Ensign Services (Aust) Pty Ltd

[2013] FWCA 5634

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Ensign Services (Aust) Pty Ltd
(AG2013/7738)

ENSIGN WESTERN AUSTRALIA - UNITED VOICE COLLECTIVE AGREEMENT 2011 (AS VARIED)

Dry cleaning and laundry services
COMMISSIONER CLOGHAN	PERTH, 12 AUGUST 2013

Application for variation of the Ensign Western Australia - United Voice Collective Agreement 2011.

[1] This is an application by Ensign Services (Aust) Pty Ltd (Applicant) seeking approval of a variation of an enterprise agreement.

[2] The application is made pursuant to s.210 of the Fair Work Act 2009 (FW Act).

[3] The enterprise agreement subject to the application is the Ensign Western Australia - United Voice Collective Agreement 2011 (Agreement).

[4] The Agreement commenced on 17 January 2012 and its nominal expiry date is 1 April 2014.

[5] In support of the application the Applicant has provided:

Form F23-Application for Approval of Variation of Enterprise Agreement;

Form F23A-Employer’s Declaration in Support of Approval of Variation of Enterprise Agreement;

Form F23B-Declaration of Employee Organisation in Support of Application for Approval of Variation of Enterprise Agreement;

a signed varied agreement.

[6] In accordance with s.210 of the FW Act, the Agreement is varied by inserting new Clause 21. Supported Wage as follows:

“21. SUPPORTED WAGE

21.1 This clause defines the conditions which will apply to employees who because of the effects of a disability are eligible for a supported wage under the terms of this Agreement.

21.2 In this clause:

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

assessment instrument means the tool provided for under the supported wage system that records the assessment of the productive capacity of the person to be employed under the supported wage system

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

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

supported wage system (SWS) means the Commonwealth Government system to promote employment for people who cannot work at full Agreement wages because of a disability, as documented in the Supported Wage System Handbook. The Handbook is available from the following website:

SWS wage assessment agreement means the document in the form required by the Department of Education, Employment and Workplace Relations that records the employee’s productive capacity and agreed wage rate

21.3 Eligibility criteria

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

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

21.4 Supported wage rates

(h) Employees to whom this clause applies will be paid the applicable percentage of the relevant minimum wage according to the following clause:

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

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

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

21.5 Assessment of capacity

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

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

21.6 Lodgement of SWS wage assessment agreement

(l) All SWS wage assessment agreements under the conditions of this clause, including the appropriate percentage of the relevant minimum wage to be paid to the employee, must be lodged by the employer with the Fair Work Commission.

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

21.7 Review of assessment

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

21.8 Other terms and conditions of employment

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

21.9 Workplace adjustment

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

21.10 Trial period

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

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

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

(t) Work trials should include induction or training as appropriate to the job being trialled.

(u) Where the employer and employee wish to establish a continuing employment relationship following the completion of the trial period, a further contract of employment will be entered into based on the outcome of the assessment.”

[7] A corresponding change has been made to the Table of Contents.

[8] The variation operates from 12 August 2013.

[9] A consolidated version of the Agreement as varied is attached to this Decision,

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

[2013] FWCA 5634

12 AUGUST 2013