4 yearly review of modern awards – Supported Employment Services Award 2020 - [2022] FWCFB 203

[2022] FWCFB 203

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 2020

(AM2014/286)

VICE PRESIDENT HATCHER
deputy president saunders
commissioner cambridge

SYDNEY, 10 NOVEMBER 2022

4 yearly review of modern awards – Supported Employment Services Award 2020.

CONTENTS

Decision section	Paragraph
Introduction and background	[1]
The ARTD Trial and Report	[18]
Outline of the parties’ positions	[28]
ABI and NDS	[28]
Our Voice	[30]
AEDLC, ACTU and UWU	[31]
Evidence	[33]
ABI and NDS	[34]
Our Voice	[61]
AEDLC	[62]
AEDLC, ACTU and UWU	[63]
Agreed Facts	[105]
Submissions	[106]
Jurisdictional submissions	[106]
Submissions on the merits	[134]
Consideration	[181]
Jurisdictional issues raised by the AEDLC	[181]
Substantive issues	[220]
Other matters	[272]
Next steps	[277]
Attachments	Page
Attachment A – Proposed new wages structure for the purposes of the ARTD Trial contained in the March 2020 Decision	103

ABBREVIATIONS TABLE

Abbreviation	Definition
ABI	Australian Business Industrial and the NSW Business Chamber
ABI response submissions	Submissions filed by ABI and NDS in reply to the AEDLC’s 13 May 2022 jurisdictional submissions on 8 July 2022
ABI Structure	Alternative classification structure developed by ABI
ABI Trial	Parallel trial of the proposed new wages structure, organised by ABI and performed by select ADEs that are members of ABI
Activ	Activ Foundation
ACTU	Australian Council of Trade Unions
ADE	Australian Disability Enterprise
AEDLC	AED Legal Centre
AEDLC March outline	Outline of jurisdictional objections filed by the AEDLC on 16 March 2022
AEDLC May submissions	Submissions filed by the AEDLC on 13 May 2022 outlining its jurisdictional objections
AEDLC July reply submissions	Submissions filed by the AEDLC on 20 July 2022 in reply to the ABI response submissions
AEDLC September reply submissions	Submissions filed by the AEDLC on 28 September 2022 in reply to the DSS response submissions
AHRC Act	Australian Human Rights Commission Act 1986 (Cth)
AIRC	Australian Industrial Relations Commission
ARTD Trial	Trial of proposed new wages structure, commissioned by Department of Social Services and conducted by ARTD Consultants
BGA	Balmoral Group Australia, the consultants that conducted the financial analysis associated with the ARTD Trial
BSWAT	Business Services Wage Assessment Tool
CRPD	United Nations Convention on the Rights of Persons with Disabilities
DD Act	Disability Discrimination Act 1992 (Cth)
DEA	Disability Expertise Australasia
December 2019 decision	[2019] FWCFB 8179
Disability Royal Commission	Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability
DS Act	Disability Services Act 1986 (Cth)
DSP	Disability Support Pension
DSS	Commonwealth Department of Social Services
DSS response submissions	Submissions filed by the DSS in response to the AEDLC May submissions on 9 September 2022
FW Act	Fair Work Act 2009 (Cth)
Greenacres	Greenacres Disability Services
HSU	Health Services Union
January 2020 statement	[2020] FWCFB 343
Knoxbrooke	Knoxbrooke Incorporated
March 2020 decision	[2020] FWCFB 1704
Modified SWS	Proposed changes to Schedule D of the SES Award pursuant to the preferred approach, set out at paragraph [374] of the December 2019 decision
NPA	National Panel of Assessors
NDIS	National Disability Insurance Scheme
NDS	National Disability Services
Nojin	Nojin v Commonwealth of Australia [2012] FCAFC 192; 208 FCR 1; 298 ALR 410
NMW	National minimum wage
Our Voice	Our Voice Australia
Preferred approach	The approach set out at paragraphs [367]‑[380] of the December 2019 decision, including the proposed new wages structure and the modified SWS
Proposed new wages structure	Structure described at paragraphs [372] and [373] of the December 2019 decision
Report	ARTD’s Fair Work Commission New Wage Assessment Structure Trial Evaluation – Department of Social Services – Final Report, 24 November 2021
SAGE	SA Group Enterprises Incorporated
SES Award	Supported Employment Services Award 2020
SS Act	Social Security Act 1991 (Cth)
SWS	Supported Wage System
UWU	United Workers’ Union

INTRODUCTION AND BACKGROUND

This decision is intended to finalise, subject to some issues concerning transitional provisions and other technical matters, the 4 yearly review in respect of the provisions of the Supported Employment Services Award 2020 (SES Award) concerning minimum wage rates for employees with a disability.[1]

The December 2019 decision

On 3 December 2019, a differently-constituted Full Bench issued a decision[2] in this matter (December 2019 decision) which dealt with claims seeking variations to the wages provisions of the SES Award.[3] The December 2019 decision contains a detailed summary of the background to this matter, the parties’ positions and evidence received prior to the last substantive hearings in 2018, as well as historical context that we do not propose to repeat here. The Full Bench, after reviewing the extensive evidence before it, made four findings about the supported employment sector covered by the SES Award which were, in summary, as follows:

(1)The employment opportunities which the supported employment sector provides to disabled persons is of immense value to Australian society. Disabled persons place great weight upon the companionship, stimulation, independence, learning opportunities and the sense of dignity, achievement and self-worth which supported employment provides them. For the carers and family members of disabled persons employed in Australian Disability Enterprises (ADEs), the support and respite which employment in ADEs provides them, and the positive personal effects such employment has on the disabled person, is regarded as being of huge worth. Additionally, ADEs are not just employers of disabled persons in the normal sense, but also provide a range of additional support services which an ordinary employer does not, including training in life-skills as well as vocational training, counselling and behavioural support, and transport assistance.[4]

(2)The nature of employment is markedly different in the supported employment sector than in the general labour market. The normal state of affairs is that employers will establish a job for the purpose of the performance of certain work functions which it requires to be performed in order to carry on its business, and will then hire a person whom it considers capable of performing those functions to the required standard to fill that job. ADEs operate in a different paradigm. The purpose of their existence is to provide employment opportunities for disabled persons who have restricted work capacity, typically on a not-for-profit basis. Accordingly, they seek only those business opportunities which will generate jobs capable of being filled by disabled persons, which necessarily limits the types of commercial activity they can engage in. Further, they do not arrange their workforces simply on the basis of a job structure that will allow the necessary work to be performed in the most productive and efficient fashion, and then recruit persons to fill those jobs. Rather, they create or tailor jobs in such a way that they are capable of being performed by a particular person with a particular disability or by persons with a class of disability. This may mean, for example, that a set of work functions which is capable of being performed as a single job by a single person not relevantly affected by disability is broken up into a number of discrete tasks, each of which will be made into a separate job that aligns with the work capacities of a particular disabled person.[5]

(3)Arising from the low-productivity nature of ADE operations, they cannot financially be sustained by commercial revenue alone and are dependent to a large degree upon government funding. This was previously done using a case-based model, but funding is transitioning to the National Disability Insurance Scheme (NDIS) model. Having regard to the revenue sources of ADEs, it is apparent that the capacity of ADEs to respond to any significant change in minimum wages levels is far more restricted than for ordinary businesses. They have no capacity to increase the substantial proportion of their revenue which comes from government funding to pay the increase (unless there is an independent decision of government to adjust its funding levels accordingly). An ADE’s capacity to increase the prices it charges to its commercial clients is likely to be limited due to the low-productivity nature of the goods and services ADEs provide. Nor can ADEs reduce employment and improve productivity without vitiating the very purpose of their existence. This means that the exercise of considerable caution is necessary in considering changes to the wage structure in the SES Award lest ADEs be rendered financially unviable.[6]

(4)Although the evidence demonstrated that supported employees under the SES Award earn, on average, about $7.00 per hour, consideration of the appropriate minimum wage setting mechanism for disabled employees in ADEs must necessarily take into account the fact that such employees are invariably also in receipt of the disability support pension (DSP). For a single person 22 or more years of age, the basic fortnightly rate of the DSP (including the pension supplement and the energy supplement) is currently $933.40.[7] Receipt of the DSP is subject to an income test by which, for every dollar a recipient earns over $174.00 per fortnight, the DSP is reduced by 50 cents. This means, as an example, that for a disabled employee currently working only 15 hours per week at an assessed rate of $5.00 per hour, a pay increase of a dollar an hour would result in a reduction of the fortnightly pension payment of $15.00. Thus, the benefit of the pay increase is significantly mitigated, although not entirely diminished, as a result of the tapering of the DSP payment. An employee in receipt of gross employment income of about $461.20 per week will receive, together with their income-tested DSP payment, a gross weekly income equivalent to the national minimum wage (NMW). The income needs of disabled employees in ADEs must be considered in this context.[8]

The Full Bench engaged in detailed analysis of the history of wage fixation for employees with disability, and stated the following conclusions:

“(1) Independent reports concerning the appropriate method of wage fixation for disabled persons who would, because of their level of disability, be unable to obtain employment in the labour market at full award rates, have consistently recommended that their wage rate be assessed by use of a hybrid mechanism which takes into account the value of the work they perform and the employee’s level of productivity in performing that work. Views consistent with this approach have been stated in the Ronalds Report, the Dunoon/Green Report, the First KPMG Report, the First HOI Report and the Second HOI Report.

(2) The SWS was not designed or intended for use in the ADE sector, and its use in that sector has only even been envisaged as being subject to major adaptive change or as one of a number of available wage assessment tools. However, as a measure of productivity simpliciter, it has been recognised (particularly in the Second KPMG Report) as fair and objective.

