair Work Australia.

D.6.2 All SWS wage assessment agreements must be agreed and signed by the employee and employer parties to the assessment. Where a union which has an interest in the award is not a party to the assessment, the assessment will be referred by Fair Work Australia to the union by certified mail and the agreement will take effect unless an objection is notified to Fair Work Australia within 10 working days.

D.7 Review of assessment

The assessment of the applicable percentage should be subject to annual or more frequent review on the basis of a reasonable request for such a review. The process of review must be in accordance with the procedures for assessing capacity under the supported wage system.

D.8 Other terms and conditions of employment

Where an assessment has been made, the applicable percentage will apply to the relevant minimum wage only. Employees covered by the provisions of this schedule will be entitled to the same terms and conditions of employment as other workers covered by this award on a pro rata basis.

D.9 Workplace adjustment

An employer wishing to employ a person under the provisions of this schedule must take reasonable steps to make changes in the workplace to enhance the employee’s capacity to do the job. Changes may involve re-design of job duties, working time arrangements and work organisation in consultation with other workers in the area.

D.10 Trial period

D.10.1 In order for an adequate assessment of the employee’s capacity to be made, an employer may employ a person under the provisions of this schedule for a trial period not exceeding 12 weeks, except that in some cases additional work adjustment time (not exceeding four weeks) may be needed.

D.10.2 During that trial period the assessment of capacity will be undertaken and the percentage of the relevant minimum wage for a continuing employment relationship will be determined.

D.10.3 The minimum amount payable to the employee during the trial period must be no less than $76 per week.

D.10.4 Work trials should include induction or training as appropriate to the job being trialled.

D.10.5 Where the employer and employee wish to establish a continuing employment relationship following the completion of the trial period, a further contract of employment will be entered into based on the outcome of assessment under clause D.5.

Initial proceedings and their origin

[18] The catalyst for the proceedings before us was the decision of the Federal Court Full Court in Nojin v Commonwealth of Australia (Nojin), 17 issued on 12 December 2012. We discuss this decision in greater detail below but, in summary, the Full Court determined (by majority) that the respondent ADE had discriminated against the applicants, who were intellectually disabled persons, in breach of s 15 of the Disability Discrimination Act 1992 by imposing on them a requirement or condition that in order to secure a higher wage the applicants undergo a wage assessment using the Business Services Wage Assessment Tool (BSWAT). The BSWAT was at the time an approved wage assessment tool under clause 14.4(b)(ii) of the SES Award.

[19] On 16 December 2013, the Health Services Union (HSU) and the United Workers’ Union (UWU) 18 made a joint application under s 160 of the FW Act for the reference to the BSWAT in clause 14.4(b) of the SES Award to be removed. This application was subsequently amended to seek the removal of all wage assessment tools which contained a competency component. The application was referred to a Full Bench for determination, and the Full Bench then referred the application for conciliation before one of its members, Deputy President Booth. Participants in the conciliation process which followed included the HSU, the UWU, the Australian Council of Trade Unions (ACTU), National Disability Services (NDS), Australian Business Industrial and the NSW Business Chamber (ABI), a number of disability advocacy representatives including the AED Legal Centre (AEDLC), managers from individual ADEs and representatives of parents and carers including Our Voice Australia (Our Voice). The Commonwealth Department of Social Services (DSS) also attended the conciliation conferences as an observer.

[20] During this conciliation process, an interim agreement was reached between all the participating parties that, in light of the Full Court’s decision in Nojin, the BSWAT should be removed from the list of approved wage assessment tools in clause 14.4(b) of the SES Award. A consent order varying the SES Award was made by Deputy President Booth on 5 June 2015 to give effect to this agreed position. 19

[21] On 15 October 2015, Deputy President Booth issued a Statement (October 2015 statement) 20 which gave a progress report as to the continuing conciliation process. It reported that the participating parties had agreed that their shared objectives in connection with the Award were as follows:

“a) A fair, equitable and non-discriminatory wage outcome to contribute to a living income for employees in supported employment;

b) Continued opportunity for employment in supported employment settings to build and maintain the self-esteem and sense of purpose of employees;

c) Sustainable employment opportunities in viable ADEs; and

d) To provide security and confidence to employees, parents and carers for the future.”

[22] While the conciliation process was underway, the 4 yearly review of the SES Award commenced. Deputy President Booth conducted a number of conferences in relation to the review in the period from 22 August 2016 to 29 May 2017. The same parties who were involved in the earlier conciliation process also participated in the award review process. On 5 May 2017 the HSU and the UWU discontinued their s 160 application on the basis that they would pursue their outstanding claims in the award review.

[23] One of the matters considered in the award review conference process conducted by Deputy President Booth was the potential modification of the SWS. With the support of the DSS, field work was conducted in furtherance of this issue. Ultimately it was agreed that variations to the provisions governing the operation of the SWS in ADEs contained in Schedule D to the Award as well as to the Supported Wage System Handbook under the Supported Employment Services Award (2010) (SWS Handbook), a publication of the Australian Government, should be made.

[24] On 29 May 2017 the current Full Bench was constituted to hear and determine outstanding substantive matters in respect of the 4 yearly review of the SES Award. Directions were issued in that connection on 10 July 2017 which, among other things, required any party which proposed any variation to the SES Award to file a draft determination to give effect to their proposal by 31 July 2017. In response to that direction, draft determinations were filed by the AEDLC, ABI, the UWU, NDS, Our Voice and the HSU. The details of the variations sought by each party are described later in this decision.

[25] In a decision issued on 10 October 2017 (October 2017 decision) 21 we determined to vary Schedule D of the SES Award in the terms agreed by the parties which participated in the conference process conducted by Deputy President Booth. Our decision relevantly stated:

“[5] The SWS is managed by the DSS. The DSS publishes the SWS Handbook and the SWS Assessment Guidelines. The DSS funds and oversees the assessment process in line with the SWS Handbook and the SWS Assessment Guidelines. During the conciliation the DSS assisted the parties’ discussions by supporting fieldwork in relation to a range of possible modifications to the SWS to apply when the SWS is used to assess the wages of people with disability in an ADE pursuant to the Award.

[6] During the period that the conciliation conferences for the application were being conducted, the 4 Yearly Review of Modern Awards (the Award Review) of the Award commenced. On 22 August 2016 Deputy President Booth conducted the first conciliation conference in the Award Review. She conducted conciliation conferences concerning the Award Review between 22 August 2016 and 29 May 2017.

[7] The Award Review was publicised via the Commission website so that any other interested parties could join the conciliation conferences if they so wished. The subject matter of the application was also addressed at these conciliation conferences. No one other than the parties to the application conciliation conferences attended the Award Review conciliation conferences. On 5 May 2017 the HSU and the UWU discontinued the application. They indicated their intention to pursue the balance of their claims in the Award Review. Conciliation conferences continued pursuant to the Award Review. The DSS continued to assist the parties’ discussions by supporting field work to consider modifications to the SWS.

[8] Following the field work and subsequent discussions during conciliation conferences, the parties agreed to a further variation to the Award. The agreed variation amends Schedule D to the Award. Schedule D sets out the parameters for the implementation of the SWS in an ADE. The parties have agreed to a number of modifications to those parameters. The DSS consulted with the parties during the conciliation conferences about complementary amendments to the SWS Handbook and Guidelines.

[9] We are satisfied that this variation to the Award is appropriate and consistent with the modern awards objective in s.134(1). The variation will take effect on 17 October 2017. A determination will issue with this decision reflecting this variation to the Award.”

[26] The main changes to Schedule D were contained in new clauses D.4 and D.5 as follows:

D.4 Supported wage rates

D.4.1 Employees to whom this schedule applies will be paid the applicable percentage of the relevant minimum hourly rate of pay. The applicable percentage will be the higher of:

(a) the assessed productive capacity of the employee determined in accordance with clause D.5 rounded to the nearest whole percentage; and

(b) 12.5%, if the assessed productive capacity of the employee determined in accordance with clause D.5 is less than 12.5%.

D.4.2 For the avoidance of doubt, there is no minimum amount payable to an employee per week.

D.5 Assessment of capacity

D.5.2 All assessments made under this schedule must be documented in an SWS wage assessment agreement, and retained by the employer as a time and wages record in accordance with the Act.

D.5.3 The approved assessor will assess the productive capacity of the employee having regard to:

(a) where an employer has collected workplace data with respect to an employee:

(i) the workplace data—50% weighting; and

(ii) the data collected by the approved assessor in accordance with the Supported Wage System—50% weighting;

(b) otherwise—the data collected by the approved assessor in accordance with the Supported Wage System.

D.5.4 Where, in undertaking an assessment in accordance with clause D.5.3(a), there is a disparity of greater than 20% between the overall productivity percentage calculated from the workplace data and the overall productivity percentage calculated from the data collected by the approved assessor, the employee, employer and approved assessor may agree to collect additional data. The additional data should be collected as soon as practicable and added to the existing data with respect to the employee for the purpose of undertaking the assessment in clause D.5.3(a).

D.5.5 If, in undertaking an assessment in accordance with clause D.5.3(a), including in circumstances where additional data is collected in accordance with clause D.5.4:

(a) the disparity between the overall productivity percentage calculated from the workplace data and the overall productivity percentage calculated from the data collected by the approved assessor is 20% or less, then the productive capacity of the employee will be determined in accordance with clause D.5.3(a); or

(b) the disparity between the overall productivity percentage calculated from the workplace data and the overall productivity percentage calculated from the data collected by the approved assessor is greater than 20%, then the productive capacity of the employee will be assessed in accordance with clause D.5.3(b).