(3) The Nojin litigation demonstrates that the work value element of the wage assessment of a disabled employee in an ADE environment should not proceed on the basis of notional core or industry competencies which have no substantive relationship to the classification descriptors for minimum pay rates in the applicable award or to the work actually performed by the employee. An assessment carried out on this basis will be likely to be inherently disadvantageous to and thereby discriminatory towards intellectually disabled employees.”

In relation to the AED Legal Centre’s (AEDLC’s) claim that the Supported Wage System (SWS) should become the sole wage assessment tool under the SES Award, the Full Bench accepted that the existence of a number of wage assessment tools in clause 14.4 of the 2010 version of the SES Award does not achieve the modern awards objective in s 134(1) or the minimum wages objective in s 284(1) of the Fair Work Act 2009 (Cth) (FW Act). However, the Full Bench did not accept the AEDLC’s case that the SWS should be the sole wage assessment tool, operating in conjunction with the existing classification structure, finding that the SWS was not by itself an effective wage-setting mechanism for employees with disability in ADEs and suffered from a number of other difficulties.[9] The Full Bench also did not accept Australian Business Industrial and the NSW Business Chamber’s (ABI’s) proposal for a new work value classification structure for employees with disability to sit below the current classification structure, finding that the proposal was not properly based on work value and lacked objectivity, transparency, simplicity and enforceability.[10]

The Full Bench then set out what it described as the “preferred approach”. The Full Bench said that the wage fixation mechanism in the SES Award for employees with disability must remunerate all workers in a manner consistent with the value of the work they perform, and not price them out of a reasonable prospect of employment.[11] At the same time, the Full Bench expressed the view that any wage fixation mechanism must not cause commercial disruption to ADEs by suddenly increasing employment costs.[12] The Full Bench considered that these objectives should be achieved by establishing a new hybrid wages structure (the proposed new wages structure) which took into account the value of the work performed by the employee and the employee’s productivity level where this is affected by disability.[13] In respect of employees with disability for whom jobs are created or tailored for the purpose of providing work which is within their capabilities, the Full Bench concluded that new classifications with pay rates below the NMW should be established.[14] In addition, the descriptors for the existing classification structure would be modified so that they are expressed in terms of generic indicators in work value.[15] In respect of the assessment of employee productivity, the Full Bench determined that the SWS, modified in certain specified respects, was to be the only assessment tool (modified SWS).[16]

As to this new hybrid wage structure, the Full Bench said:

“[372]…

(1)There should be two new classifications (Grades A and B) below the current Grade 1 in the SES Award. The classifications should be applicable only where the employer has created a position consisting of tasks and a level of supervision that has been tailored or adjusted to meet the circumstances of the employee’s disability and which does not fall into Grades 1-7 of the classification structure. We emphasise here that we are not talking about the situation where an employer simply makes a reasonable adjustment to allow a disabled person to perform a pre-existing vacant position. Additionally, the employee must meet the criteria for eligibility to receive the DSP.

(2)Grade A shall provisionally have a rate of $7.00 per hour, and shall apply to employees who perform one or more simple tasks consisting of up to three sequential actions under direct supervision and constant monitoring.

(3)Grade B shall provisionally have a rate of $14.00 per hour, and shall apply to employees who perform one or more simple tasks consisting of more than three sequential actions, which may involve the use of mechanical or electrical equipment or tools, under direct supervision with regular monitoring.

[373] The classification descriptors for the existing Grades 1-7 will be modified so that they are expressed in terms of generic indicators of work value. We consider that the current lists of indicative tasks should be removed to make it clear that the mere performance of one of those tasks in circumstances in relation to job which has been established or tailored to align with a disabled employee’s level of capacity is not sufficient or intended to fall within any of these grades. Instead, alignments with other award classifications which provide for the performance of work commonly performed in the ADE sector will be included to provide proper guidance as to the work intended to be comprehended at each classification level. Grades A-B and 1-7 will, taken together, provide a classification structure which accommodates in a comprehensive way the jobs which the evidence shows actually exist in the ADE sector and properly reflects their work value.

[374] We consider that disabled employees classified in any grade (Grades A and B or 1-7) may be paid a percentage of the specified rate for the classification based upon an assessment of their productivity as compared to that of a relevantly non-disabled person. The only wage assessment tool which may be used for that purpose will be the SWS, subject to the following modifications:

(1)Where an employee performs more than one major task in their job, the SWS assessment must measure a representative sample of the tasks performed and weight them appropriately.

(2)The SWS assessor must independently determine that benchmark to be used for the assessment is valid and appropriate.

(3)Where an employer collects workplace data as to the employee’s productivity levels, that data must be assigned a 50% weighting in the overall assessment, regardless of the degree of disparity with the result of the SWS assessor’s assessment.

(4)There will be an absolute minimum payment of $3.50 per hour. This amount will also serve as the minimum rate payable to a disabled employee during an initial assessment period in their employment.

[375] Finally, we consider that no existing ADE employee should suffer a reduction in remuneration as a result of the introduction of the new wages structure which we propose.”

The Full Bench considered that modifying the SWS in this way at the same time as introducing a new classification structure would utilise the benefits of the SWS and resolve its weaknesses. It was also noted that Commonwealth support and funding would be required in order to give effect to the December 2019 decision.[17] A draft determination giving effect to this position was published at Attachment A to the December 2019 decision.[18]

The Full Bench noted in the December 2019 decision that it would be necessary to undertake a number of steps before any determination could take effect, and that the parties should be given an opportunity to make further submissions about the draft determination published with the December 2019 decision addressing the proposed rates of pay and classification descriptors as well as any other relevant issues, and in the case of the Commonwealth, whether it could provide financial support.[19] The following indicative timetable was set out in the December 2019 decision:

“[380] … 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 [2020] - 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.”

Events following the December 2019 decision

On 21 January 2020 the Full Bench issued a statement[20] (January 2020 statement) setting out a revised timetable for implementing the December 2019 decision and identifying some issues which had been raised by parties concerning the proposed new classification structure. The January 2020 statement also identified an issue concerning Commonwealth funding of the trial of the proposed new classification structure as follows:

“[8] The effective implementation of the December decision will require Commonwealth financial support in at least the two following areas:

(1) the conduct of the envisaged trial (including preparation of a report concerning the trial’s outcomes); and

(2) the engagement of greater numbers of SWS inspectors when the entire supported employment sector ultimately moves to the use of the new SWS methodology.

[9] The Commonwealth Government was not in a position at the conference to make any commitments in respect of funding beyond noting that it had previously announced (well before the December decision) that funding of $67 million would be put towards the transition to the new wages structure. The Commonwealth Government indicated that it may be able to provide further advice as to its position in February 2020.”

After the receipt of further written submissions and the conduct of further hearings on 10 February and 2 March 2020, on 30 March 2020 the Full Bench issued a decision[21] (March 2020 decision) which finalised the form of the classifications in the proposed new classification structure for the purpose of the trial that was to be conducted. The classification structure that was to be the subject of the trial was set out in an attachment to the March 2020 decision, and is reproduced in Attachment A to this decision. The Full Bench said in relation to this:

“[2]…We make it clear that in doing so, we are not stating any final view about the new wages structure which will ultimately be placed into the SES Award, nor are we varying the SES Award at this time.”

The Full Bench also dealt with a submission filed by the AEDLC on 17 March 2020 as follows:

“[3] In a submission filed on 17 March 2020, the AED Legal Centre filed a lengthy submission expressing its opposition (on both jurisdictional and merit grounds) to the SES Award being varied to include any wages structure the same as or similar to that proposed in the principal decision. The premise of that submission is that the SES Award is to be varied to give effect to the new classification structure prior to the commencement of the trial. In that respect, at least, the submission is entirely misconceived. The purpose of the trial is to assist the Commission in determining whether the SES Award should be varied to include the wages structure we indicated we preferred in the principal decision. Participation in the trial is voluntary, and it is not necessary that the SES Award be varied in order to conduct it. As the timetable set out in paragraph [380] of the principal decision, as modified in paragraph [3] of the statement, was intended to make clear, we do not anticipate making any final variation to the wages structure in the SES Award until after the results of the trial are known and interested parties have been afforded a further opportunity to adduce further evidence and make further submissions. The current plan is that the final determination will not be made until 27 November 2020 and will not take effect until 1 January 2022. Accordingly, the matters raised in the AED Legal Centre’s submission do not require consideration at this time.”

On 22 May 2020, the Association for Employees with a Disability, which we understand to be the controlling body of the AEDLC, made an application to the Federal Court of Australia for judicial review of the December 2019 decision and the March 2020 decision. At the completion of the hearing of this application before a Full Court on 18 February 2021, the application was dismissed. The Full Court published its reasons for this decision on 15 March 2021.[22]

On 3 June 2021 the Full Bench (by then reconstituted) issued a statement[23] setting out a new timetable for the trial of the wages structure proposed in the December 2019 decision (ARTD Trial). This was necessary because the trial as timetabled in the January 2020 statement did not proceed due a large proportion of ADEs being closed or winding back their operations because of the COVID-19 pandemic. It had by then been confirmed that the trial would be conducted by ARTD Consultants. The matter was set down for final hearing in December 2021 on the basis that the final report on the ARTD Trial (Report) was expected in October 2021.[24]

The current Full Bench was constituted on 17 October 2021. The December 2021 hearing dates were vacated because the Report had not yet been completed by October 2021, as anticipated. Ultimately, the Report was provided to the Commission on 31 January 2022. The Commission published the Report on its website the same day, together with a statement we issued[25] which confirmed that the provision of the Report made it appropriate to program the matter for further evidence and submissions and make a final determination as to the new wages structure to be inserted into the SES Award.[26] In the statement, we said that the following issues were likely to be significant in light of the outcomes in the Report:[27]

“(1) The clarity and workability of the drafting of the new wages structure set out in the attachment to the 30 March 2020 decision.