D.5.6 In addition to an employee’s general right to access clause 9—Dispute resolution, an employee or an employer may:

(a) raise a dispute in accordance with the dispute processes outlined in the Supported Wage System Handbook; and

(b) after exhausting the process provided in clause D.5.6(a), raise a dispute in relation to the assessment of the employee's assessed productive capacity in accordance with clause 9. In those circumstances, the Commission may, in exercising its powers under clause 9.6, make a determination as to the employee's productive capacity, having regard to the reasonableness of the workplace data and the data collected by the approved assessor and fairness between the parties in all of the circumstances.

[27] It may be noted that the minimum amount of 12.5% of the minimum hourly rate of pay provided for in the new clause D.4.1(b) equates, in relation to Grade 2 of the SES Award, to an hourly rate of approximately $2.50. The modified Schedule D also varied:

• clause D.7 to provide for an enhanced process for the review of SWS assessments; and

• clause D.10 to extend the trial period for the conduct of an assessment, with the employee to be paid the at least 12.5% of the relevant minimum hourly rate during the trial period.

The claims

[28] We have earlier referred to the draft determinations embodying the claims for variation of the SES Award that were lodged by parties pursuant to the Commission’s directions. A number of these claims were amended as the proceedings progressed. It is only necessary for present purposes to describe the claims in the form in which they were ultimately advanced by each party.

[29] The AEDLC proceeded at the hearing upon an amended draft determination lodged on 22 December 2017. The fundamental feature of its application was the amendment of clause 14.4 so that the SWS becomes the only wage assessment tool permitted to be used. The actual variations to clause 14 which it sought were as follows: 22

[1] By deleting clause 14.4(a) and in lieu thereof inserting what follows:

An employee with a disability may from time to time be required by an employer to undergo assessment under and in accordance with the Supported Wage System referred to in Schedule D.

[2] By deleting clauses 14.4(b)-(e) and lieu thereof inserting a clause, numbered as clause 14.4(b), as follows:

If an employee with a disability is assessed under clause 14.4(a), the employer may, subject to clause 14.4(c), pay the employee the applicable percentage, as determined by that assessment, of the minimum hourly rate of pay prescribed by clause 14.2 for the grade that applies to the employee's work.

[3] By deleting 14.4(f) and in lieu thereof inserting a clause, numbered as clause 14.4(c), as follows:

If the most recent Supported Wage System assessment undertaken under clause 14.4(a) discloses a reduction in the employee's productivity when compared with the immediately prior assessment for the same work and the reduction in productivity is solely due to a regression in the employee's disability, the employer must not reduce the employee's wage unless:

(i) the employer has first exhausted all reasonable training options and options to allocate the employee work that would avoid the reduction in the employee's rate of pay; and

(ii) any reduction occurs in accordance with any method prescribed by the Supported Wages System in Appendix D1 of Schedule D.

[4] By deleting clause 14.4(g).

[5] By deleting clause 14.4(h) and inserting a clause in the same terms but numbered as clause 14.4(d).

[6] By deleting clause 14.6.

[30] ABI advanced a claim for a new “Work Value Classification Structure” to be added to the SES Award as Schedule I, which would operate as an alternative to ADEs that chose not to utilise an approved wage assessment tool. ABI’s proposal went through a number of iterations, the final one of which was contained in a further amended draft variation determination filed on 24 January 2018. 23 The main feature of this proposal is a five level classification structure under which disabled employees would be paid specified percentages of the minimum rate specified in clause 14.2 for a Grade 2 employee. The percentages are 12.5% for the lowest Training and assessment level classification, 15-30% for Level A, 30-45% for Level B, 45-60% for Level C, and 70-100% for Level D. Each classification is assigned classification descriptors which refer to a combination of the work performed by the employee but also the personal characteristics of the particular disabled employee, so that Level A for example refers to the employee being “directly supervised”, “continually requires a high level of Work Support [and] … Personal Support”, “is incapable of organising their own work”, “does not work to any pre-set pace”, “has some difficulty staying on task or remaining at their work station”, “requires the quality of their work to be constantly checked” and “performs very basic tasks”. The expressions “Personal Support” and “Work Support” are defined, so that the former is the “care and support of an employee with a disability in the workplace provided by a trainer and/or supervisor”, which may include “encouragement; mentoring; counselling; and/or behavioural intervention” and the latter is the “support of an employee with a disability in the workplace provided by a trainer and or supervisor” which may include “the design of work tasks (including the disaggregation of work tasks to sub-tasks) tailored to the employee to allow them to perform a productive task” as well as “coaching and/or training” in base work skills, work task, the use of machinery, communicating with others in the workplace or commuting to and from work. The percentage of the Grade 2 wage to be paid to employees within the proposed Levels A, B, C and D is determined by the employee’s “output” as a percentage of the output of a non-disabled employee person carrying out the employee’s task, with there being four wage points in each Level based upon whether the employee’s output is 25% or under, over 25% but under 50%, over 50% but under 75%, or 75% and over. ABI’s proposal also contains a mechanism for the review of an employee’s classification.

[31] Our Voice sought the inclusion in the SES Award of a new provision entitled “Rights at Work for Supported Employees” which was ultimately advanced in the following terms:

Rights at Work for Supported Employees

(a) When dealing with employment matters affecting supported employees the employer shall take all reasonable steps to provide such employees with the information they require to exercise their employment rights.

(b) Such reasonable steps will include but are not limited to the following.

• Providing information to supported employees of their right to be a member of the union and be represented in the workplace by a union representative.

• Providing information in relation to seeking information and or assistance from the Fair Work Ombudsman.

• Providing information to a supported employee about their right to have their nominee, guardian, carer, parent/family member, advocate or union assist them in making decisions about employment matters.

(c) In addition to those matters listed in sub-clause (b) the employer shall take reasonable steps to provide the opportunity to the supported employee to have their nominee, guardian, carer, and/or parent/family member to be involved and or consulted in employment matters that may be prejudicial to the supported employee’s interests.

(d) Such matters shall include but not be limited to:

• significant workplace change;

• grievances, including disputes under clause 28;

• redundancies;

• disciplinary matter;

• performance appraisals;

• wage assessments; and

• enterprise bargaining.

[32] The UWU’s claim was for the superannuation contribution amount payable to disabled employees who earn less than $450 per month pursuant to clause 19.5 to be increased. It accordingly proposed that clause 19.5 be replaced with the following new provision:

19.5 Where an employee with a disability is being paid less than $450 per month in accordance with clause 14.4, contributions for such employees will be either 9.5% of their ordinary time earnings or $15.00 per week whichever is the greater.

The hearing process and expression of preliminary views

[33] Pursuant to the directions issued on 10 July 2017, interested parties filed evidence and submissions concerning the proposals for variations to the SES Award in the latter half of 2017. The matter was listed for hearing before us on 5-9 February and 12-16 February 2018.

[34] As part of the hearing process and after receiving opening submissions on 5 February 2018, we conducted the following inspections of ADEs:

6 February 2018

• Endeavour Foundation

59-65 Kurrajong Road Mt Druitt NSW

• Disability Services Australia,

247 King St Mascot NSW

7 February 2018

• Greenacres Disability Services

2/4 Ralph Black Drive North Wollongong

• Greenacres “Brewing up a Storm” Cafe

93-99 Burelli St Wollongong

• Flagstaff Group

254 Nolan St Unanderra

[35] We heard evidence from witnesses who were required to attend for cross-examination on 8-9 February and 12-14 February 2018, and received closing submissions on 15 and 16 February 2018.

[36] Having given consideration to the evidence and submissions, we issued a statement on 16 April 2018 (April 2018 Statement) 24 in which we expressed provisional views concerning the issues raised by the claims advanced by AEDLC and ABI. The relevant parts of the April 2018 Statement were as follows (footnotes omitted):

[14] During the hearing we conducted inspections of a number of ADEs in Sydney and Wollongong, received witness statements and heard evidence from a large number of witnesses, including expert witnesses, and were assisted by extensive written and oral submissions from the parties. We will in due course, subject to what we state below, issue a full decision stating our findings as to the evidence and our final conclusions as to the matter. However because we do not propose to grant any of the claims relating to wages and wage assessment in the form proposed by the respective claimant organisations but rather consider it likely that it will be necessary to vary the Award in terms not proposed by any party, we consider that the proper course is to state a number of provisional conclusions we have reached and to give the parties an opportunity to consider them, confer and, if necessary, advance further submissions concerning them.

[15] The provisional conclusions we have reached are as follows:

(1) Supported employment covered by the Award has a valuable and socially significant role in providing employment to primarily intellectually disabled persons for whom, at current or foreseeable levels of government support, the achievement and maintenance of open employment would not be viable. ADEs are able to employ disabled persons by adjusting their daily job tasks to suit their abilities, in circumstances where an equivalent open employment job role may not be able to be completed by a single ADE employee.

(2) The determination of wages for supported employees by the use of the wage assessment tools currently prescribed in clause 14.4 of the Award does not meet the modern awards objective because:

• they produce different wage outcomes for persons performing equivalent tasks at equivalent levels of competency;

• in substance they permit employers to establish their own classification structure and pay rates rather than apply pay rates properly derived from the Award; and

• may in some cases contravene the Disability Discrimination Act 1992 for reasons similar to those found in the Nojin decision in relation to the BSWAT assessment tool.

(3) The SWS does not, by itself and in its current form, represent an appropriate method of determining the wage rates for supported employees in ADEs because it:

• does not take into account the proper range of work value considerations used to assess award wage rates, namely the nature of the work, the level of skill and responsibility involved in doing the work and the conditions under which the work is done (which, in the context of supported employment, would include the complexity of the task(s) performed, the range of tasks performed, and the level of support required in order for the task(s) to be performed);

• may not adequately measure non-productive time at work on the part of supported employees; and

• does not provide a sufficiently objective and relevant means of identifying the performance benchmark by which any SWS assessment is conducted.

We emphasise that we express no conclusion about the operation of the SWS in the context of open employment.

(4) The modified SWS to be introduced into the Award effective from 1 July 2018, by consent and in the context of the current arrangements which allow an employer to choose from a range of wage assessment tools, does not adequately address the second problem identified above, and does not address at all the first and third problems.

(5) The existing classification structure in Schedule B of the Award, in relation to which the wage assessment tools are intended to operate, is also inadequate and unlikely to meet the modern awards objective. This is principally because it has not been structured with the specific circumstances of supported employment in mind, has not been drafted in a way which clearly identifies the work tasks and skills required of a fully competent employee at each grade, and may on one view be read as entitling supported employees in ADEs who perform only disaggregated parts of a single job to the full classification rate.

(6) The classification structure proposed by ABI/NSWBC, although we accept it was advanced in a somewhat embryotic form, is not appropriate for adoption or further development because it requires the formation of excessively subjective judgments on the part of the employer in classifying employees and focusses upon the individual characteristics of the employee to be classified rather than the nature and value of the work to be performed and the degree of support required to be provided by the employer.

(7) We consider that the use of all the existing wage assessment tools should be phased out over a period of time. They should be replaced by a redesigned classification structure for Grades 1-3 of the Award which sets the full award wage rates together with a single prescribed method for the adjustment of the award wage rates for supported employees. This new wage assessment mechanism should meet the objectives of fairness, equality, objectivity, independence and sustainability, and be non-discriminatory.

(8) The new classification structure should, at each grade, generally describe the range of tasks which a fully competent employee would have the capacity to perform to the reasonable output and quality standard required by the employer in a given industry or occupational area of work. At Grade 2, this would involve a simple and repetitive range of tasks performed under a normal industry-standard level of supervision, and Grade 3 would involve a range of somewhat more complex tasks.

(9) The new wage assessment mechanism would be a hybrid model involving two elements:

(a) An assessment of the “size” of the job actually assigned to the supported employee compared to a job which would attract the full Award rate of pay at Grade 1, 2 or 3. This would involve a work value assessment with particular focus on the range of tasks required to be performed compared to the relevant Award classification, the complexity of those tasks and the skills required to perform them, and the degree of support necessary to allow the employee to perform those tasks. This might involve, for example, an actual job assigned to a supported employee being “sized” in increments of 20%, 40%, 60%, 80% and 100% of a job to which an Award classification in Grades 1-3 would apply.

(b) Once the job was properly “sized”, a modified SWS-type assessment would be carried out to determine the output of the supported employee in discharging that job compared to the output of a person without that employee’s disability performing the same job. This assessment would have to take into account any non-productive periods on the part of the supported employee and provide for an objective and consistent method of benchmark-setting.

The result would be, for example, that if the job was “sized” at 60% of a full Award classification job, and if the supported employee could perform that job at an output level of 50% compared to another person who can perform to the employer’s reasonable expectation of output, the wage rate would be 30% of the Award classification minimum rate of pay. A minimum of 12.5% of the full award hourly rate would continue to apply.

(10) The interested industry parties and the Commonwealth will be given an opportunity to participate in a conferral process conducted by a member of this Full Bench in order to design a new classification structure and wage assessment mechanism consistent with the above conclusions. This conferral process will include consideration of:

• the length of the phase-out period for the existing wage assessment tools;

• the establishment of objective criteria for the “sizing” of jobs performed by supported employees;

• how the SWS might be modified, or an analogous mechanism established, for the measurement of the output of a supported employee in a particular job; and

• transitional arrangements concerning existing wage rates and transitional time periods for ADEs with a demonstrated economic incapacity to pay.

(11) We consider it highly desirable that both elements of the new wage assessment mechanism be supported by the provision by the Commonwealth of trained and independent assessors. We therefore consider that the close involvement of the Commonwealth in the design of the detail of the new wage assessment mechanism would be in the public interest.

(12) The new wage assessment mechanism should be trialled early in the phase-out period to determine its wage cost impact and to identify any other difficulties before the Commission approves its inclusion in the Award.

(13) If a broad consensus about the design of the new wage assessment mechanism cannot be reached within a reasonable timeframe, then this will be determined by us.

[16]A report-back hearing concerning the above provisional conclusions will be listed after the parties have had a reasonable opportunity to consider the contents of this Statement. We will state our conclusions concerning the UWU’s claim for increased superannuation contributions and Our Voice Australia’s claim for a “Rights at Work for Supported Employees” clause in our final decision.

[37] As paragraph [15](10) of the April 2018 Statement disclosed, it was our preference that there would be a consensus among the interested parties in favour of participation in a conferral process to design a new classification structure consistent with the principle we identified. However, no such consensus emerged. At a report back hearing conducted on 29 May 2019, the following parties indicated a non-preparedness to engage in a constructive conferral process:

• the AEDLC requested that “Option 2” be taken (that is, final determination of the outstanding matters by the Full Bench);

• the UWU submitted that there was not “any realistic capacity” for the interested parties to reach agreement, and that the most appropriate course would be to deal with the outstanding matters by way of “Option 2”; and

• the HSU submitted that it had “significant concerns” about a number of matters raised in the April 2018 Statement and was not prepared to participate in a conferral process beyond a strictly limited period of time (being four dates in June 2018 which were indicated by us as being available for the envisaged conferral process).

[38] Accordingly, we did not proceed with the envisaged conferral process.

[39] On 5 July 2018 correspondence (dated 4 July 2018) was received from Mr Paul McBride, Group Manager, Disability, Employment and Carers in the DSS. Omitting formal parts, the correspondence stated:

“Concerning matter AM2014/286 Supported Employment Services Award 2010

I refer to the 16 April 2018 Statement, published by the Fair Work Commission (the Commission), which states that interested industrial parties and the Commonwealth will be given an opportunity to participate in a conferral process conducted by a member of the Full Bench. I understand that this conferral process will facilitate the design of a new classification structure and wage assessment mechanism, consistent with the conclusions of the Full Bench. Further to the directions hearing of 29 May 2018 and the submissions made by the parties at that time, I am pleased to advise that the Minister for Social Services, the Hon Dan Tehan MP has announced the Australian Government will provide up to $0.95 million to support any agreed trial and analysis activities in the Commission to inform a new wage assessment approach under the Supported Employment Services Award 2010. The Department of Social Services, on behalf of the Commonwealth, will continue to participate in the proceedings, as invited to do so by the parties that are covered by the Award and by the Commission. I note the Commission considers it highly desirable that both elements of the proposed new wage assessment mechanism be supported by the provision of trained and independent assessors by the Commonwealth. Implementation matters, which may have an impact on the expenditure of public funds, would need to be considered by Government at an appropriate time once the features of the proposed wage assessment mechanism are known.”

[40] On 11 September 2018 we issued a further statement (September 2018 Statement) 25 in which we reviewed the events since the April 2018 Statement, confirmed that given the attitude taken by the AEDLC, the UWU and the HSU it was unlikely that the conferral process envisaged in the April 2018 Statement would achieve any consensus, and accordingly stated that it would be necessary to determine to finality the outstanding matters before us. To that end the September 2018 Statement made directions as follows:

“[6] We direct that written submissions in response to the 16 April 2018 Statement are to be filed in the Commission on or before 19 October 2018. Such submissions may include:

(1) any submissions which any party wishes to make concerning the merit of the provisional views expressed in the Statement; and

(2) any proposal which any party wishes to advance concerning the design and implementation of the new wage assessment mechanism outlined in the Statement, should the Full Bench ultimately determine to proceed with the provisional views expressed therein.

[7] A party may address the second matter in its written submissions without prejudice to any submissions it wishes to make concerning the first matter.”

[41] After having received written submissions in accordance with the above directions, we conducted a further hearing on 5 and 6 November 2018 at which we received further oral submissions. We then reserved our decision.

Last minute intervention by the Department of Social Services

[42] On 9 September 2019, at a time when the publication of our decision in this matter was imminent, we received correspondence (addressed to the presiding member of the Full Bench) from Mr Michael Lye, the Deputy Secretary, Disability and Carers of the DSS. Omitting formal parts, the correspondence stated:

“I refer to the statement of 11 September 2018, published by the Fair Work Commission (the Commission), which states the Full Bench considers it is necessary to proceed to determine to finality the matters before it.

I am writing to advise you of recent developments that may be relevant to the Commission during its deliberations.

A new pricing structure for employment support is scheduled to be announced by the National Disability Insurance Agency (NDIA) in October 2019. Indicative modelling by the Department of Social Services (the Department) has shown the majority of Australian Disability Enterprises (ADE) are likely to be better off financially once this new pricing has been implemented. This may help to alleviate current pressures that prevent some ADEs from adopting a higher-paying wage tool, such as the Supported Wage System.

The Australian Government is committed to playing an ongoing role in supporting ADEs to continue to provide employment opportunities for people with disability, subject to the details of the Commission's decision. To this end, in the 2018-19 Budget, the Government announced the Australian Disability Enterprise (ADEs) Additional Support measure. The Government will provide $67 million over the forward years from 2018-19 to support ADEs to transition to a new wage assessment model following a decision by the Commission on its review of the SES Award.

On the basis that future National Disability Insurance Scheme (NDIS) pricing, alone or in conjunction with Australian Government funding, may enable ADEs to adopt the Supported Wage System tool, the Department is considering consultation with parties to the proceedings.

In this context, I would be grateful for your advice whether such a consultation could occur prior to a determination by the Commission.”