(2) The provisional quantum of the minimum wage rates for the proposed new Grade A and Grade B classifications set out in paragraph [372] of the 3 December 2019 decision.

(3) The operative date for the new wages structure.”

We also noted that it would be necessary for us to consider the jurisdictional issues that had previously been raised by the AEDLC in the event that they were still pressed.[28] The matter was listed for directions on 14 February 2022. Following this, directions were issued for the filing of position documents ahead of a further directions hearing on 22 March 2022.[29] The following parties filed position documents:

·Our Voice Australia (Our Voice);[30]

·ABI;[31] and

·the AEDLC, the Health Services Union (HSU), the United Workers’ Union (UWU) and the Australian Council of Trade Unions (ACTU) jointly.[32]

Following the directions hearing on 22 March 2022, further directions were made for the filing of evidence and submissions and the matter was timetabled for final hearing.

The final hearing occurred from 15 to 18 August 2022. Following the hearing, the presiding member issued directions for the filing of further submissions, and further submissions were received pursuant to these directions.

THE ARTD TRIAL AND REPORT

The ARTD Trial consisted of the administration and evaluation of a trial of the proposed new wages structure over a period of three months. The scope of the ARTD Trial was summarised in the Report as:

“… to understand what:

·is needed to ensure consistent application of the new wage assessment structure

·impact the new wage assessment structure will have on the financial viability of ADEs

·impact the new wage assessment structure will have on worker earnings and hours and

·the interaction with the Disability Support Pension (DSP).”[33]

The ARTD Trial was conducted across a randomly selected group of 379 supported (disabled) employees across 28 ADEs and 35 ADE-associated enterprises designed to be representative of ADEs in terms of industry, size, location and the wage tool currently used. Balmoral Group Australia (BGA) conducted an independent financial analysis as part of the ARTD Trial.

A number of key findings from the ARTD Trial were identified in the Report. First, as to the effect of the proposed new classification structure and the application of the modified SWS on wages, the report found that, across the trial sample:[34]

·the average hourly wage outcome (excluding superannuation) was $9.77, and half of the sampled supported employees had an hourly wage outcome between $5.10 and $13.53;

·the average hourly wage increase (excluding superannuation) was $3.26 per hour, and for half of the sampled supported employees, the increase would have been in the range of $0.05 and $5.09;

·without the minimum wage floor, 16% of supported employees would have received less than $3.59 per hour;[35] and

·without the commitment not to reduce current wages (as was specified in the December 2019 decision), 25% of the sampled supported employees would have received a wage lower than their current wage.

In respect of the grading of employees, the Report found that employees in the sample would be graded as follows under the proposed new classification structure:[36]

Grade A:  35%
Grade B:  28%
Grade 1:  2%
Grade 2:  27%
Grade 3:  5%
Grade 4:  2%
Grade 5 and above:     0%

However, the Report noted that there was generally difficulty in understanding the changes to Grades 1-7 and new Grades A and B as outlined in the Wage Grade Assessment Guidance document that was provided to participants in the ARTD Trial. ADEs mentioned being unsure how to interpret the gateway requirements for Grades A and B, thinking that some supported employees fitted into more than one grade or met the conditions of a grade some but not all of the time, or met the conditions of various grades where their duties varied.[37]

The Report found that the application of the modified SWS produced an average overall productivity outcome of 61%, with half of supported employees having a productivity outcome of between 44% and 78%.[38] As to the implementation of the modified SWS, the Report found:

· the extent to which the modified SWS was understood by ADE staff varied, with staff from the five ADEs already using the SWS finding the process clearer than others;[39]

· the majority (more than 85%) of ADE staff, CEO/management representatives and independent assessors agreed or mostly agreed that both the ADE staff and the independent assessor were consistent in the way they applied the modified SWS across supported employees, but were less positive that the modified SWS was equally applicable to all of the major duties and associated tasks of the supported employees in the trial sample; [40]

· the trial data and interviews indicated that not all elements of the modified SWS were implemented consistently by ADEs and assessors; [41]

· independent assessors were more likely than ADE CEO/management representatives and staff to believe the modified SWS produced a reasonably accurate assessment of supported employees’ productivity, but two-thirds of ADE CEO/management representatives and staff agreed or mostly agreed that assessments were reasonably accurate; [42]

· the challenges with consistency and accuracy identified in the trial are also encountered in the current application of the SWS; [43] and

· for nearly half the supported employees in the trial, there were minimal differences between internal and external productivity scores, with no more than a 5% difference between the two, and for 91% of the supported employees, the internal and external productivity assessments were within 20% of each other, meaning under the SWS guidelines that timings do not need to be excluded or new timings taken to try to resolve the differences.[44]

As to the potential effect on the viability and profitability of ADEs of the proposed new classification structure and the modified SWS, the Report stated the following:[45]

· those ADEs participating generally had low levels of profits (based on their recent financial reports);

· most of the turnover of the participating ADEs was used to pay wages, suggesting a limited scope to absorb wage increases, although the wages of supported employees comprised a smaller proportion of turnover than non-supported employee wages;

· the BGA financial analysis estimated that wage increases for the participating ADEs, employing 6,335 supported employees, would be about $35.7 million per year;

· extrapolating this to the 161 ADEs assumed to be operating under the SES Award and their 16,355 supported employees, the wage increases would be $76.1 million annually;

· 10 ADEs were estimated to be at highest financial risk because they had a wage/ turnover ratio higher than 86% and 25 were estimated to be at high risk because they had a wage/ turnover ratio higher than 78%);

· however, these figures had to be considered with caution because assumptions had to be made in relation to the financial data for ADEs not participating in the ARTD Trial, and the outcome might differ for ADEs using different wage assessment tools; and

· the majority of CEO and management representatives involved in the ARTD Trial (more than 90%) expressed concern that a modified SWS would impact their viability, and some foreshadowed they may need to consider steps such as reducing or adjusting supported employee positions, adjusting working hours or closing the ADE, but a few noted they would explore changes to the business such as changes to business streams or contracts, and/or changes to pricing structure.

In relation to the effect of the proposed new classification structure and the SWS on supported employees and their families/carers, the Report stated the following findings:

· most supported employees in the sample said during interviews that they did not understand or appeared not to understand the new wage assessment structure, and others had a limited understanding, but most supported employees likewise did not understand or appeared not to understand how their wages were currently worked out;[46]
· some supported employees and their families were concerned about the possible impact of wage increases on the DSP;[47]

· the proportion of supported employees whose wage would cause their DSP to begin to be tapered would increase from 63% to 76% under the new structure; [48]

· over half of all supported employees who spoke of the impact of a change in wages on their working hours indicated that if the new wage assessment structure impacted their DSP, they would not change their working arrangements, with one-third being unsure; [49] and

· supported employees most commonly felt “ok” or even positive about being timed by both internal and independent assessors, but a smaller number felt nervous or anxious. [50]

The Report made a number of recommendations concerning “adjustments to support a successful transition” by ADEs and employees to the proposed new wages structure. In summary, these were:

(1)Develop a change management plan and accompanying communications plan which provide for clear, consistent and repeated communications to support the transition by providing information about the new structure, its rationale, the transition process, the available supports and how it will operate.[51]

(2)(a) Determine a feasible timeframe for transition having regard to the time required to agree on supports to be provided to ADEs and employees, communicate with ADEs and employees via a centralised communication plan, provide training on the modified SWS in the ADE context and arrange for independent assessors to assess all supported employees.

(b)Consider setting a starting point for new wage changes to come into effect across the sector to ensure equitable application of the new wage assessment structure for supported employees across different ADEs.

(c)It is suggested that a few years would be required for the transition after the Commission’s final determination, if the time required for agreement on supports to be provided and allowance of a buffer for delays (which the trial suggests should be expected) are factored into the timeframe.[52]

(3)In respect of the modified SWS, clarify the benchmarking process including how to proceed where there is not a comparator who regularly performs the same task at 100% productivity, consider developing a benchmark index of common tasks which can be used as a reference point when benchmarking, clarify what constitutes “all major duties and tasks” in an ADE context, consider whether internal assessments should be required and clarify that internal and external assessments must be conducted separately, build in time to assessments so employees can meet assessors in advance, identify circumstances where fewer than three timings of a task are acceptable, clarify that supported employees should receive support during an assessment and when an assessment should be paused or stopped, provide guidance as to virtual assessments being used and provide a FAQ sheet addressing the issues identified in the ARTD Trial.[53]

(4) (a) Consider providing further guidance on the new Grades A and B and the changes to Grades 1-7, including clarifying the gateway requirements and case studies or examples of particular industries.

(b)If possible, consider amending the definitions so that ADEs do not reach a result where a supported employee can fall within multiple categories.

(c)Consider providing guidance on situations where some of a supported employee’s work could fit in one Grade and some in another.[54]

(5)Provide training on conducting SWS assessments in the ADE context and consider providing training on the wage grades under the SES Award; and other proposals concerning.[55]

(6)Improve support by providing a centralised help desk during the transition concerning the modified SWS and the proposed new wage grades to ensure consistent application of the wage grades and explore the potential for ongoing supports.[56]

(7)Consider the development of a user-friendly assessment data collection tool for the proposed new wages structure.[57]

(8) (a) Provide funding for ADEs to absorb wage increases.

(b)Fund independent assessments.