[43] We regarded this correspondence as a potentially significant development because, as is discussed later in this decision, the likely cost to ADEs of implementing the SWS as the sole wage assessment tool is an important consideration in the outcome we have determined. Consequently, the presiding member sent the following correspondence to the DSS in reply on behalf of the Full Bench on 25 September 2019 (formal parts omitted):

“I refer to your correspondence dated 9 September 2019 concerning the above matter, in which you provided information concerning forthcoming funding changes which may affect Australian Disability Enterprises (ADEs), and sought advice as to whether the Department of Social Services should consult with the parties to the proceedings concerning this prior to the Commission issuing its decision. As you are aware, this matter is being heard by a Full Bench of the Commission consisting of myself, Deputy President Booth and Commissioner Cambridge. I have consulted with my Full Bench colleagues about your correspondence, and this letter constitutes our joint response.

The proceedings concerning the minimum wage structure for disabled employees in ADEs in the Supported Employment Services Award 2010 (Award) has been ongoing for some time. The Full Bench has received extensive evidence and submissions from interested parties which has, among other things, addressed the level of wages payable to disabled employees in the context of the current financial and commercial position of ADEs. That position is critically affected by the degree of government funding which ADEs receive both directly and indirectly, and the proceedings before the Full Bench have been conducted within the framework of what was currently known and predicted concerning such government funding.

The Full Bench had, immediately before the receipt of your correspondence, reached a position whereby it intended to issue its decision in the matter within a 2-3 week timeframe. The decision which the Full Bench intended to issue had regard to the existing financial and commercial position of ADEs as earlier described and would involve significant modifications to the minimum wages structures in the Award.

It appears to us that your correspondence of 9 September 2019 is indicative of funding changes that may fundamentally alter the framework in which the proceedings have been conducted to date. We consider that it is likely to be necessary for the decision we make to take into account these changes, and that may render it necessary in turn for interested parties to be given an opportunity to make further submissions in relation to the variations, if any, to be made to the minimum wages structure in the Award in light of these changes.

It is of course a matter for the Department whether, when and to what extent it engages in consultation with interested parties in the ADE sector about the foreshadowed funding changes. However, in terms of the proceedings concerning the Award before the Full Bench, we consider that the appropriate course is for the Department to lodge with the Commission a publiclyavailable submission concerning the funding changes and their potential consequences for the outcome of the Award proceedings. If this is done in a reasonably timely way, the Full Bench would then consider postponing the publication of its decision and instead inviting interested parties to provide advice as to how they wish to proceed in light of the Department’s submission.”

[44] Upon receipt of this correspondence, the DSS indicated that it would file a further submission in response to our invitation to do so. In anticipation of the receipt of this further submission, we re-listed the matter for a further hearing on 23 October 2019 to allow the parties to be heard as to what procedural course should be taken in light of the DSS’s submissions.

[45] The DSS’s submission was eventually filed on 22 October 2019. After describing by way of background the existing funding model for ADEs and disabled persons using ADEs, the submission identified two changes to the funding. The first was a revised pricing structure for the National Disability Insurance Scheme (NDIS) which introduced an “hours based per participant model” that would:

• reflect the actual hours of support provided to the participant per week, which may include non-face-to-face work time if appropriate;

• vary depending on the expected level of workplace supports a participant needs;

• align NDIS funded employment support prices with NDIS funded community participation support price.

[46] The DSS said that “the hourly rates for supported employment are generally higher under the revised pricing model compared to prior case based funding.”

[47] The second was an announcement made in the 2019-20 Budget that the Commonwealth Government would provide $67 million over five years from 2018-19 to support ADEs transitioning to a new wage assessment model “following a review of the SES Award by the Commission”. The purpose of this funding was described as follows:

“This funding will be used to support ADEs to transition to the wage assessment tool determined by the Commission and is separate to funding provided through the NDIS. The transitional funding provided by the Department is intended to assist ADEs in meeting costs associated with transitioning to a different model of wage assessment. Details of the new support package are currently under development and subject to Government consideration and approval. The Department intends to consult in detail over coming months with the sector and other key stakeholders to inform its development. It is not intended that ongoing funding be made available for wage subsidies.”

[48] Having regard to these funding changes, the DSS submitted:

“48. While the increase in the funding of supports is not provided to subsidise the cost of employee wages, the increase in funding available for employment supports may be relevant to an ADE's capacity to fund the wages of supported employees because:

(a) an increase in funding may lead to an enhanced service offering and greater level of support for a supported employee, thereby resulting in higher productivity/output;

(b) the increase in funding for supports may mean that ADEs may have the ability to direct more of their revenue (which, anecdotally, is currently directed by some ADEs at meeting some of the costs of providing supports and maintaining the work environment which are not met through existing funding) to employee wages.

49. For ADEs which currently use wage assessment tools other than the MSWS, the increase in funding may make it viable to transition to use the MSWS for all their supported employees.

50. In those circumstances, it may be appropriate for the Commission to seek further submissions from ADEs (and others) in relation to potential changes to wage assessment arrangements and, in particular, the use of the MSWS as the single wage assessment tool.”

[49] The DSS also made, for the very first time in the proceedings, a submission concerning the coverage of the SES Award:

“51. The SES Award is currently expressed to cover employers throughout Australia who operate supported employment services and their employees working in the classifications specified in the Award.

52. The coverage of the Award is critical to ensuring that ADEs providing supported employment are covered by the Award and that other employers in open employment are not.

53. ‘Supported employment services’ is defined in the Award as meaning a ‘service’ as defined in section 7 of the Disability Services Act 1986 (Cth).

54. The Disability Services Act provides a legislative and funding framework for a range of disability services including employment services. Section 7 of the DS Act defines supported employment services as:

services to support the paid employment of persons with disabilities, being persons:

(a) for whom competitive employment at or above the relevant award wage is unlikely; and

(b) who, because of their disabilities, need substantial ongoing support to obtain or retain paid employment.

55. Following the transition to the NDIS, there is a question as to whether an ADE will continue to be a ‘supported employment service’ for the purpose of the DS Act where their funding is derived from the NDIS and not pursuant to the DS Act.

56. The Commission and the parties may wish to consider whether the definition of ‘supported employment services’ under the SES Award is, and will remain into the future, appropriate given that:

• the funding model for supported employment has shifted away from funding under the DS Act; and

• the revised pricing model for employment support under the NDIS is not limited to a participant’s employer as not all employers of NDIS participants are NDIS providers.”

[50] At the hearing on 23 October 2019, the DSS submitted that it wished to engage with the ADE sector about the implementation of the new NDIS pricing structure and the impact this would have on ADEs. It described the outcome of this process as an “important piece of information” for the Commission to have in its decision-making process, and consequently it should happen before the Commission issued its decision. The DSS said that the new pricing mechanism would come into effect on 1 January 2020, and that the engagement process it foreshadowed would take approximately 12 weeks. The AEDLC supported this proposed approach (notwithstanding that it had previously sent corresponding to the Commission urging the early publication of our decision in this matter), as did the HSU. It was strongly opposed by ABI, NDS, Greenacres Disability Services (Greenacres), The Endeavour Foundation (Endeavour) and Our Voice, which urged us to proceed to issue our decision as soon as practicable. In expressing their opposition to any further delay in the proceedings, NDS and Greenacres both contended that the new NDIS pricing structure would reduce rather than increase their funding.

[51] Immediately after the completion of the hearing on 23 October 2019, we issued directions inviting interested parties to file written submissions in response to the DSS’s submission of 22 October 2019, with the DSS then having the opportunity to file a reply submission if it wished to. Submissions were filed by ABI, NDS, Greenacres, The Flagstaff Group Ltd (Flagstaff), Practical Workplace Relations and the AEDLC. All parties except the AEDLC opposed any further deferral of the publication of the Commission’s decision, and NDS, Greenacres and Flagstaff in particular filed detailed submissions explaining that the new NDIS pricing structure would cause significant reductions rather than increases to their funding revenue. The AEDLC submitted that, notwithstanding its concern about the time the proceedings had taken, the late timing of the DSS’s intervention and its reservation as to various aspects of the DSS’s submissions, it supported the DSS’s proposal that there should be a 12 week consultation period, to be followed by a report back before the Commission 15 January 2020.

[52] The DSS filed a submission in reply on 13 November 2019 which affirmed the need for further consultation with ADEs concerning the new NDIS funding model, but stated:

“The Department has not suggested, and does not suggest, that the Commission's decision with respect to the terms of the SES Award should be delayed pending this consultation process. While the further information about the pricing framework expected to be published by the NDIA and the outcomes of the Department's consultation with ADEs could be relevant to the Commission's considerations on the terms of the SES Award, the question of whether it is appropriate to defer any decision pending these processes is ultimately a matter for the Commission.”

[53] The above submission is difficult to reconcile with the submission made by the DSS at the hearing on 23 October 2019. Notwithstanding this, the current position is that the DSS does not seek any deferral of the publication of our decision. It is also clear that the Department’s proposition that the new NDIS funding model would enhance the revenues of ADEs and thereby potentially allow the introduction of the SWS as the sole wage assessment tool is strongly contested by ADEs. It might be noted at this point that it appears to be implicit in the DSS’s position that current funding levels might not be sufficient to sustain the industry-wide implementation of the SWS.

[54] That being the position, the DSS’s last-minute intervention has not caused us to delay further issuing our decision.