(c)Consider whether funding would also be provided to support ADEs with the implementation process with consideration to the need for attendance at training to support quality implementation, the responsibilities of employers for conducting wage assessments, the reported additional time taken for SWS assessments compared to existing wage assessment tools, and the potential for implementation to become more efficient over time.[58]

(9)Implement a change management approach and associated communications plan, including starting to communicate information about the new wage assessment structure to supported employees and their support networks months in advance to prepare them for the transition, providing ongoing communication from the Commission or the Commonwealth Department of Social Services (DSS) to support understanding, and providing communications that include the rationale for the changes and how to make informed decisions about the interaction between wages, working hours and the DSP.[59]

(10)Engage support networks by communicating with families about the new wage assessment structure where this is required and desired by the supported employee.[60]

(11)Provide communications material in a range of formats for supported employees and their families/support networks to understand the transition and the new wage assessment structure.[61]

(12)Hold information sessions for supported employees and their support networks; provide a centralised help desk during the transition to help supported employees and their support networks to understand the new wage assessment structure; provide supported employees with information and support to make informed decisions about their working hours if their wage increases will affect their DSP; provide supported employees with information and support to understand their responsibilities around tax returns if they need to provide these for the first time.[62]

(13)Provide support for assessments by giving adequate notice to supported employees for their assessments; building in time to the assessment process to enable supported employees to meet assessors ahead of their timings so they are comfortable; clearly explaining the task and when to start and stop; aligning with supported employees’ normal schedules (where possible); keeping the environment as close to the normal work environment as possible and remaining unobtrusive but focused to minimise supported employees’ potential anxiety.[63]

The Report also made a number of recommendations concerning transition considerations for independent SWS assessors.[64]

OUTLINE OF THE PARTIES’ POSITIONS

ABI and NDS

The fundamental position of ABI and National Disability Services (NDS) is that we should proceed to vary the SES Award to establish Grades A and B with the rates of pay proposed in the December 2019 decision. However, with respect to the use of the modified SWS as part of the “preferred approach” in the December 2019 decision, they expressed concern as to the capacity and willingness of the DSS to source and fund the expansion in the number of SWS assessors necessary to apply the modified SWS to the whole of the ADE sector and its approximately 16,000 employees within a limited time period. As an alternative, ABI and NDS propose that the use of the SWS be abandoned and that, instead, new subclassifications for Grades A and B be introduced. This proposal (as amended), incorporating a further, separate proposal to clarify the “gateway” requirements for Grades A and B, is as follows (ABI Structure):

“B.1 Explanation of Classification Structure

B.1.1Grades A and B of the classification structure in this Schedule apply to any employee with a disability for whom an employer has created or tailored a job in such a way that they are capable of being performed by a particular person with a particular disability or by persons with a class of disability that does not fall into Grades 1-7 above.

For example, a set of work functions which is capable of being performed as a single job by a single person not relevantly affected by disability is broken up into a number of discrete tasks, each of which will be made into a separate job that aligns with the work capacities of a particular person with a disability or by persons with a class of disability.

This is not the normal case of the employer requiring the employee to perform only a very confined task because the employer considers this to be the most efficient way to conduct its business; rather it is a case of the restricted work capacity of the employee with a disability effectively dictating the nature of the job in which the employer may employ them. The person with a disability does not therefore perform the “whole job” which the relevantly non-disabled person is capable of performing, notwithstanding that the tasks performed by the person with a disability may constitute part of those that might be performed by the relevantly non-disabled person.

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 and they are (subject to any necessary training) capable of performing the full range of duties in the classification descriptors

B.2 Grade A

B.2.1 Grade A1

Employees at this grade will perform a simple task or tasks consisting of up to three sequential steps or subtasks, any of which may involve the use of jigs or equipment or tools with basic functionality, under direct supervision and constant monitoring and who also require regular assistance to keep on task.

B.2.2 Grade A2

Employees at this grade will perform a simple task or tasks consisting of up to three sequential steps or subtasks, any of which may involve the use of jigs or equipment or tools with basic functionality, under direct supervision and constant monitoring.

B.3 Grade B

B.3.1 Grade B1

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

B.3.2 Grade B2

Employees at this grade will perform a simple task or tasks consisting of more than three sequential steps or sub-steps, each of which may involve the use of mechanical or electric equipment or tools, under direct supervision with regular monitoring and who self-advocates their own and/or others task progress, issues or errors to a supervisor.

In respect of the operative date and phasing-in period for the proposed new wages structure, ABI and NDS contend that it is uncontroversial that any new wages structure will lead to significant wage increases for a great many employees, and that an appropriate transitional period is necessary to ensure that implementation of the structure occurs in a way that ensures the financial sustainability of the supported employment sector. In that respect, ABI and NDS contend that there should be “a phasing-in period of 8 years”. However, beyond that proposition, they did not advance any actual phasing-in proposal.

Our Voice

Our Voice’s position is that Grades A and B require re-consideration with “perhaps” more grades and/or different levels within grades. It proposes that there should be a transitional period of about five years, overseen by the Commission. However, Our Voice’s position was subject to clarification of the financial support, both as to the cost of implementation of the modified SWS across the sector and the cost of wage increases, by the DSS.

AEDLC, ACTU and UWU

The AEDLC contends that the Commission lacks jurisdiction under the FW Act to implement the preferred approach in the December 2019 decision.

The AEDLC together with the ACTU and the UWU contend, independent of any issue of jurisdiction, that the classification structure in the SES Award should be confined to Grades 1-7, and that Grades A and B (and proposed provisions associated with them) should not be introduced. They also contend that the SWS, in the form contained in the SES Award, should be available to measure productive capacity for employees with a disability, subject to any textual alterations to the award that might be required to implement the recommendations of the Report. In addition, they contend that no existing ADE employee should suffer a reduction in remuneration as a result of any changes arising out of these proceedings.

EVIDENCE

A summary of the witness evidence and the facts agreed between the AEDLC, the union parties, ABI and NDS is set out below.

ABI and NDS

Chris Christodoulou

Chris Christodoulou[65] made one witness statement in this part of the matter (having previously made a number of witness statements and given oral evidence) and was subject to cross-examination. Mr Christodoulou has been the Chief Executive Officer of Greenacres Disability Services (Greenacres) since 2014. Mr Christodoulou said Greenacres did not participate in the ARTD Trial. Mr Christodoulou noted that in mid-June 2022, ABI requested that he undertake a trial (ABI Trial) in which he would apply the proposed new classification structure set out in the December 2019 decision to a sample of Greenacres’ workforce and grade the employees in that sample in accordance with that structure. Mr Christodoulou said he undertook the following steps in the trial:

· Reviewed Greenacres’ workforce and selected a sample of 10 employees who because of the type of work they perform and level of ability and support needs Mr Christodoulou considered constituted a “fair sample”[66];

· With Peter Williams, a Senior Supervisor who has been employed at Greenacres for 13 years, took the following steps in relation to the sample selected:

(a) Identified the typical duties usually performed by each person;

(b) Identified whether or not they met the criteria for receiving the DSP;

(c) Identified whether Greenacres had created a position for the employee that consisted of duties/tasks and supervision tailored for their circumstances;

(d) Where the circumstances in (c) applied, considered the classification descriptors in Grades A and B and decided which one the employee would fall into; and

(e) Where the position duties/tasks and level of supervision had not been tailored to the circumstances of the employee, they considered which of Grades 1-7 the employee would fall into.

Mr Christodoulou noted that a difficulty he faced in undertaking the trial was that there is currently a lower level of production at Greenacres due to lack of sales, meaning that some employees were not performing their usual work. The assessment was therefore based on what work the employee usually performs and/or is capable of performing, rather than what they were actually performing at the time of the trial. Mr Christodoulou considered the assessment process was largely straightforward, and that the proposed new wages structure could be applied without any significant difficulty. He suggested that an appropriate higher duties clause may be necessary when a supported employee in (for example) Level B is being trained to gain further skills.

As to the implementation of the modified SWS component of the proposed new wages structure, Mr Christodoulou said it was not clear based on the DSS’s submission dated 22 April 2022 whether it would be prepared to pay for all SWS-type assessments. Mr Christodoulou also said that the size of the current assessor workforce indicated that there would not be enough assessors to assess over 10,000 employees per year. In this context, Mr Christodoulou said he had concerns around how modified SWS assessments would take place within the constraints of the existing workforce, what this would mean for the quality and consistency of the assessments and how these assessments would be funded.

Mr Christodoulou also described applying the ABI Structure to a sample of the Greenacres workforce at ABI’s request. Mr Christodoulou said that based on his experience applying this structure it was easy to apply and would provide for an increase in rates of pay for supported employees. Mr Christodoulou said that based on his experience, he supported the adoption of the ABI Structure because it would do away with the administration, cost and disruption of productivity associated with having to conduct individual SWS-type assessments each year or when an employee changes roles.

Mr Christodoulou responded to the statement in paragraph [28] of Mr Grzentic’s witness statement that Greenacres is an example of a profitable ADE. Mr Christodoulou said that this statement was “misleading and indeed completely wrong”[67] for a number of reasons, including:

· The financial information to which Mr Grzentic referred included more than just its ADE operations. Mr Christodoulou said that when the financial results are broken down Greenacres’ ADE has a deficit in excess of $300,000 for financial year 2019/20 and was not a profitable part of the business.

· The 2019/20 financial year was not a typical year for the purposes of assessing business financial performance because of the impact of the COVID-19 pandemic. Mr Christodoulou noted that the JobKeeper payment, introduced from March 2020 had a positive impact on Greenacres’ position in this financial year, but that ultimately caution should be exercised when considering one year of financial results.

· Mr Grzentic did not refer to Greenacres’ operational losses in the two previous financial years.