The parties’ positions

AED Legal Centre

[55] The AEDLC submitted that its proposed variation to clause 14 of the SES Award should be made because:

• clauses 14.4(a) and (b) do not satisfy the modern awards objective or the minimum wage objective, and are contrary to s 153(1) of the FW Act because they are discriminatory;

• clause 14.4(a) confers an unfettered right on the employer to choose from 29 methods of valuing the work of a disabled employee, with the result that valuations are likely to differ from one employee to another for the same class of work, regardless of the effects of their disabilities;

• as an example of this, a comparison of the Greenacres tool and the Skillsmaster tool showed that they resulted in different wages outcomes for persons performing similar work;

• it would be permissible under clause 14.4 for an employer to select a different tool for different employees within the same enterprise, resulting in inconsistent wage outcomes within a single workplace;

• clauses 14.4(a) and (b) result in multiple work valuations for disabled employees, while for non-disabled employees there is one constant standard;

• clause 14.4(a) singles out employees with a disability for an inferior wage for performance of the same class of work as other employees to whom clause 14.2 applies.

• unlike non-disabled workers, employees with a disability cannot ascertain what rate of pay they are entitled to as the SES Award only specifies a percentage of the relevant grade;

• some tools such as the Greenacres tool contain their own sub-classification system that re-classifies the SES Award classifications and arbitrarily allocates a percentage of the SES Award rate to each sub-classification;

• clauses 14.4(a) and (b) do not establish a guaranteed safety net of minimum wages as they offer 29 methods of determining a wage by means of 29 self-contained processes; and

• the fact that 29 ways of valuing the same work exists results in unnecessary complexity and technicality which is inconsistent with s 134(1)(g) of the FW Act.

[56] The AEDLC submitted that the SWS is an appropriate wage-setting methodology because it is adapted for the determination of minimum wages for employees with a disability covered by the SES Award, achieves the objects of the FW Act, is a simple, transparent and non-discriminatory method for setting a rate of pay for disabled workers, is independently conducted by accredited workplace assessors, and is capable of being disputed under the SES Award. The AEDLC proposal would ensure that the SES Award contains terms that set fair and relevant minimum wages for disabled employees, having specific regard to the matters stated in ss 134(1)(a),(c),(d) and (g), and was also consistent with the minimum wages objective, in that it would establish the means by which fair minimum wages are set having regard to ss 284(1)(b),(c) and (e).

[57] It was also pointed out by the AEDLC that the following wage assessment tools in clause 14.4(b) of the SES Award are no longer in use and are redundant:

• Hunter Contracts Wage Assessment Tool;

• Phoenix Wage Assessment Tool;

• PHT Wage Assessment Tool;

• RVIB Wage Assessment Tool;

• Cumberland Industries Wage Assessment Tool;

• Wangarang Industries Wage Assessment Tool; and

• Ability Options Wage Assessment Tool.

[58] In relation to the existing wage assessment tools generally, the AEDLC submitted that there appeared to have been no re-consideration as to whether they constituted an appropriate wage-setting mechanism in the award modernisation process which led to the making of the SES Award.

[59] In response to provisional views expressed in the April 2018 Statement, the AEDLC submitted that:

• the factual premise in paragraph 15(1) that ADE employers are the only employers of disabled workers who adjust daily job tasks to suit the abilities of these workers was incorrect, since this was also done in open employment;

• it supported the conclusion in paragraph 15(2) that the determination of wages by the multiplicity of wage assessment tools in clause 14.4 fails to meet the modern awards objective, and it also supported the conclusion in paragraph 15(7) that there should be single method for the determination of wages;

• it did not support the re-classification of grades and the proposed hybrid model of the tool, which was based on acceptance of a false simple/complex dichotomy with respect to the range of work performed by ADE employees;

• the FW Act does not require that minimum rates of pay should be fixed by reference to a notionally fully competent employee who performs a notional single job composed of unspecified tasks;

• in awards such as the Fast Food Industry Award 2010, the Gardening and Landscaping Services Award 2010, the Nursery Award 2010 and the Dry Cleaning and Laundry Award 2010, the employer has discretion to determine or direct employees to perform other duties within the limits of their competence, skill and training, yet their rate of pay is fixed by their classification level and not the aggregation or disaggregation of the tasks the employee is directed/required to perform;

• provided that the work performed by an individual is work within a category of work of a particular nature, no change to the valuation of that work is implied from differences in the way in which work of that kind is performed from one employee to another or as between employers;

• no part of the work value concept calls for an assessment of the job size of an individual employee’s assigned work within a single classification;

• job size is only relevant in considering whether a new classification is justified within the classification structure or whether a worker can progress from one classification to another;

• job size is a unique way of viewing competency in the award system, as competency has generally been conceived in terms of skill level, and this concept would have discriminatory effects contrary to s 153(1);

• the proposed wage assessment tool does not promote the lifting of the minimum wage floor for ADE employees, but would rather diminish it;

• the SWS already discounts the full award wage and the proposed wage tool would entitle ADE employers to further discount wages by reference to competency and output criteria;

• adverse findings concerning the SWS would undermine the SWS more broadly including in relation to its use in open employment;

• there was no consensus in favour of the proposed wage assessment tool, and no conferral process had taken place concerning replacement of the SWS;

• there was no indication that the Commonwealth had shifted its support away from the SWS to the proposed wage tool;

• the proposed wage assessment tool threatens minimum wage uncertainty for supported employees for an extended period, as the Full Bench has no way of knowing how major elements of the approach (i.e. assessment of job size and individuals) will be delivered, by whom, how they will be paid for, how long it will take to determine or whether they can work appropriately and fairly in the multiplicity of work environments of employers;

• the job size element of the tool is conceived of a set of pre-determined, fixed and apparently arbitrary proportions of the full award wage, expressed as a range, and would serve as a proxy for the value of an individual’s work with the effect of reducing the quantum of minimum wages that would otherwise be payable for labour output;

• an employee would need to demonstrate greater work capacity in order to qualify for a higher wage based on the job size element of the proposed tool;

• the proposed tool may be indirectly discriminatory in a similar manner to what was found in Nojin with the BSWAT, in that a disabled employee with work impairments will be unable to comply with a condition that implicitly views what he cannot do as a basis for discounting his or her wages from the full minimum wage;

• this indirect discrimination arises from the fact that the job size element of the tool forges a direct link between the disability and the quantum of the minimum wage; and

• the proposed wage tool is not reasonable in that it views the adjustments that ADE employers make (and are obliged to make by law) for individual employees through a value lens and impose a wage penalty for them.

Health Services Union

[60] The HSU supported the variations proposed and submissions of the AEDLC and opposed ABI’s proposed new work value classification structure. Its position was that the SWS should be the only wage assessment tool permitted to be used under the SES Award. In response to the April 2018 Statement, the HSU submitted that the provisional view concerning the SWS was not supported by the evidence and might have implications for the use of the SWS outside the context of ADE employment. In relation to the proposal contained in the April 2018 Statement for a redesigned classification structure and a new hybrid model of wage assessment, the HSU submitted that it was problematic in that it involved a double discounting of wages for supported employees which would lead to very low and exploitative wages and therefore could not meet the objectives of a fair and non-discriminatory wage assessment.

[378] It will be necessary to undertake a number of steps before any determination arising from this decision takes effect. Firstly, we wish to give parties an opportunity to make further submissions about the determination which we presently consider should be made. We would particularly be assisted if such submissions addressed the proposed rates of pay and classification descriptors for the new Grades A and B, the new classification descriptors for Grades 1-7 and the implementation timetable (see below), as well as any other issues the parties consider relevant. We would also be assisted if the Commonwealth could advise as to its preparedness to provide the financial support which we have identified as being necessary. Secondly, we propose then to conduct a conference of those parties who are interested in endeavouring to achieve a consensus position as to the terms of the award variations to give effect to this decision, having regard to the draft determination in Attachment A. With the benefit of the submissions and the conference process, we will then be in a position to finalise the new wages structure which is to be the subject of the trial.

[379] We consider that the trial should be conducted over a period of three months, subject to any submissions on this issue which might be received. Once the trial is completed, the results should be made public, and interested parties will then be given an opportunity to make further submissions. We will then issue a final determination varying the SES Award. The results of the trial in terms of any changes to overall labour costs will be taken into account by us in setting the final wage rates for the new Grades A and B. We consider that the determination should not take effect until a further 14 months have passed, in order that ADEs have a proper opportunity to phase out the use of the existing wage assessment tools and transition to the new wages structure.

[380] The timetable we currently envisage is as follows:

17 December 2019 - receipt of further submissions concerning the new wages structure and advice from the Commonwealth Government concerning funding support.

20 December 2019 - conference of interested parties concerning the new wages structure.

31 January 2020 - Commission determines the final wages structure for the purpose of the trial.

1 March - 31 May 2020 - conduct of the trial of the new wages structure.

26 June 2020 - public release of information concerning the outcome of the trial.

17 July 2020 - receipt of any further evidence and submissions concerning the outcome of the trial and any consequential further modifications that might be required to the new wages structure.

10-14 August - further hearing if necessary.

30 October 2020 - final determination varying the SES to delete the existing wage assessment tools and add the new wages structure issued.

1 January 2022 – operative date of final determination, upon which existing wage assessment tools cease to operate and the new wages structure comes into operation.

Superannuation

[381] We have decided to grant the UWU’s claim in respect of superannuation. Two propositions which may be derived from the evidence and submissions justify that conclusion:

(1) The original award provision which is now clause 19.5 of the SES Award was constructed at a time when the superannuation guarantee levy was only 3%. It was evidently designed to benefit the lowest paid disabled employees by requiring contributions to be the greater of 3% or $6.00 per week. Now that the superannuation guarantee levy is 9.5%, the original rationale has been inverted such that clause 19.5 only serves to visit an arbitrary and discriminatory detriment upon the lowest paid disabled employees.