· Although Greenacres’ annual report for financial year 2021/22 was yet to be finalised at the time of Mr Christodoulou’s statement, he indicated that it would reflect a deficit of well over $1 million, mostly derived from the ADE component of its business.

In cross-examination Mr Christodoulou said that Greenacres sought out work opportunities but did not always take the work on because the amounts of money that commercial clients offered Greenacres to perform the work were not sustainable. He agreed that his evidence about how the proposed new wages structure would apply is based only on how it would apply at Greenacres, not ADEs generally. Mr Christodoulou agreed that he was involved in developing the ABI Structure along with other ADE operators.

Mr Christodoulou said that since the COVID-19 pandemic began, less work had been coming in to Greenacres, which he put down to much of the work coming from overseas before the pandemic and also the fact that hand packaging work could be completed more cheaply by non-ADE organisations “through technology”.[68] Mr Christodoulou was also cross-examined about Greenacres’ financial report for the year ending 30 June 2021[69] and agreed that the wages of non-disabled workers comprised a larger proportion of Greenacres’ costs than did the wages of disabled workers. Mr Christodoulou also acknowledged that the JobKeeper payment made a “considerable difference” to Greenacres’ profit and loss.[70]

Kristian Dauncey

Kristian Dauncey[71] is the Group Chief Executive Officer of Knoxbrooke Incorporated (Knoxbrooke), which operates an ADE in Victoria through a subsidiary, Knoxbrooke Enterprises Limited. The ADE employs 109 supported employees. Mr Dauncey gave evidence in this matter in February 2018 and attached his previous witness statement[72] to his most recent one, along with transcript[73] of his oral evidence from the previous substantive hearing.

Mr Dauncey’s evidence was that the Yarra View & Bushland Flora Nursery (Nursery) is the “flagship business”[74] of the ADE. He said that the ADE made a significant financial loss in the 2016-17 financial year and indicated that “the financial sustainability of Knoxbrooke’s social enterprises has deteriorated”[75] since then, in part because wage supplementation funding from the federal government ceased after 30 June 2021. Mr Dauncey said that the Nursery in particular was “operating at a material loss”,[76] and that Knoxbrooke would not be able to keep running it as is unless it received more financial support.

Mr Dauncey said that Knoxbrooke did not participate in the ARTD Trial, but did participate in the ABI Trial and a separate trial of the ABI Structure. His evidence was that he and his colleagues largely undertook the same steps in both trials, being:

· reviewing the guidance material ABI had provided;

· selecting a representative sample of the ADE’s employees (the same 11 were classified in both trials); and

· classifying each employee using the following process:

(a) identifying the type of duties usually performed by each employee;

(b) identifying whether or not the employee meets the impairment criteria for receiving the DSP;

(c) identifying whether or not Knoxbrooke had created a position for the employee which consists of duties and a level of supervision that are tailored for the circumstances of the employee’s disability;

(d) where the above was true, considering and discussing the classification descriptors at Grade A and Grade B to reach a consensus on the most suitable grade for the employee;

(e) where the position had not been created for the employee consisting of duties and a level of supervision tailored for the circumstances of the employee’s disability, considering and discussing Grades 1-7 to reach a decision on the appropriate grade for the employee; and

(f) in relation to point (e), where Mr Dauncey and his colleague(s) considered that the employee was performing duties above levels A and B and could fit into Grades 1 to 7, classifying the employee accordingly.

In trialling the ABI Structure, Mr Dauncey noted there was the additional step of considering the expanded classification descriptors (Grades A1, A2, B1 and B2) in that structure if an employee had been classified into Grade A or B previously, and selecting the most appropriate of those grades.

Mr Dauncey described the classification process required by both trials as “fairly straightforward”,[77] though in the ABI Trial it was “slightly more difficult”[78] to classify the one employee in the sample group whose role had not been modified on account of their disability because their duties appeared to fall between two grades in the classification structure. Mr Dauncey also noted that in the trial of the ABI Structure, there were a few employees who fell between Grades A1 and A2, or B1 and B2, and they were accordingly more difficult to classify. In those cases, he sought input from colleagues closely involved in the day-to-day oversight of the employees to assist in classification. Overall, Mr Dauncey’s view was that the Commission’s proposed new wages structure and the ABI Structure were both “capable of being applied without significant difficulty.”[79]

In cross-examination, Mr Dauncey clarified that he was not involved in the “crafting”[80] of the ABI Structure, but merely its application to Knoxbrooke ADE employees in the relevant trial. He disagreed that Knoxbrooke’s ADE is a purely commercial operation, preferring to describe it as a “social enterprise”[81] and emphasising that Knoxbrooke’s primary purpose was “to support people with disabilities through employment support and education”.[82] Mr Dauncey agreed that the Nursery had won contracts to supply plants to a number of substantial infrastructure projects in Victoria, and said he was hopeful that the Nursery’s recent “self-promotion model”[83] would mean that after years of running at a financial loss, it would break even this year.

Mr Dauncey also confirmed under cross-examination that Knoxbrooke has continued to use the SWS since adopting it in 2016, that he and his colleagues had taken into account the individual support needs of employees in the sample group when classifying them as part of the two trials described above, and that his understanding was that in trialling the ABI Structure, employees could only be classified into Grade A or B if their respective jobs had been “tailored or adjusted”.[84] Finally, he explained that all supported employees of Knoxbrooke’s social enterprises must be eligible to receive the DSP, and on that basis he had satisfied himself that the supported employees in the sample group for the two trials met the impairment criteria for the DSP.

Eric Teed

Eric Teed made one witness statement and was subject to cross-examination.[85] Mr Teed is the Executive General Manager - Work of Endeavour Foundation. He has worked for Endeavour Foundation since August 2017 in a variety of roles. His current role involves developing meaningful employment opportunities for people with a disability.

Mr Teed provided evidence in response to Kate Last’s witness statement (see paragraph [63] below and following). He said that Ms Last’s employment was transferred to the Endeavour Foundation when it took over operation of SCOPE Australia’s Australian Disability Enterprises site at Maribyrnong in 2015. In 2017, Endeavour Foundation decided to close the Maribyrnong site because its size and building constraints made it unviable for packaging operations. Mr Teed said organisational records reveal that after making this decision, Endeavour Foundation worked with each employee affected by the closure of the Maribyrnong site to determine how they would transition, including transferring to other Endeavour Foundation sites or transferring to a different employer. Mr Teed said he understands that Ms Last transferred to another Endeavour Foundation site at Keon Park where she works in a production role. Mr Teed understands that Ms Last has been absent from work since approximately 21 August 2019 and has been receiving workers’ compensation payments for some of that time. It was Mr Teed’s evidence that Ms Last’s comments in her statement about her experiences at work and the duties she performs relate to prior to August 2019, but noted that the services performed at Keon Park have not changed significantly from August 2019 to the time his statement was filed. Mr Teed also said he was unaware that Ms Last had ever worked as a Team Leader with Endeavour Foundation and has not been able to find any documentary evidence to that effect.

Mr Teed said that the work performed at Endeavour Foundation’s Keon Park site was similar to that required to be performed at any other packaging facility. Mr Teed identified three key differences between employment in production roles within ADEs and in facilities outside the supported employment sector:

1. Production facilities outside the supported employment sector utilise automation whereas ADE production facilities do not or if they do, this use is limited. Mr Teed said that this is because the mission of ADEs is to create employment opportunities rather than eliminating tasks through automation.

2. ADEs such as Endeavour Foundation can only seek out and undertake work that is appropriate for its workforce’s capabilities. Mr Teed said that this is different from production facilities outside the supported employment sector which would not usually be subject to the same limitations on the type of work that could be performed.

3. ADE production facilities design workflows and tasks based on the skills of employees as opposed to designing it purely to achieve maximum efficiency and productivity.

Mr Teed noted that most of Endeavour Foundation’s employees were limited in the types of work they are able to perform. He said Endeavour Foundation’s supervisors work with each employee to develop a set of tasks they can perform, and provide appropriate supervision in line with this. Mr Teed explained that sometimes tasks will be broken down into sub-tasks. Mr Teed did not agree with Ms Last’s evidence that she and other employees were unable to determine what tasks they would perform and that allocation did not cater to their needs, saying that tasks were designed for Ms Last (and all employees) based on safety requirements and the skills and capabilities of each employee. Allocation of these tasks depended inter alia on the other employees available, their skills and the specific production requirements. Mr Teed further noted that the role of Production Team Leaders is to work with employees to encourage them to undertake tasks which would develop their skills. He also said that supervisors are responsive if employees identify a preference not to perform a particular task, and where business requirements permit, they facilitate employee preferences. Mr Teed said that in his experience Endeavour Foundation tries to avoid allocating tasks to employees who would be unable to perform them, and also to avoid allocating simple tasks to employee who are capable of performing more complex tasks. Mr Teed acknowledged that sometimes employees are required to perform work which they may feel is too easy or not challenging enough, but said this is a sometimes-unavoidable feature of almost all working environments.

In cross-examination Mr Teed agreed that he had not met or supervised Ms Last, and that his evidence about her employment contained in his witness statement about her employment was based on her employment records and what others had told him about her work. He agreed that Endeavour Foundation used “little or no automation”,[86] and uses the Greenacres wage assessment tool. Mr Teed agreed that due to the way the NDIS operates, Endeavour Foundation is competing with other ADEs as well as open employment for workers who have NDIS plans that include employment supports. Mr Teed was taken to the Endeavour Foundation Financial Report for the year ending 30 June 2021[87] and agreed that the greater component of Endeavour Foundation’s wages costs during this period were for non-disabled workers.