(2) The amount of contributions prescribed is too low to provide employees with any appreciable level of retirement savings once the effect of administrative fees and fees for required insurance products are taken into account. That is, the provision in its current form serves no beneficial purpose.

[382] We note that consideration was given by the AIRC award modernisation Full Bench in its 4 December 2009 decision 88 as to whether this provision should appear in the SES Award. The Full Bench said:

“[93] In relation to superannuation, we have decided not to alter the provision, not adjusted for many years, whereby an employee with a disability being paid less than 80% of the full award wage has a superannuation contribution made of either 3% of ordinary time earnings or $6.00 per week, whichever is the greater. This payment has relevance in this sector because significant numbers of employees with a disability earn less than $450 per month. Mindful that many employers not currently bound by the award do make provision at varying levels for superannuation contributions for employees with a disability, we have concluded that the current provision should be included in the modern award. We have also noted the National Disability Services 16 October 2009 written submission, ‘…that the contribution level should not be adjusted at this stage’ and the Parliamentary Secretary for Disabilities and Children’s Services 30 November 2009 correspondence to the Commission, indicating that it was the Australian Government’s intention to consult relevantly with stakeholders early in 2010. Should an application be made in the future for review of this provision it will be dealt with in the normal way.”

[383] There is no evidence before us as to any outcome of the Australian Government’s consultation with stakeholders about this issue (or whether this even occurred). No party before us advanced any industrial rationale for the continuation of clause 19.5. We consider that it plainly does not meet the modern awards objective in s 134(1) having regard to the two propositions stated above, and in reaching that conclusion we have placed particular weight on the needs of the low paid as referenced in s 134(1)(a). The only question concerns the cost impact to ADEs of moving disabled workers earning less than $450 per month to the standard contribution rate of 9.5% or $15 per week. We propose to deal with this issue by giving the variation a prospective date of operation of 1 October 2020, which will allow ADEs to prepare and also to engage with the Commonwealth about the issue. This is reflected in the draft determination in Attachment A to this decision. However, in accordance with the timetable set out in paragraph [380] above, we will invite further submissions concerning the operative date to be filed by 17 December 2019.

Rights at Work for Supported Employees clause

[384] We are wholly persuaded that the SES Award should be varied to include a clause concerning “Rights at Work for Supported Employees”, as proposed by Our Voice. The evidence makes clear that disabled employees working in ADEs are a vulnerable group, and are likely to require information, representation, consultation and assistance concerning workplace decisions which affect their interests to an extent that is far greater than for non-disabled employees. It is equally clear that it is necessary for such employees’ parents, family members, carers, guardians, nominees, advocates or union, as relevant, to be involved. No interested party opposed the provision, and we consider that it is necessary to include it in the SES Award in order to meet the modern awards objective. A provision of this nature will be of particular importance having regard to the significant changes in the minimum wages system for disabled employees which will be implemented as a result of this decision. The new clause should take effect from 1 March 2020.

[385] The new clause, which we have re-drafted to some degree for clarity, is contained in the draft determination in Attachment A to this decision. Parties may make further submissions concerning its drafting by 17 December 2019.

Coverage of the Award

[386] The earlier submission of the Department concerning the coverage of the SES Award are noted. Our provisional view is that no change to the definition of “supported employment services” in clause 3.1, by which the coverage of the award as expressed in clause 4.1 operates, is required. As explained at the outset of this decision, the award definition incorporates by reference the definition of “supported employment services” contained in s 7 of the Disability Services Act 1986. We do not consider that the change to the funding model for ADEs which we have earlier described has altered the validity of this definition. However, to ensure that the coverage of the SES Award is not inadvertently altered by independent legislative changes, we propose to place the statutory definition directly into the award. If any party opposes this course, they may file a submission in that respect within 14 days of the date of this decision.

VICE PRESIDENT

Appearances:

J Fleming for the Australian Council of Trade Unions

J Zadel on behalf of Civic Disability Industries

P Barker, A Botros, R Freeland, S Jordan, S Mulders-Jones, A Thomson and B Willsmore for the Department of Social Services, Commonwealth

C Brattey and M Stroppiana for Endeavour Foundation

Kerry Langford and P Musso for the National Disability Service

N Ward and S Zevari for the National Disability Service, Australian Business Industrial and the New South Wales Business Chamber

P Amos for Practical Workplace Relations

R Leibhaber and L Svendsen for the Health Services Union of Australia

M Walsh for Our Voice Australia

M Harding of counsel and K Wilson for the AED Legal Centre

C Christodoulou and T Dron for Greenacres Disability Services

S Bull for the United Workers’ Union

Hearing details:

2018

February

5, 6, 7, 8, 9, 12, 13, 14, 16

May

November

Printed by authority of the Commonwealth Government Printer

ATTACHMENT A

PROPOSED DETERMINATION

The Supported Employment Services Award 2010 is varied as follows:

1. Insert the following new clause:

9A. Rights at Work for Supported Employees

9A.1 When dealing with employment matters affecting supported employees the employer shall take all reasonable steps to provide such employees with the information they require to exercise their employment rights.

9A.2 Such reasonable steps will include but are not limited to the following.

• Providing information to supported employees of their right to be a member of the union and be represented in the workplace by a union representative.

• Providing information in relation to seeking information and or assistance from the Fair Work Ombudsman.

• Providing information to a supported employee about their right to have their nominee, guardian, carer, parent or other family member, advocate or union assist them in making decisions about employment matters.

9A.3 In addition to those matters listed in clause 9A.2 the employer shall take reasonable steps to provide the opportunity to the supported employee to have their nominee, guardian, carer, parent or other family member, advocate or union involved in, or consulted or act as the employee’s representative in employment matters that affect or may affect the supported employee’s interests.

9A.4 Such matters shall include but not be limited to:

• consultation about significant workplace change under clause 8;

• consultation about changes to rosters or hours of work under clause 8A;

• any dispute under clause 9 or other grievance;

• wage assessments under clause 14.4(a) and Schedule D;

• any disciplinary matter; and

• performance appraisals.

2. Delete clause 14 and insert the following:

14. Minimum wages

14.1 Upon engagement, an employee will be graded by the employer in one of the grades in Schedule B—Classifications having regard to the employee’s skills, experience and qualifications and the nature of the position in which the employee is employed.

14.2 Subject to clauses 14.3, 14.4 and 14.5 the following minimum rates of pay will apply for the grades set out below:

Grade	Weekly rate $	Hourly rate $
Grade A	266.00	7.00
Grade B	532.00	14.00
Grade 1	740.80	19.49
Grade 2	762.10	20.06
Grade 3	791.30	20.82
Grade 4	818.50	21.54
Grade 5	862.50	22.70
Grade 6	941.10	24.77
Grade 7	979.10	25.77

NOTE: For the purpose of this award, the hourly rate for all employees will be calculated by dividing the weekly rate by 38, then rounded to the nearest cent.

14.3 National training wage

(a) Schedule E to the Miscellaneous Award 2010 sets out minimum wage rates and conditions for employees undertaking traineeships.

(b) This award incorporates the terms of Schedule E to the Miscellaneous Award 2010 as at 1 July 2019. Provided that any reference to “this award” in Schedule E to the Miscellaneous Award 2010 is to be read as referring to the Supported Employment Services Award 2010 and not the Miscellaneous Award 2010.

14.4 Wage assessment—employees with a disability

(a) An employee with a disability may be paid such percentage of the rate of pay of the relevant grade in clause 14.2 as assessed under the Supported Wage System in accordance with Schedule D.

(b) No decrease—regression of disability

14.5 Higher duties

Employees will be paid at a higher grade if carrying out the duties of a higher grade for two or more hours in any shift. If an employee is carrying out the duties of a higher grade for less than two hours in any shift they will be paid at the higher grade for the time so worked. This clause will not apply whilst an employee is carrying out work in a higher grade for training purposes only.

3. Delete clause 19.5 and insert the following:

19.5 Employees with disabilities

Where an employee with a disability is being paid less than $450 per month in accordance with clause 14.4, contributions for such employees will be either 9.5% of their ordinary time earnings or $15.00 per week whichever is the greater.

4. Delete Schedule B and insert the following:

Schedule B—Classifications

B.1 Explanation of Classification Structure

B.1.1 Grades A and B of the classification structure in this Schedule apply to any employee with a disability:

(a) who meets the impairment criteria for receipt of a disability support pension; and

(b) for whom an employer has created a position consisting of duties and a level of supervision tailored or adjusted for the circumstances of the employee’s disability that does not fall into Grades 1-7 above.

B.1.2 Grades 1-7 apply to employees with or without a disability who undertake the duties and exercise the level of skill and responsibility specified in the classification descriptors.

B.2 Grade A

Employees at this grade will perform a simple task or tasks consisting of up to three sequential actions under direct supervision and constant monitoring.

B.3 Grade B

Employees at this grade will perform a simple tasks or tasks consisting of more than three sequential actions, which may involve the use of mechanical or electric equipment or tools, under direct supervision with regular monitoring.

B.4 Grade 1

Employees at this grade will undertake on the job induction and/or training to perform work in Grade 2 or above for a period not exceeding 3 months.