Andrew Wallace

Andrew Wallace made one witness statement and was subject to cross-examination.[88] Mr Wallace is Executive Director at SA Group Enterprises Incorporated (SAGE), which is part of the Minda Group. Mr Wallace has been employed by SAGE since about 2011 and has held a range of roles over this time. He has held his current role since 2019. His role involves operational and managerial responsibilities in relation to SAGE and its business units in packaging, manufacturing, recycling, design and facilities services. Mr Wallace provided evidence in response to witness statements filed by two SAGE employees: Mr Greer and Ms Smith.

Minda Group operates a range of services for people with a disability. SAGE operates Minda Group’s supported employment services and currently has about 600 employees, approximately 350 of whom have a disability. Mr Wallace said that SAGE operates 11 supported employment businesses including a packaging business, a wood manufacturing operation, a creative design and web development business, two recycling businesses, a wine re-labelling and packaging business, a wine storage and logistics business, a facility services business, a catering business, a grounds maintenance business and a café.

Mr Wallace said that Mr Greer and Ms Smith both work in SAGE’s packaging business known as Reynella Packaging. Reynella Packaging has the capacity to operate eight to nine different production lines at the same time. Currently Reynella Packaging has 151 employees, of which 123 are supported employees and 28 do not have a disability. Of the supported employees, 121 work in the production team and two work in administration.

Mr Wallace disputed a number of assertions made in Mr Greer’s witness statement (discussed at [66] below). Mr Wallace said that the staff numbers Mr Greer provided were incorrect and the correct numbers do not demonstrate that the supervision ratio at Reynella Packaging is in fact higher. Mr Wallace said that the support SAGE provides to employees with a disability depends on several factors, including their job roles, individual needs, individual NDIS plans and expectations and the tasks being undertaken. Mr Wallace noted that there is backup supervision and support available if needed.

Mr Wallace provided evidence about job tailoring at SAGE. He said SAGE customises and tailors jobs, or parts of jobs, to suit both employees’ capabilities and support requirements. Mr Wallace provided a number of examples where this had occurred, including:

“30. For example, the organisation recently created an administration role and moved an employee from packaging operations into an administration role to expand and further develop her skillsets, and to facilitate her career aspirations. She currently fulfils that administration role 2 days per week and her substantive role for another 2 days per week. This opportunity has worked so well that the same opportunities have also been enabled at alternative sites across the organisation.
…
33. A further example was in our manufacturing business, the business recognised there was an opportunity for 3 of our employees to undergo forklift training. We were able to provide very specific training on site through a qualified staff member to fulfil a new job opportunity. An external body has been organised by SAGE to provide formal qualification for a High-Risk licence (forklift). Initially the supported forklift drivers were unable to complete the required manifests, paperwork or calculations associated with difficult loads, but have been trained to complete the main task of moving goods using a vehicle.”

Mr Wallace said that in addition to tailoring specific jobs, Reynella Packaging has a separate Training and Development team to meet employee needs in this area. Mr Wallace disagreed with paragraph [21] of Mr Greer’s statement and said that the nature of an individual’s disability is always considered.

Mr Wallace also gave evidence in relation to SAGE’s financial position. He said that its financial accounts are consolidated into the Minda Group’s financial accounts. Mr Wallace said that the 2020-21 financial year was challenging because it required the business to adapt to changes in funding and the NDIS process. Mr Wallace attached a copy of the 2020-21 Minda Annual Report to his statement and noted that, while the Minda Incorporated balance sheet was strong, there was a total operating loss of $1.8 million for the Minda Group. Mr Wallace said that NDIS funding alone is insufficient to cover the wages of support workers and noted that SAGE was not eligible to receive any supplementary funding from the government because it has not transitioned to the SWS. It currently uses the FWS Assessment Tool.

In cross-examination, Mr Wallace agreed that he did not participate in the recruitment of new staff or the day-to-day supervision of work. Mr Wallace agreed he did not participate in the process of allocating supported employees to work but said he did approve what supports were required for individual employees. Mr Wallace agreed that because NDIS funding alone did not cover SAGE’s wages, it required commercial revenue to address any shortfall. Mr Wallace agreed that supported employees at SAGE might receive NDIS funding for a range of outcomes including building essential foundational skills for work through on-the-job training, direct supervision or group-based support. Mr Wallace agreed that SAGE might also provide physical assistance with supported employees’ personal care in the workplace but that this was “very minimal”.[89] Mr Wallace agreed that commercial considerations factored into how SAGE operates but said further: “the key factor… first and foremost is creating meaningful employment.”[90]

Our Voice

Our Voice tendered 14 anonymised witness statements[91] (the unredacted versions having been provided only to the Commission) from current supported employees of the ADE operated by Activ Foundation (Activ) in Western Australia. Activ is expected to cease its ADE activities at the end of 2023.[92] We directed that the 14 employees were not to be the subject of cross-examination. Their witness statements were demonstrative of the following broad propositions:

· they are unhappy about the expected impending end to their employment with Activ, and fear that they will not find alternative employment afterwards;

· some of the employees have worked for the same ADE for a long time, with the longest-serving of the 14 having worked for Activ for over 50 years;

· approximately half of them have tried open employment, but all who had done so had negative experiences and returned to work in ADEs; and

· the employees greatly enjoy the dignity, sense of purpose and social interaction that working at an ADE has provided them, and worry that they will become sad, bored and lonely if they cannot work there any longer.

AEDLC

Kairstien Wilson

Kairstien Wilson is the Supervising Legal Practitioner at AEDLC.[93] She made one witness statement (Wilson statement) after the December 2019 decision in relation to the jurisdictional objection advanced by AEDLC, dated 13 May 2022, and was not required to attend for cross-examination. Ms Wilson attached a number of prior submissions made by AEDLC in this matter to her statement. In response to the DSS’s submission that the Report was produced in consultation with a steering committee that included AEDLC, Ms Wilson confirmed she represented AEDLC on the committee, but its membership was suspended between October 2020 and 25 March 2021. Following this, Ms Wilson was permitted to resume her involvement on the steering committee but was not involved in discussions concerning the design of the evaluation.

AEDLC, UWU and ACTU

Kate Last

Kate Last[94] is a supported employee who works part-time for the Endeavour Foundation on a production line. She commenced this role on 2 May 2011. She made one witness statement and was not required for cross-examination. In her witness statement, Ms Last explained that supervisors oversee work on the production line and Team Leaders maintain the workflow on the production line by assisting workers who may have fallen behind. Team Leaders are also supported employees, and Ms Last said she has held a Team Leader role in the past. Ms Last said she thinks there are 20 employees on each belt and that these employees have a range of disabilities and as a result require different levels of assistance to complete their tasks.

At the commencement of each shift, Ms Last’s supervisor tells her what job she will be doing for that shift, and she cannot choose or change her job once it has been allocated. Ms Last said that this allocation does not cater for any of the employees’ needs. Ms Last said that sometimes on the production line her role is to pack sugar sticks into boxes and then to pack 12 of these boxes into a larger box to be loaded onto pallets, which are then sent to supermarkets to be sold. Ms Last said that when she was a Team Leader she would help other workers on the production line with their duties if they were having difficulty. This included helping with stacking and ordering boxes, providing more sugar packets and getting more boxes for workers in wheelchairs.

When Ms Last first started working at the factory she was paid $2.00 per hour and is now paid about $8.00 per hour. Although Ms Last accepts that she and some co-workers may have difficulty in a non-supported (open) employment role, she believes she is not paid the amount she deserves for her work and believes this is not fair.

Donald Greer

Donald Greer made two witness statements in this matter and gave evidence before us.[95] Mr Greer works full-time for Minda Incorporated as a vocational services officer (VSO), sometimes also known as a team leader. Mr Greer described his role as providing support and supervision to supported employees and meeting production requirements within packaging services. This involves the packaging of commercial products and components according to the particular instructions for the job which can vary depending on the company it is for. Mr Greer identified an example of work performed for a major national electrical appliance company. Mr Greer explained that the company first provides a purchase order, and Minda then puts together a work order which the VSOs use to instruct supported employees on the work they will be required to perform. This might include things like packaging light switch components into small plastic bags and “there might be anywhere between (for example) 1000 or 10,000 sets of [components] that need to be packaged, with 4 of each component in each package.”[96] During a job like this Mr Greer said he would often work with up to 20 supported employees at a time, even though he should work with no more than 10. Mr Greer said that the assistance he would be required to provide in these circumstances could involve giving visual cues of what is required or providing assistance in performing the work. Mr Greer said that he would also work alongside supported employees to contribute to production deadlines. Different employees require different levels of support. If a supported employee is unable to perform the particular task at all, they will usually be reassigned to a different job at their VSO’s discretion.

Minda also employs line leaders who are non-disabled workers who perform the same work as supported employees so that deadlines can be met. Mr Greer said that he does not believe line leaders are required to hold qualifications in disability support and they do not perform support functions like VSOs do.

Mr Greer said that in his experience supported employees are not assigned work based on the nature of their disability, which in his experience included a range of different physical and intellectual disabilities. Instead, these employees are assigned tasks based on what needs to be completed, and VSOs will work with the employee as needed to ensure the work is completed. Sometimes this approach to assigning work leads to disappointment on the part of supported employees because they may not be assigned a particular job they would prefer to do.

Mr Greer’s further witness statement was made in response to Andrew Wallace’s witness statement. Mr Greer said that he has never seen Mr Wallace on the shop floor where he works. In response to Mr Wallace’s evidence about job tailoring, Mr Greer gave evidence consistent with his initial witness statement and said that employees are engaged and placed in pre-existing roles based on commercial needs and, if they cannot perform these roles, they are usually assigned to other duties. Mr Greer explained that when new employees start they are usually trialled in a number of different roles to work out what their skills and capabilities are to ensure that appropriate roles are assigned to them going forward. Mr Greer provided an example where a supported employee was unable to perform a more complicated role. Instead of making adjustments to the role, this employee was assigned back to Mr Greer’s area where simpler tasks could be performed for commercial reasons.

During cross-examination, Mr Greer said that while he knew that new supported employees were assessed before being assigned to a particular team, he had “never actually seen it happen and [he had] never been involved”.[97] He was not familiar with the “Initial Skills Assessment” document that he was shown during the hearing.

Mr Greer went on to explain that training of supported employees in the particular tasks that are required for the contract Minda was fulfilling at any given time was largely delivered “on the job”.[98] He said that if he felt a particular supported employee was not up to performing a particular task, he would either tell the trainer who presented that employee to him and his team initially, or his area supervisor. In re-examination on this issue, he clarified that when he said a supported employee might be assigned to another job if a VSO deemed them unable to perform their original job at all, he meant that they might be assigned to another “pre-existing”[99] job.

Mr Greer also explained under cross-examination how he might use visual cues and/or jigs[100] to help supported employees perform tasks accurately, using the specific example of packing a set number of caps (for light switch screws) into a plastic bag. He said that his reference to any “difficulty”[101] that a supported employee might encounter could encompass both difficulties performing the task accurately (for example, counting out the right number of caps) and behavioural difficulties like becoming anxious after having made a mistake with the task at hand. He also agreed that he endeavoured to make the supported employees’ work “fulfilling” by providing “as much variety as they want”.[102]

Mr Greer also expanded on the impact that certain disabilities had on supported employees’ ability to perform the job as required. He gave the examples of some employees with autism being overly focused on one part of the job rather than the whole and becoming anxious or frustrated, and employees with Down Syndrome insisting on performing a task “their way”,[103] which is inconsequential if the result is as required, but problematic if not.

Robyn Smith

Robyn Smith made two witness statements and was subject to cross-examination.[104] Ms Smith works as a VSO for Minda Incorporated within packaging services. Ms Smith has held this role since approximately 2015. Before this, Ms Smith worked for Minda as a disability support worker from 2009.

Ms Smith described her role as including performing jobs for commercial clients involving packing or unpacking and repacking items to specific requirements. Ms Smith provided an example of this work for a company that makes pet treats. The company client would provide Minda with the requirements for the job, which the VSOs would then use to provide instructions to the supported employees tasked with completing the job. Ms Smith said she normally works in small groups with three supported employees, but sometimes works one-on-one with a supported employee who requires more support from her. Ms Smith said her role in practice mostly involves performing the same work that the supported employees are performing, as well as supervising and supporting them. Ms Smith said Minda also employs line leaders who are non-disabled employees who perform the same work as supported employees to ensure production targets are met, but are not required to provide support to supported employees.

To the extent that former s 156(3) of the FW Act is applicable to the variations, we are satisfied that the variations are justified by work value reasons. As explained in paragraphs [369] and [371]-[373] of the December 2019 decision, the new Grades A and B and the modifications to Grades 1-7 are intended to “provide a classification structure which accommodates in a comprehensive way the jobs which the evidence shows actually exist in the ADE sector and properly reflects their work value”.[165] The descriptor for each classification is now drafted in a way which bases the application of the classification upon the nature of the work and the level of skill and responsibility involved in doing the work at that level. The wage rates set for Grades A and B are, we consider, appropriate for the nature of the work and the skills and responsibilities required at those levels. In reaching this conclusion, we have taken into account the relative work value of those grades compared to Grade 2, the existing wage rates for work of that nature paid by ADEs, and the findings in the Report.

OTHER MATTERS

There are two separate matters which require consideration apart from the wages structure in the SES Award:

(1)the definition of the expression “supported employment services” in clause 4.3, by reference to which clause 4.1 specifies the coverage of the SES Award; and

(2)a proposal advanced by Our Voice to vary clause 32, Rights at work for supported employees, to require that certain obligations for which the clause provides be discharged “in a timely manner”.

Award coverage

In paragraph [386] of the December 2019 decision, the Full Bench adverted to a submission made by the DSS in respect of the coverage of the SES Award to alter the definition of “supported employment services” (now) contained in clause 4.3 of the award to ensure that it properly reflected the definition of that expression in s 7 of the DS Act. In relation to that submission, our provisional view is that clause 4.3 should be varied to provide as follows:

4.3 Supported employment services has the meaning given to that term in section 7 of the Disability Services Act 1986 (Cth).

Our Voice proposal

At paragraphs [384]-[385] of the December 2019 decision, the Full Bench acceded to a proposal advanced by Our Voice to vary the SES Award to include a clause concerning “Rights at work for supported employees”. The provision is now clause 32 of the SES Award, and in broad terms confers special entitlements upon supported employees in respect of the provision of information, representation and consultation. Our Voice now seeks that clause 32 be varied as follows (with the additional words sought in bold):

32. Rights at work for supported employees

32.1When 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.

32.2Such reasonable steps will include, but are not limited to, the following:

(a)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;

(b)providing information in relation to seeking information and or assistance from the Fair Work Ombudsman;

(c)providing information in a timely manner 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.

32.3In addition to those matters listed in clause 32.2 the employer shall take reasonable steps to provide the opportunity in a timely manner 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.

32.4Such matters shall include but not be limited to the following:

(a)consultation about significant workplace change under clause 29—Consultation about major workplace change;

(b)consultation about changes to rosters or hours of work under clause 30—Consultation about changes to rosters or hours of work;

(c)any dispute under clause 31—Dispute resolution or other grievance;

(d)wage assessments under clause 18.1 and Schedule D—Supported Wage System;

(e)any disciplinary matter; and

(f)performance appraisals.

Our Voice’s claim arises out of the circumstances in which the closure of seven ADE worksites operated by Activ in Western Australia was publicly announced at the same time that some 700 supported employees were notified of their redundancy. Our Voice submitted that the timing of this announcement “denied those employees of the opportunity to access the necessary supports they needed to deal with this workplace issue at the time”. The variation it proposes is intended to address this situation.

We are not persuaded that clause 32 should be varied in the manner proposed. The requirement in clause 32.1 to take “all reasonable steps” and in clause 32.3 to take “reasonable steps” already imports a condition of appropriate timeliness in order to make the operation of those provisions effective. The variations proposed do not actually address the circumstances of the announcement of the Activ closures where, on the limited information before us, it appears that redundancies were publicly announced before any consultation with affected supported employees. If so, this may raise a question about whether clause 29, Consultation about major workplace change (operating in conjunction with clause 32) was complied with, but that is a different issue not addressed by Our Voice’s proposed variations to clause 32.

NEXT STEPS

A draft determination to give effect to our decision (including the provisional views expressed) will be published with this decision. Parties may file submissions by 5.00 pm on 30 November 2022 addressing the following matters only:

(1)the provisional view concerning the modification to the “gateway” requirements for Grades A and B (see paragraph [246] above and proposed clause A.1.1 of the draft determination);

(2)the provisional views concerning the operative date for the variations and the transitional arrangements (see paragraphs [260]-[265] above and proposed clauses 15.2 and Schedule I and the operative date of the draft determination);

(3)the provisional view concerning alteration of the requirements as to the timing of SWS assessments (see paragraph [256] above and proposed clause D.7 of the draft determination);

(4)the provisional view concerning the redrafting of the definition of “supported employment services” in connection with the coverage of the SES Award (see paragraph [273] above and proposed clause 4.3 of the draft determination); and

(5)any other drafting issues identified in the draft determination.

Where any party proposes in its submissions that the draft determination be modified, it shall file with its submissions a marked-up version of the draft determination which sets out the amendments sought.

We will additionally provide parties, on request (to be made on or before 30 November 2022), an opportunity to make oral submissions about the issues identified in paragraph [277] above. We will reserve the morning of 7 December 2022 for this purpose.

We will consider all submissions made in response to the draft determination and then issue a final determination varying the SES Award to give effect to the December 2019 decision, this decision, and any further decision we make in response to the submissions. Once that is done, the 4 yearly review in respect of the SES Award will be complete. Any future review of the wages provisions of the SES Award will be conducted via separate proceedings instituted in accordance with the FW Act.

VICE PRESIDENT

Appearances:

M Harding SC for the AED Legal Centre, Australian Council of Trade Unions, United Workers Union and Health Services Union, with S Kemppi for the Australian Council of Trade Unions.

N Ward with C Simmons for Australian Business Industrial and the NSW Business Chamber.

E Gruschka for the Commonwealth Department of Social Services.

C Christodoulou for Greenacres Disability Services.

K Langford for National Disability Services.

M Walsh for Our Voice Australia.

Hearing details:

2022.

Sydney, with video link to Melbourne using Microsoft Teams:
15, 16, 17 and 18 August.

Attachment A – Proposed new wages structure for the purposes of the ARTD Trial contained in the March 2020 decision

Schedule B—Classifications

B.1 Explanation of Classification Structure

B.1.1Grades 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.1.2Grades 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 steps or sub-tasks, any of which may involve the use of jigs or equipment or tools with basic functionality, 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 steps or sub-tasks, each of 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 and 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:

(a)above and 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 or an equivalent level of training and experience. 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; or

(b)encompassed in any of 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:

(a)above and 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 an equivalent qualification or an equivalent level of training and experience. 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; or

(b)encompassed in any of the following award 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

Employees at this grade will perform work above and 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 or an equivalent level of training and experience. Such employees will perform the work described below:

· assess the ability of an employee with disability to carry out specific work tasks; and/or
· design, develop and provide individual instruction or training for an employee with a disability; and/or
· undertake specialist functions in the workplace such as procurement or marketing; and/or
· supervise employees in a section of the workplace.