B.5 Grade 2

Employees at this grade will perform a basic task or tasks in accordance with defined procedures under direct supervision. Such employees will understand and undertake basic quality control/assurance procedures including the ability to recognise basic quality deviations/faults. This may include the performance of work included in the following awards classifications:

• Food, Beverage and Tobacco Manufacturing Award 2010: Level 2

• Gardening and Landscaping Services Award 2010: Level 1

• Manufacturing and Associated Industries and Occupations Award 2010: Level C13

• Textile, Clothing, Footwear and Associated Industries Award 2010: Skill Level 1

B.6 Grade 3

Employees at this grade will perform work above the beyond the skill of an employee at Grade 2 and to their level of training. Such employees will perform a more complex task or tasks than at Grade 2 in accordance with defined procedures under routine supervision. This may include the performance of work included in the following awards classifications:

• Dry Cleaning and Laundry Industry Award 2010: Laundry employee level 2

• Food, Beverage and Tobacco Manufacturing Award 2010: Level 3

• Gardening and Landscaping Services Award 2010: Level 2

• Manufacturing and Associated Industries and Occupations Award 2010: Level C12

• Storage Services and Wholesale Award 2010: Storeworker grade 1

• Textile, Clothing, Footwear and Associated Industries Award 2010: Skill Level 2

• Waste Management Award 2010: Level 2

B.7 Grade 4

Employees at this grade will perform work above the beyond the skill of an employee at Grade 3 and below and to their level of training. Such employees will hold a qualification at or equivalent to AQF II or above. Employees at this grade will:

• work independently from complex instructions and procedures; and

• assist in the provision of on the job training for other employees; and

• co-ordinate work in a team environment or work individually under general supervision; and

• be responsible for ensuring the quality of their own work.

This may include the performance of work included in the following award classifications:

• Dry Cleaning and Laundry Industry Award 2010: Laundry employee level 3

• Food, Beverage and Tobacco Manufacturing Award 2010, Level 4

• Gardening and Landscaping Services Award 2010, Level 3

• Manufacturing and Associated Industries and Occupations Award 2010, Level C11

• Storage Services and Wholesale Award 2010, Storeworker grade 2

• Textile, Clothing, Footwear and Associated Industries Award 2010, Skill Level 3

• Waste Management Award 2010, Level 3

B.8 Grade 5

Employees at this grade will perform work above the beyond the skill of an employee at Grade 4 and below and to their level of training. Such employees will hold a trade certificate or equivalent qualification. Employees at this grade will perform work primarily involving the skills of their trade and may also perform work that is incidental to that work. This may include the performance of work included in the following awards classifications:

• Dry Cleaning and Laundry Industry Award 2010: Laundry Employee Level 4

• Food, Beverage and Tobacco Manufacturing Award 2010: Level 5

• Gardening and Landscaping Services Award 2010: Level 4

• Manufacturing and Associated Industries and Occupations Award 2010: Level C10

• Storage Services and Wholesale Award 2010: Storeworker grade 4

• Textile, Clothing, Footwear and Associated Industries Award 2010: Skill Level 4

• Waste Management Award 2010: Levels 4, 5 and 6

B.9 Grade 6

This grade is equivalent to Level C7 of the Manufacturing and Associated Industries and Occupations Award 2010. Employees at this grade will perform work above the beyond the skill of an employee at Grade 5 and below and to their level of training. Such employees will hold a qualification at or equivalent to AQF IV or above. Such employees will perform the work described below:

• assess the ability of an employee with disability to carry out specific work tasks; or

• design, develop and provide individual instruction or training for an employee with a disability; or

• undertake specialist functions in the workplace such as procurement or marketing; or

• supervise employees in a section of the workplace.

B.10 Grade 7

Employees at this grade will hold a qualification at or equivalent to AQF IV or above, of which one third of the competencies are related to the supervision or training of employees. Employees at this grade will perform work above and beyond the skill of an employee at Grade 6 and below and to their level of training. Such employees will be:

• co-ordinating and supervising employees; or

• conducting on the job training; and

• capable of operating all of the equipment or tools to be used by employees that they are supervising or training.

5. Delete Schedule D and insert the following:

Schedule D—Supported Wage System

D.1 This schedule defines the conditions which will apply to an employee who meets the eligibility criteria in clause D.3 and who is the subject of a wage assessment using the Supported Wage System under clause 14.4(a).

D.2 In this schedule:

disability support pension means the Commonwealth pension scheme to provide income security for persons with a disability as provided under the Social Security Act 1991, as amended from time to time, or any successor to that scheme

relevant minimum wage means the minimum wage prescribed in this award for the class of work for which an employee is engaged

supported wage system (SWS) means the Commonwealth Government system to promote employment for people who cannot work at full award wages because of a disability, as documented in the Supported Wage System Handbook. The Handbook is available from the following website: wage assessment agreement means the document in the form required by the Department of Social Services that records the employee’s productive capacity and agreed wage rate

workplace data means data collected by an employer with respect to an employee’s productive capacity in accordance with the Supported Wage System Handbook

D.3 Eligibility criteria

D.3.1 Employees covered by this schedule will be those who are unable to perform at the required productive capacity because of the effects of a disabilityand who meet the impairment criteria for receipt of a disability support pension.

D.4 Supported wage rates

D.4.1 Employees to whom this schedule applies will be paid the higher of the following amounts:

(a) a percentage of the relevant minimum hourly rate of pay equal to the assessed productive capacity of the employee determined in accordance with clause D.5 rounded to the nearest whole percentage; and

(b) $3.00 per hour.

D.4.2 For the avoidance of doubt, there is no minimum amount payable to an employee per week.

D.5 Assessment of capacity

D.5.2 The productivity benchmark(s) used for the conduct of an SWS assessment must:

(a) take into account the major task(s) performed by the employee; and

(b) be independently verified by an SWS assessor as being valid and appropriate.

D.5.3 All assessments made under this schedule must be documented in an SWS wage assessment agreement, and retained by the employer as a time and wages record in accordance with the Act.

D.5.4 The approved assessor will assess the productive capacity of the employee having regard to:

(a) where an employer has collected workplace data with respect to an employee:

(i) the workplace data—50% weighting; and

(ii) the data collected by the approved assessor in accordance with the Supported Wage System—50% weighting;

(b) otherwise—the data collected by the approved assessor in accordance with the Supported Wage System.

D.5.5 Where, in undertaking an assessment in accordance with clause D.5.3(a), there is a disparity of greater than 20% between the overall productivity percentage calculated from the workplace data and the overall productivity percentage calculated from the data collected by the approved assessor, the employee, employer and approved assessor may agree to collect additional data. The additional data should be collected as soon as practicable and added to the existing data with respect to the employee for the purpose of undertaking the assessment in clause D.5.3(a).

D.5.6 In addition to an employee’s general right to access clause 9—Dispute resolution in relation to the process or outcome of a wage assessment, an employee or an employer may:

(a) raise a dispute in accordance with the dispute processes outlined in the Supported Wage System Handbook; and

D.6 Lodgment of SWS wage assessment agreement

D.6.2 All SWS wage assessment agreements must be agreed and signed by the employee and employer parties to the assessment. Where a union which has an interest in the award is not a party to the assessment, the assessment will be referred by the Fair Work Commission to the union by email to the union’s nominated email address and the agreement will take effect unless an objection is notified to the Fair Work Commission within 10 working days.

D.7 Review of assessment

For the purpose of clause 14.4(a):

(a) the wage assessment of each employee will be reviewed after 12 months’ service with the employer since the initial assessment, and the rate of pay adjusted accordingly;

(b) subsequently, the wage assessment of each employee will be reviewed within a period not exceeding three years' service with the employer since the previous assessment, and the rate of pay adjusted accordingly; and

(c) a wage assessment may be reviewed at the initiative of either the employee or the employer, once every six months and not more than four times every three years, and the rate of pay adjusted accordingly. Unless an employer and an employee agreed prior to 1 May 2017 to undertake reviews in other circumstances, such a review may only be initiated in circumstances where an employee has changed jobs or the processes involved in the work undertaken by the employee have changed.

D.8 Other terms and conditions of employment

D.9 Workplace adjustment

D.10 Trial period

D.10.1 In order for an adequate assessment of the employee’s capacity to be made, an employer will employ a person under the provisions of this schedule for a trial period of at least 13 weeks, but no longer than 26 weeks.

D.10.2 During that trial period the assessment of capacity will be undertaken and the percentage of the relevant minimum hourly rate of pay for a continuing employment relationship will be determined in accordance with clause D.4 and clause D.5.

D.10.3 The employee must be paid at least $3.50 per hour for each hour worked during the trial period.

D.10.3 Once an assessment of capacity has been undertaken pursuant to clause D.5 and the employee's rate of pay is determined in accordance with clause D.4, the employer will apply any higher rate of pay determined in accordance with clause D.4.1 with effect from thirteen weeks after the commencement of the trial period.

D.10.4 Work trials should include induction or training as appropriate to the job being trialled.

6. Variation 1 above shall take effect on 1 March 2020. Variation 3 shall take effect from the beginning of the first pay period commencing on or after 1 October 2020. Variations 2, 4 and 5 above shall take effect on 1 January 2022.

1 [2018] FWCFB 4984 at [52]

2 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, 253 FCR 368, 272 IR 88 at [38]

3 Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480, 205 FCR 227, 219 IR 382 at [35]

4 Penalty Rates Decision [2017] FWCFB 1001, 265 IR 1 at [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, 253 FCR 368, 272 IR 88 at [41]-[44]

5 Re Annual Wage Review 2017-2018 [2018] FWCFB 3500, 279 IR 215 at [21]-[24]

6 Edwards v Giudice [1999] FCA 1836, 94 FCR 561 at [5]; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 at [81]-[84]; National Retail Association v Fair Work Commission [2014] FCAFC 118, 225 FCR 154, 244 IR 461 at [56]

7 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, 253 FCR 368, 272 IR 88 at [33]

8 National Retail Association v Fair Work Commission [2014] FCAFC 118, 225 FCR 154 at [105]-[106]

9 Ibid at [109]-[110]; albeit the Court was considering a different statutory context, this observation is applicable to the Commission’s task in the Review

10 Ibid at [28]-[29]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, 253 FCR 368, 272 IR 88 at [49]

11 Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, 253 FCR 368, 272 IR 88 at [48]

12 CFMEU v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123, 252 FCR 337 at [23]; cited with approval in Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, 253 FCR 368, 272 IR 88 at [45]

13 See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) [2012] FCA 480, 205 FCR 227, 219 IR 382

14 Ibid at [46]

15 PR529171

16 [2009] AIRCFB 345

17 [2012] FCAFC 192, 208 FCR 1, 298 ALR 410

18 The UWU was at all relevant times during these proceedings until 11 November 2019 named “United Voice”, but we will refer to it by its current name in this decision.

19 PR568011

20 [2015] FWC 7134

21 [2017] FWCFB 5073

22 An error in the paragraph numbering in the AEDLC’s draft determination has been corrected.

23 ABI's proposed Work Value Classification Structure

24 [2018] FWCFB 2196

25 [2018] FWCFB 5712

26 Witness Statement – undated, Exhibit 15; Further Witness Statement – 21 October 2017, Exhibit 16; Further Witness Statement – 14 December 2017, Exhibit 17; Oral Evidence – Transcript 9 February 2018, PNs 2088-2594

27 Witness Statement – 21 November 2017, Exhibit 9; Oral Evidence – Transcript 8 February 2018, PNs 1336-1936

28 Witness Statement – 2 February 2018, Exhibit 48;

29 Witness Statement – 2 February 2018, Exhibit 49

30 Witness Statement – 21 November 2017, Exhibit 13; Further Witness Statement – 14 December 2017, Exhibit 14; Oral Evidence – Transcript 9 February 2018, PNs 1954-2068

31 Witness Statement – 21 September 2017, Exhibit 22; Further Witness Statement – 14 December 2017, Exhibit 23; Oral Evidence – Transcript 12 February 2018, PNs 2813-3027

32 Witness Statement – 28 September 2017, Exhibit 93; Witness Statement – 25 September 2017, Exhibit 94; Witness Statement – 25 September 2017, Exhibit 95; Witness Statement – 25 September 2017, Exhibit 96; Witness Statement – 28 September 2017, Exhibit 97; Witness Statement – 9 November 2017, Exhibit 83; Witness Statement – 14 November 2017, Exhibit 117; Witness Statement – 13 November 2017, Exhibit 118; Witness Statement – 13 November 2017, Exhibit 119; Witness Statement – 13 November 2017, Exhibit 120; Witness Statement – 13 November 2017, Exhibit 121; Witness Statement – 14 November 2017, Exhibit 122; Witness Statement – 20 November 2017, Exhibit 123

33 Witness Statement – 25 September 2017, Exhibit 68; Witness Statement – 28 September 2017, Exhibit 69; Witness Statement – 25 September 2017, Exhibit 70; Witness Statement – 10 November 2017, Exhibit 73; Witness Statement – 9 November 2017, Exhibit 74; Witness Statement – 10 November 2017, Exhibit 75; Witness Statement – 9 November 2017, Exhibit 76; Witness Statement – 9 November 2017, Exhibit 77; Witness Statement – 14 November 2017, Exhibit 78; Witness Statement – 9 November 2017, Exhibit 79; Witness Statement – 13 November 2017, Exhibit 80; Witness Statement – 9 November 2017, Exhibit 81; Witness Statement – 9 November 2017, Exhibit 82

34 Witness Statement – 25 September 2017, Exhibit 28; Further Witness Statement – 25 October 2017, Exhibit 29; Further Witness Statement – 12 December 2017, Exhibit 30; Oral Evidence – Transcript 12 February 2018, PNs 3221-3343

35 Witness Statement – 21 September 2017, Exhibit 4; Further Witness Statement – 15 November 2017, Exhibit 5; Further Witness Statement – 8 December 2017. Exhibit 6; Oral Evidence – Transcript, PNs 653-1325

36 Witness Statement – 25 September 2017, Exhibit 50

37 Witness Statement – 8 November 2017, Exhibit 59

39 Witness Statement – 21 September 2017, Exhibit 20; Further Witness Statement – 14 December 2017, Exhibit 21; Oral Evidence – Transcript 12 February 2018, PNs 2679-2809

40 Transcript 12 February 2018, PN2729

41 Transcript 12 February 2018. PN2730

42 Witness Statement – 3 November 2017, Exhibit 101; Witness Statement – 8 November 2017, Exhibit 102; Witness Statement – 2 November 2017, Exhibit 103; Witness Statement – 8 November 2017, Exhibit 104; Witness Statement – 8 November 2017, Exhibit 105; Witness Statement – 6 November 2017, Exhibit 106

43 Witness Statement – 22 September 2017, Exhibit 31; Further Witness Statement – 21 November 2017, Exhibit 32; Further Witness Statement – 24 December 2017, Exhibit 33; Oral Evidence – Transcript 12 February 2018, PNs 3350-3667

44 Further Witness Statement – 21 November 2017, Exhibit 32 at [14]

45 Witness Statement – 22 September 2017, Exhibit 89; Witness Statement – 22 September 2017, Exhibit 90; Witness Statement – 22 September 2017, Exhibit 91; Witness Statement – 25 September 2017, Exhibit 92; Witness Statement – 25 September 2017, Exhibit 71; Witness Statement – 25 September 2017, Exhibit 72; Witness Statement – 14 November 2017, Exhibit 84; Witness Statement – 13 November 2017, Exhibit 115; Witness Statement – 13 November 2017, Exhibit 116

46 Witness Statement – 20 November 2017, Exhibit 52; Further Witness Statement – 14 December 2017, Exhibit 53

47 Witness Statement – 25 October 2017, Exhibit 25; Oral Evidence – Transcript 12 February 2018, PNs 3045-3208

48 Witness Statement – 21 November 2017, Exhibit 60

49 Witness Statement – 9 November 2017, Exhibit 57; Oral Evidence – Transcript

50 Witness Statement – 25 October 2017, Exhibit 42; Oral Evidence – Transcript 14 February 2017, PNs 4300-4354

51 Ibid at [2]

52 Witness Statement – 1 November 2017, Exhibit 54

53 Witness Statement – 6 November 2017, Exhibit 56

54 Witness Statement – 25 September 2017, Exhibit 51

55 Witness Statement – 25 October 2017, Exhibit 61

56 Witness Statement – 25 September 2017, Exhibit 63; Further Witness Statement – 14 December 2017, Exhibit 64

57 Witness Statement – 21 November 2017, Exhibit 19; Oral Evidence – Transcript 9 February 2018, PNs 2606-2665

58 Witness Statement – 21 November 2017, Exhibit 39

59 Witness statement – 21 November 2017, Exhibit 39 at [72]

60 Witness Statement – 25 October 2017, Exhibit 58

61 Witness Statement – 25 October 2017, Exhibit 55

62 Witness Statement – 21 November 2017, Exhibit 44; Oral Evidence – Transcript 14 February 2018, PNs 4362-4642

63 Witness Statement – 21 November 2017, Exhibit 41; Oral Evidence – Transcript 13 February, PNs 4204-4270

64 Witness Statement – 21 November 2017

65 Witness Statement – 2 February 2018, Exhibit 40; Oral Evidence – Transcript 13 February 2018, PNs 4038-4192

66 Witness Statement – undated, Exhibit 183

67 Witness Statement – 20 November 2017, Exhibit 62

68 Witness Statement – 21 September 2017, Exhibit 35; Further Witness Statement – 21 November 2017, Exhibit 36; Further Witness Statement – 14 December 2017, Exhibit 37; Oral Evidence – Transcript 12 February 2018, PNs 3677-3884

69 Witness Statement – 7 November 2017, Exhibit 107; Witness Statement – 8 November 2017, Exhibit 85; Witness Statement – 6 November 2017, Exhibit 108; Witness Statement – 6 November 2017, Exhibit 86; Witness Statement – 6 November 2017, Exhibit 110; Witness Statement – 3 November 2017, Exhibit 110; Witness Statement – 6 November 2017, Exhibit 87; Witness Statement – 3 November 2017, Exhibit 111; Witness Statement – 6 November 2017, Exhibit 112; Witness Statement – 6 November 2017, Exhibit 113; Witness Statement – 6 November 2017, Exhibit 114

70 Letter to the Commission – 20 November 2017, Exhibit 45

71 Witness Statement – 25 September 2017, Exhibit 181

72 Dunoon, D. (1992). Development of a National Assessment Framework for a Supportive Wage System. Report to The Wages Subcommittee of the Disability Task Force. Department of Industrial Relations. AGPS, Canberra.

73 [1994] AIRC 1635, Print L5723

74 Print K0325

75 Print K6264

76 PR915202

77 PR961607, 19 August 2005

78 [2009] AIRCFB 945 at [90]-[94]

79 [2011] FCA 1066, 283 ALR 800

80 Ibid at [90],[109]

81 Ibid at [110]

82 Ibid at [241]-[244]

83 Ibid at [139]-[135]

84 Transcript 8 February 2018, PNs 1553-1565

85 Transcript 9 February 2018, PN 2377-2379

86 Transcript 8 February 2018, PNs 1768-1785

87 Transcript 12 February 2018, PNs 3259-3281

88 [2009] AIRCFB 945

4 yearly review of modern awards—Supported Employment Services Award 2010

[2019] FWCFB 8179

3 DECEMBER 2019

DECISION

Introduction and background

Health Services Union

ATTACHMENT A

9A. Rights at Work for Supported Employees

Key Legal Topics

Areas of Law

Labour Law

Legal Concepts

Review of Awards

Minimum Wage

Award Conditions