B.10 Grade 7

Employees at this grade will hold a qualification at AQF IV to or above, of which one third of the competencies are related to the supervision or training of employees, or an equivalent qualification or an equivalent level of training and experience. 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 perform the work described below:

· co-ordinate and supervise employees; and/or
· have responsibility for the content and delivery of training; and
· be capable of operating all of the equipment or tools to be used by employees that they are supervising or training.

[1] Throughout this decision the expression “employees with a disability” is used where necessary because this is consistent with the terminology used in the Fair Work Act 2009 (Cth) and the SES Award. However, we acknowledge that such employees are also commonly referred to as “employees with disability” and “persons with disability”.

[2] [2019] FWCFB 8179

[3] Then named the Supported Employment Services Award 2010

[4] [2019] FWCFB 8179 at [245]

[5] Ibid at [247]-[248]

[6] Ibid at [249]-[252]

[7] This dollar amount and the amounts immediately following are as at the date of the December 2019 decision.

[8] [2019] FWCFB 8179 at [253]

[9] Ibid at [348]-[364]

[10] Ibid at [365]-[366]

[11] Ibid at [367]

[12] Ibid

[13] Ibid at [369]

[14] Ibid at [371]

[15] Ibid at [373]

[16] Ibid at [374]

[17] Ibid at [376]

[18] Ibid at [377]

[19] Ibid at [378]

[20] [2020] FWCFB 343

[21] [2020] FWCFB 1704

[22] Association for Employees with a Disability v Commonwealth of Australia [2021] FCAFC 36, 305 IR 203

[23] [2021] FWCFB 3139

[24] Ibid at [6]-[7]

[25] [2022] FWCFB 6

[26] Ibid at [8]

[27] Ibid at [9]

[28] Ibid at [10]

[29] Directions, 15 February 2022

[30] Our Voice position document, 21 February 2022

[31] ABI and NSWBC position document, 15 March 2022

[32] AEDLC and unions position document, 16 March 2022

[33] Report page 7

[34] Ibid page 9

[35] This figure is the result of applying the outcome of the Commission’s 2020-21 annual wage review to the absolute minimum wage of $3.50 per hour prescribed at paragraph [374] of the December 2019 decision.

[36] Report page 54

[37] Ibid page 13

[38] Ibid pages 9, 53

[39] Ibid page 11

[40] Ibid

[41] Ibid

[42] Ibid page 12

[43] Ibid page 12

[44] Ibid page 12

[45] Ibid page 10

[46] Ibid page 9

[47] Ibid page 9

[48] Ibid page 9

[49] Ibid page 9

[50] Ibid page 12

[51] Ibid page 13

[52] Ibid page 13

[53] Ibid pages 13-14

[54] Ibid page 14

[55] Ibid pages 14-15

[56] Ibid page 15

[57] Ibid

[58] Ibid

[59] Ibid page 16

[60] Ibid page 16

[61] Ibid page 16

[62] Ibid page 16

[63] Ibid page 16

[64] See, e.g, ibid page 15

[65] Witness Statement – filed 8 July 2022, Exhibit J; Transcript, 15 August 2022 at PNs 45-306

[66] Witness Statement – filed 8 July 2022, Exhibit J at [12]

[67] Ibid at [43].

[68] Transcript, 15 August 2022 PNs 186-187

[69] Greenacres General Purpose Financial Report for Year Ended 20 June 2021, Exhibit L.

[70] Transcript, 15 August 2022 PN 253

[71] Witness Statement – 8 July 2022, Exhibit R; Transcript 16 August 2022, PN 712

[72] Witness Statement – 8 July 2022, Exhibit R at attachment A

[73] Ibid at attachment B

[74]Ibid at [7](b)

[75]Ibid at [13]

[76] Ibid at [15]

[77] Ibid at [32] and [41]

[78] Ibid at [32]

[79] Ibid at [33] and [44]

[80] Transcript, 16 August 2022 at PN 728

[81] Ibid at PN 736 ff

[82] Ibid at PN 739

[83] Ibid at PN 754

[84] Ibid at PN 827

[85] Witness statement – 8 July 2022, Exhibit M; Transcript, 15 August 2022 at PNs 326-492

[86] Transcript 15 August 2022, PN 366

[87] Exhibit O

[88] Witness Statement – 7 July 2022, Exhibit P; Transcript, 15 August 2022 at PNs 507-683

[89] Transcript, 15 August 2022 at PN 573

[90] Ibid at PN 592

[91] Exhibit H

[92] Exhibit AC, which includes ABC News article Activ's disability industrial worksites to stay open for another 18 months, but families want more certainty (19 June 2022).

[93] Witness Statement – 13 May 2022, Exhibit B.

[94] Witness Statement – 20 May 2022, Exhibit C

[95] Witness Statement – 20 May 2022, Exhibit T; Further Witness Statement – 22 July 2022, Exhibit U; Transcript, 16 August 2022 at PNs 862-1041

[96] Witness Statement – 20 May 2022, Exhibit T at [13]

[97] Transcript, 16 August 2022 at PN 909

[98] Ibid at PN 934

[99] Ibid at PN 1038

[100] As reflected in Exhibit V

[101] Witness Statement – 20 May 2022, Exhibit T at [16]

[102] Transcript, 16 August 2022 at PN 998

[103] Ibid at PN 1021

[104] Witness Statement – 20 May 2022, Exhibit W; Further Witness Statement – 22 July 2022, Exhibit X; Transcript, 16 August 2022 at PNs 1054-1145

[105] Transcript, 16 August 2022 at PN 1120

[106] Witness Statement – 20 May 2022, Exhibit Y; Further Witness Statement – 21 July 2022; Transcript, 16 August 2022 at PNs 1157-1444

[107] Witness Statement – 20 May 2022, Exhibit Y at [34]

[108] [2012] FCAFC 192, 208 FCR 1

[109] Ibid at PN 1335

[110] Witness Statement – 20 May 2022, Exhibit AA; Witness Statement – 22 July 2022, Exhibit AB; Transcript, 17 August 2022 at PNs 1486-1670.

[111] Transcript, 17 August 2022 at PNs 1502-1518

[112] Witness Statement – 20 May 2022, Exhibit AA at [6]

[113] Transcript, 17 August 2022 at PNs 1624-1626

[114] Witness Statement – 21 July 2022, Exhibit F.

[115] Supplementary Witness Statement – 22 July 2022, Exhibit E

[116] Witness Statement – 21 July 2022, Exhibit D

[117] Witness Statement – 4 August 2022, Exhibit G

[118] Now clause 15.2 of the SES Award

[119] [2021] FCAFC 36; 283 FCR 561; 305 IR 203

[120] Social Security Act 1991 s 94(1)(c)(i)

[121] ABI and NDS submission, 8 July 2022 at [33]

[122] [2019] FWCFB 8179 at [375]

[123] Ibid at [43]-[44]

[124] Ibid at [60]

[125] Ibid at [63]

[126] Ibid at [65]

[127] Ibid at [81]

[128] Ibid at [80]

[129] Ibid at [87]

[130] Transcript, 18 August 2022 at PN 2324

[131] Ibid at PN 2354

[132] Ibid at PN 2385

[133] Supported Employment Services Award 2020 clause 32

[134] Our Voice reference material, lodged 15 August 2022, Exhibit AC

[135] AEDLC and unions submission, 20 May 2022 at [12]

[136] [2010] FWAFB 1980 at [18]-[19]

[137] DSS submission, 22 April 2022 at [17]

[138] Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161, 253 FCR 368, 272 IR 88 at [49]

[139] Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480, 205 FCR 227, 219 IR 382 at [52]-[57]; Attorney General and Minister for Industrial Relations v Metropolitan Fire and Emergency Services Board; United Firefighters' Union of Australia[2019] FWCFB 6255, 291 IR 1 at [68]-[72]; Australian Building and Construction Commissioner v McConnell Dowell Constructors (Aust) Pty Ltd [2012] FCAFC 93, 203 FCR 345, 222 IR 211 at [109].

[140] Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480, 205 FCR 227, 219 IR 382 at [52]-[53]; Australian Building and Construction Commissioner v McConnell Dowell Constructors (Aust) Pty Ltd [2012] FCAFC 93, 203 FCR 345. at [25]-[27], [69], [111].

[141] Macquarie Online Dictionary

[142] Section 156 of the FW Act has been repealed; however, pursuant to Schedule 4 to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (Cth) it remains in force with respect to 4 yearly review matters which had not been finalised on 1 January 2018.

[143] By reason of the Social Security (Active Participation for Disability Support Pension) Determination 2014 made pursuant to ss 94(3C) and (3E) of the SS Act.

[144] See [1.1.I.95] of the Social Security Guide issued by the DSS to guide the administration of the SS Act.

[145] Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris [2010] FCA 360, 218 FCR 274, 114 ALD 560

[146] Macquarie Online Dictionary

[147] See the chronology in the December 2019 decision: [2019] FWCFB 8179 at [254]-[274]

[148] Ibid at [364]

[149] [2002] AIRC 1562, PR925731

[150] [2022] FWCFB 6

[151] Ibid at [9]

[152] [2019] FWCFB 8179 at [377]

[153] Report page 86

[154] [2020] FWCFB 1704

[155] Report page 87

[156] [2019] FWCFB 8179 at [248], emphasis added

[157] [2019] FWCFB 8179 at [350]

[158] Ibid

[159] Ibid at [373]

[160] Ibid at [375]

[161] PR740627

[162] Applied to the current Grade 2 hourly rate of $21.97.

[163] [2019] FWCFB 8179 at [376]

[164] Transcript, 16 August 2022 at PNs 1205-1206

[165] [2019] FWCFB 8179 at [373]

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